It took the PRC thirty years to begin to seriously fill the legislative vacuum, and that enormous task has not yet been completed. Until 1979 it had been difficult to speak more than tentatively of a PRC legal system. To be sure, there was in the mid-1950s, after endless campaigns against landlords, rich peasants, urban businessmen and counterrevolutionaries, an effort to import the Soviet legal model that had developed from Leninist origins. But the ‘anti-rightist’ movement of 1957-9, which was a reaction to the condemnations against the Communist Party voiced during the immediately preceding ‘Let a Hundred Flowers Bloom’ period, wrote finis to that second Chinese experiment with a Western import. For over two decades, until the Cultural Revolution ended and Deng Xiaoping and his comrades announced the new policy of ‘opening and reform’, the PRC lacked most of the identifiable features of a formal legal system.

Knowing that I was then a Harvard law professor on leave in Beijing, in 1979, a senior Chinese official, who had been restored to office after suffering abuse during the Cultural Revolution, wagged his finger at me as he said: ‘The Cultural Revolution gave us (meaning the Party) a better legal education than Harvard Law School could.’ Deng too had suffered. Perhaps that accounts for his determination to establish a legal system in late 1978 despite the fact that he had played a key role in demolishing the previous mid-50s effort to create one when, as Party Secretary General, he had presided over the ‘anti-rightist’ movement.

There were many reasons why the Party saw the need to renew its effort to establish a legal system. Economic development required one, as did the newly-desired commercial cooperation with foreigners. Moreover, millions of ordinary disputes had to be settled every year. After a long period of chaos, a legal system was also seen to be indispensable to effective government of a vast nation. And it was deemed essential to both protecting the basic rights of the people against arbitrary officials and suppressing the crime that was then plaguing society.

In early 1978 there was almost no contemporary legislation, nor was the PRC a party to the many multilateral and bilateral agreements necessary for successful international relations. The courts and the procuracy were a shambles, the legal profession long since abolished, as was the Ministry of Justice. Legal education and scholarship had barely begun to revive. Today, thirty years later, the situation has dramatically improved. A multitude of new laws and regulations are now on the books, with more to come. These norms help to guide the country’s prodigious economic achievements and foreign investment and technology transfer. The PRC has also adhered to most of the multilateral treaties that grease the wheels of international relations and commerce and has a dense network of bilateral agreements with all major countries.

A court system that now handles approximately seven million cases per year has almost 200,000 judges, and almost as many prosecutors staff the rejuvenated procuracy. Roughly 160,000 lawyers play an important role in facilitating economic development and resolving disputes. Legal specialists also fill a large number of positions not only in national and local legislative agencies and government ministries and commissions, but also in major companies. Every significant city in China has its own commercial arbitration organization to supplement the China International Economic and Trade Arbitration Commission. Law schools have become one of higher education’s growth industries. And serious legal scholarship increasingly informs the system’s professional development.

Yet, the ‘socialist rule of law’ invoked by Party and government leaders is a far cry from any of the rule of law’s commonly understood meanings. Despite the importation of Western norms and forms, including constitutional endorsement of the rule of law, human rights and property rights, the Party makes no bones about its airtight control of the judiciary and the legal system generally. Its central political-legal committee and local Party counterparts ‘coordinate’ the work of the courts, the procuracy, the Ministry of Justice, the legal profession, and the regular and secret police. Although the courts dispose of large numbers of humdrum cases in conventional fashion, they are closed to many kinds of cases that are deemed ‘sensitive’, and ‘rights lawyers’ who seek to challenge government policies are persecuted and sometimes deprived of their right to practice and even prosecuted and jailed. There is no effective way to enforce constitutional rights, since the courts are not allowed to do so and the Standing Committee of the National People’s Congress has thus far been reluctant to exercise its authority. Government under law is hotly debated by experts but remains a gleam in their eyes.

Sadly, corruption, which is endemic in China, even at the highest levels, is a serious problem for the courts and other legal institutions. Moreover, ‘local protectionism’ sometimes precludes a fair trial for non-residents, not to mention foreigners, and, despite progress in legal education and training, the senior officials at many courts, especially rural ones, still lack essential professional knowledge. Criminal justice is the system’s weakest link. The police generally have more influence than the courts or the procuracy. Despite attempts to curb their powers, few legal constraints have proved effective and, if they think that the formal criminal process may not perform their bidding, they nevertheless have the option of confining people for up to three years under the supposedly non-criminal sanction of ‘reeducation through labor’ without any need to obtain the approval of a court or even a prosecutor.

Unfortunately, prospects for immediate significant reforms are dim. Since the 17th Party Congress two years ago, the Party line on law has discouraged most professional progress and called for renewal of the simple ‘mass line’ for judicial affairs that first prevailed in the rugged, rural conditions of the pre-1949 ‘liberated areas’ governed by the Party. Courts are instructed to reemphasize informal mediation of disputes instead of adjudication and, when making decisions, to rely on Party leadership, with secondary consideration also to be given to socio-economic conditions and law. One hopes that the new generation of Party leaders to be installed in 2012 will be more responsive to both popular and professional dissatisfaction with the current legal system and complete the process of establishing one that is more commensurate with China’s continuing social and economic achievements and its increasing prominence in the world.

Jerome A. Cohen is Professor of Law and Co-Director of the US-Asia Law Institute at New York University. He is also Adjunct Senior Fellow for Asia at the Council on Foreign Relations.