An abridged version of the paper has been posted to Prof. Sapio's website, Forgotten Archipelagos, which I have cross posted here. My comments will appear in a later post.
This is an abridged version of a paper I presented on 17 March 2016 at a Workshop on Zhengfa (Politics and law), held at the Australian Centre on China in the World - ANU.
1. What is zhengfa?
Beyond and before all the other meanings it bears, zhengfa is an adjective. In English, it is often rendered as 'political-legal', even though a better rendition would be politicalegal, as to underscore the element of fusion we perceive between the components of politics and law. Yet, this word does not exist in the English language. Therefore, rather than introducing another form of Newspeak, throughout this paper when necessary, I will refer to zhengfa as 'political-legal', even though the use of the hypen introduces an element of separation between 'political' and 'legal' that may or may not exists in the original concept.
Indeed, zhengfa is a conceptual category. To Chinese persons, this is a familiar conceptual category, they have encountered a countless times. To Western scholars of Chinese law, zhengfa is instead an object of analysis and discussion, or even an heuristic tool used to capture some not readily observable aspects and dynamics of the Chinese legal system. To some, zhengfa is a familiar concept, to others this concept can be confusing.
2. The Political and the Legal
The concept of zhengfa is confusing because it blurs the limits between two of the conceptual categories liberal and democratic conceptions of the law use to describe 'legal system'. These conceptual categories are, respectively, those of 'the political' and 'the legal'. The latter category is easily defined – it includes all hard and soft regulatory enactments, as well as the institutions and persons that produce, enforce, interpret, study them. The former category is not only notoriously difficult to define. It is also conceptually distinct from the category of 'legal'.
This is not the site to explore how the categorization that divided 'political', and 'legal' came about. It will suffice to say that, because this categorization exists, the 'political' is perceived as being separate and extraneous from the 'legal'. In other words, 'law' ought not to have a political function, and, it ought not to be tainted by the influence of politics, or policy. Law and politics should, rather, proceed along entirely different trajectories, as two parallel lines that never meet. This is because law is thought to have an autonomous nature – law touches, it indeed influences the most diverse domains of social existence – yet it exists separate from each one of them, within a distinct domain.
The separation between the domain of the 'legal' and the domain of the 'political' is not only conceptual. It is functional as well: law-making is conceived as a purely technical activity, autonomous and independent from administrative and judicial power.
Under this conceptual scheme, law should be made by legislators only. It is not conceivable for a judge to make new law – in fact, judges do not make law: they only interpret it. Neither it is conceivable for a government official to make law. In reality – government organs either sponsor or advocate for legislation, or enforce existing legal norms. These activities are entirely separate from the act of making the law. Society cannot make law either – they can only elect their representatives, who will then have the task to legislate on their behalf. But, law is concretely made by legislators, and legislators only.
These are some of the possible presuppositions, and the conclusions we come to, if we use two (or more) separate conceptual categories to think law and the legal system. These presuppositions and conclusions are beyond any critique, and any moral judgment. They are a fact. They may not be a material fact, in the sense that presuppositions and conclusions are not concrete objects: they cannot be seen or touched. Yet, they are an intellectual, a cognitive fact.
3. Zhengfa: the political-legal
Zhengfa is a conceptual category that is foreign to us, and hence an object of analysis. This far, we have merely scratched its surface, and we have done so by translating the characters 政法 into English. The use of this translation suggests that no neat separation exists between the two realms of politics, and the law. But, it does not bring us much further than this assertion, with all the implications this statement can have. From here, one could proceed by constructing a series of justapoxitions between politics and law on one hand, and political-legal on the other, which would be a legitimate and useful endeavor. The concept of zhengfa is, in fact, one of the most important – it not the most important – concepts on which the political-legal system is premised. As such, it occupies a central aspect in the politics and governance of China.
A different road, one that this paper attempts to walk, would be trying to understand what zhengfa means to those who belong to the political-legal system. Along this road, one could easily stray: an attempt to understand what zhengfa means may proceed by categorizing all those who use this word under different groups. Three preliminary questions to ask would then be:
(a) which criterion we adopt to categorize persons under any group;
(b) whether the adoption of this criterion needs to be justified;
(c) what considerations, or motivations, can be used to provide such a justification.
This road raises more questions than it leads to answers, though. An alternative way to proceed would be adopting any of the categorizations that already exist, and examining how zhengfa is discussed. This second choice would automatically prove how zhengfa has a variety, perhaps a genuine plurality, of meanings. Yet, perhaps, not all of the meanings that have been bestowed on zhengfa have the same weight. Some meanings may be more widely shared than others, depending on a variety of factors. This second choice would then pose the questions of how we gauge which, among all the existing meanings, is more important.
