Abstract
Soon after its inception in 1949, the government of the People’s Republic of China (PRO) abolished the old Nationalist laws and began building a socialist legal system. The new government rejected Nationalist legal theory, along with its laws, and sought to develop a new “socialist legality” to serve the needs of a socialist country. This process entailed a large-scale borrowing from the Soviet model. At the same time, it involved a campaign of criticism aimed at Western legal thought, especially American legal pragmatism,’ which was associated by many PRC theorists with bankrupt Nationalist legal theory. The subsequent development and reputed implementation of a socialist legal theory in China has been molded by a series of polit- ical upheavals, economic drives, and cultural movements. The final product of this process is what is commonly called Chinese Marxist legal theory.
The meaning and practical application of this theory, however, is far from evident. Recently, the PRC has again embarked on an economic and political renewal, reintroducing many of the capitalist legal structures and concepts that the early reformers sought to eradi- cate. Chinese legal theory is again in turmoil. Conservative Marxist legal theorists cling dogmatically to ideas that have proved sterile, even to the extent of justifying current reforms as consistent with Marxist doctrine. In reality, pragmatism dominates the approach of both conservatives and reformers alike.
An examination of the development of legal theory over the past 40 years reveals that part of the failure to develop a comprehensive and workable legal theory upon which a stable legal order can be built stems itself from the adoption by Chinese leaders of many of the tenets of the pragmatic approach to law that they had scorned in the early years. This commentary traces the development of legal theory in the PRC and attempts to give a new and critical evaluation of that theory. By way of conclusion, it points out the negative consequences of Chinese legal pragmatism and suggests a balance between pragma- tism and the development of a stable legal order in China.