In Memory of Jiang Ping, "Conscience" of China's Legal Profession
China's path to the rule of law is "two steps forward, one step back," the respected jurist and educator recounted in a 2010 autobiography.
China’s legal profession is mourning the loss of 江平 Jiang Ping, their collective “conscience”. The senior jurist and educator played a pioneering role in building China’s contemporary legislative system and contributing to the country’s rule of law.
Mr. Jiang Ping, a renowned jurist and legal educator in our country, one of the main founders of civil and commercial law in the People’s Republic of China, former President, Lifetime Professor, and doctoral supervisor at China University of Political Science and Law, passed away in Beijing at 12:28 PM on December 19, 2023, due to an illness that was unresponsive to treatment. He was 94 years old.
The following is excerpted from Jiang Ping’s《沉浮与枯荣：八十自述》"Rise and Fall, Prosperity and Decline: An Autobiography at Eighty".
Some terms in China are very interesting. There has been a debate about whether it should be called 法治理念 'the spirit of rule of law', 现代法治理念 'modern rule of law spirit', or 社会主义法治理念 'socialist rule of law spirit'. More conservative people use the 'socialist rule of law' to advocate their ideas. This is interesting. I remember when the 社会主义市场经济 'socialist market economy' was first proposed, people interpreted it differently: those who were more open-minded emphasized 'market economy', while conservative areas emphasized 'socialism'. Of course, what is written in the Constitution or the resolutions and reports of the National Congress of the Communist Party of China (CPC) is about finding the greatest common denominator. If you only write about the market economy, some people might not accept it; if you write about the market economy under the guidance of planning, others might not accept it either.
Thirty years of reform and opening up revolve around two main axes: one is the market, and the other is the rule of law. Both of these axes face the problem of interpretation. Therefore, we need to think carefully: what exactly does the rule of law spirit mean? I believe that today, both the market economy and the rule of law are more about converging with international trends. Although there might still be key economic lifelines that need state control in the market economy, what is the market? It should have a common language; similarly, the rule of law should have a common criterion and should reach a consensus internationally. If we don't even have these consensuses, how can we promote the spirit of the rule of law? We have just entered the spirit of the rule of law, and disagreements are inevitable, but I think it is essential to find out what is the most basic element in anything. I believe that the most basic elements in the rule of law spirit are democracy and freedom.
I often say that the development of China's [path to] rule of law is a tortuous process, or rather, two steps forward, one step back. Advance, to where? Retreat, to where? There must be a direction so that we can be responsible for history, towards a brighter and better future. It cannot be vaguely stated that 道路是曲折的，前途是光明的 the road is tortuous, but the future is bright [Zichen’s note: a common phrase by the CPC]. A nation that does not learn from its historical lessons and experiences is not a serious and earnest nation. Over the past thirty years, we know where we have come from, but where we are going in the future still seems to be debated, confused, and uncertain.
Sixty years ago, when I was a high school student in the Kuomintang-controlled area [Zichen’s note: during the Republic of China era, before the establishment of the People’s Republic of China by the CPC], participating in student movements, I was shouting slogans of democracy and freedom. I think, building a rule-of-law nation and promoting the spirit of the rule of law, democracy, and freedom are still the goals we pursue today.
For me, sixty years ago, the task was to strive for democracy and freedom, and this task still exists today. Of course, I believe that China's democratic process can only be gradual and carried out within the current system.
Our generation has experienced personal hardships and national tribulations, so we hope that China will not fall into chaos, and that China will be prosperous, politically democratic, and socially fair. If there is a major upheaval in the system now, then China will regress significantly in history.
Why Do Call to Arms?
On January 23, 2010, the editorial department of《律师文摘》'Lawyer Digest' combined their annual meeting with the first release of my 80th birthday congratulatory collection. At this annual meeting, I also made a speech, expressing my gratitude on one hand and my thoughts on the other. I feel that the current situation of the rule of law in our country is rather severe.
Under these circumstances, people might have higher expectations of me, but I feel that I still have many shortcomings. Strictly speaking, in the 30 years of reform, I did something within my duty, which is to advocate for private rights. I chose civil law and private rights because private rights protection in China was too weak, or private rights are always at a disadvantage in the face of state power.
These private rights may include the rights of private enterprises, the rights of private property, and more broadly, private rights. My two recent books both use the word 呐喊 'Call to Arms'; the first book is 《我所能做的是呐喊》 'What I Can Do Is Call to Arms',
and the other is 《私权的呐喊》'The Call to Arms for Private Rights'.
Why did I choose the word 'Call to Arms' in the last two years? On one hand, of course, it's inspired by Lu Xun [Zichen’s note: 呐喊 Call to Arms is a collection of revolutionary Chinese writer Lu Xun’s most famous and most important short stories.] but not just because of this. An important reason for choosing 'Call To Arms' is that the situation is becoming increasingly urgent, meaning the external environment is getting worse. Under these circumstances, it is necessary to 'Call to Arms', no matter what words you use, 'Call to Arms' is a voice of appeal in a rather adverse situation. I want to use the word 'Call to Arms' to also indicate another issue, which is the need to 敢于斗争 dare to struggle and 善于斗争 be adept at struggling. I think in the current situation of China's building of rule of law, these two things need to be well combined. This is a very difficult problem. Either you are 善于斗争 adept at struggling but dare not to express, or you dare to express, but sometimes lose moderation.
Because China's building of the rule of law is closely linked to the political system, without political system reform, there will be no significant achievement in the reform of the rule of law, judiciary, or anything else. Therefore, under these circumstances, it's easy to 'step on the line' or cross the forbidden zone. How to combine these two things well in China, to dare to struggle and be adept at struggling, is a daunting task.
However, I remain optimistic about the rule of law in China. I often used to say that China's [path to] rule of law is two steps forward, one step back, and I still hold this view today. From the perspective of private rights protection, China's private rights protection has greatly improved compared to the past, not to mention the first 30 years, and even more so than the 10 years of the Cultural Revolution. In the 30 years of reform and opening up, after the impact of the《物权法》'Property Law', people's awareness of private rights protection has greatly increased. Whether it's the Chengdu self-immolation case or other cases, it has shown people's awakening to private rights, plus the role of our lawyers, this civilian awakening consciousness is very strong.
Twenty years ago, when the 行政诉讼法 'Administrative Litigation Law' was passed, it was hard to imagine using a law to protect private rights. Today, no matter how, people understand this principle through litigation or other means, to defend their due rights, and everyone knows that their rights cannot be violated. However, we still emphasize the protection of private rights, but we must also be careful not to abuse private rights. If we grasp this point, that's enough.