A risk inherent in any attempt to understand zhengfa would be that or projecting our own meaning over this term. Any act of exegesis is, to a certain extent, an act of interpretation, which may subtly alter the meaning of zhengfa, further leading us astray: it may be that we, the exegetes who speak to a Western audience, understand zhengfa differently from how zhengfa is understood by members of the political-legal system. If this were the case, then acts of exegesis would obscure the meaning of zhengfa, more than reveal it.
A third, and possible approach would be what I elsewhere have labelled 'impartial listening'.
4. Listening to zhengfa
How do we, then, 'listen' to zhengfa? Language is the vehicle of all communication, and while the meaning of zhengfa can be conveyed through different kinds of languages, as a matter of fact zhengfa is first and foremost expressed through verbal language.
To R. H. Mathews, the compiler of the famous Mathew's Chinese-English Dictionary, the word zhengfa was non-existent. The 1943 edition of the Dictionary, printed at Harvard, lists the meanings of zheng and its composites at page 44. Zhengfa does not figure among them, even though we know – from the work of Glenn Tiffert, how by 1943 the word zhengfa was already in use.1 Zhengfa is, however, listed in all dictionaries compiled by Chinese linguists. According to the linguists of the Chinese Academy of Social Sciences, zhengfa is “a composite name for law and politics” (zhengzhi he falvde hecheng) (1609). Indeed, in translating the terms for the use of non-native speakers, the linguists at the Jiaotong University explained zhengfa as: “politics and law” (3266).
By using a conjunction, both the Chinese Academy of Social Sciences, and the Jiaotong University drew a distinction between law and politics, rather than considering them a single, contiguous and inseparable entity, as some Western translations of zhengfa would suggest. A first step to be made then, would be, referring to zhengfa as 'law and politics', to maintain the conceptual separation that, according to native speakers of Chinese, exists between the two, while at the same time acknowledging their contiguity.
A second step to be made would be exploring what place 'law and politics' occupies within the framework of concepts that, together, constitute the ideology of the Chinese Communist Party. Elsewhere, I have written how principles in the political and legal system of the People's Republic of China can be classified along the scale of First, Second, and Third Order Concepts.2 The concept of 'law and politics' never appears in the Statute of the Chinese Communist Party,3 or in the Constitution of the People's Republic of China.4 Yet, zhengfa it is a well-established and generally accepted concept. According to how the concept it is used by those who work within the political-legal system, zhengfa is first and foremost an activity, a work. In an article commemorative of Mao Zedong 100th birthday, the Shanghai People's Procuratorate always referred to zhengfa by qualifying 'law and politics' not as an ideological principle, but as an activity – a work. Wu Yuanhan, an author working at the Shanghai People's Procuratorate did so by invoking the ideological authority of no one else than Mao Zedong, and quoting his works at length. Because 'law and politics' is a work, it has to be performed in accordance with the broader, first-order ideological principles, such as the mass line.5
This and similar statements may be taken as mere rhetoric. Alternatively, they may be interpreted as reflecting a worldview that the writer believes to be acceptable to most of his readers. I will adopt this second interpretation, and consider zhengfa as an activity, albeit one of a very special kind. Differently from others activities, zhengfa is connected, as we have seen, to Party ideology, and it has to take place in accordance with Party ideology. Besides its heavy ideological aspect, however, zhengfa is also what characterizes all those who – in different ways – practice the law. They include public security officers, prosecutors, judges and, some would argue, even lawyers. Ideas about law and politics, the relation between law and politics, need not be monolitic. They are, as recent works have shown, heavily contested and debated. Yet, contestation and debate are possible only if there is a minimum consensus on what law and politics are now. From the disagreement about how law and politics should b,e debate and dissent are born. The common ideas about what law and politics are, in the PRC, today, could be considered as the element that characterizes all those who work in the political and legal system, as well as all those who write about it both in China and abroad.
The political and the legal are contiguous, but they are not inseparably merged. In principle then, the law may achieve a degree of autonomy from politics. But if this is true of the law, then it may be true of politics as well. Politics may become autonomous from the law, that is unconstrained by the law.
3Constitution of the Chinese Communist Party, [Zhongguo Gongchandang Zhancheng], as effective from 14 November 2012, Beijing: Renmin Chubanshe, 2012.
4Constitution of the People's Republic of China, as effective from 14 March 20014, available from http://www.npc.gov.cn/englishnpc/Constitution/node_2825.htm
5Wu Yuanhan, “Reviewing Comrade Mao Zedong's important quotations on political and legal work – remembering the 100 Birthday of Comrade Mao Zedong”, [Chongwen Mao Zedong tongzhi dui zhengfa gongzuode zhongyao lunshu – jinian Mao Zedong Tongzhi shenchen 100 zhou nian], Legal Theory, [Faxue], n. 1, 1994, pp. 13-14.