State Legalism and the Public/Private Divide in Chinese Legal Development

Abstract

From total rejection to reluctant acceptance and eventually to full acceptance with new justifications, the Chinese attitude towards the public/private divide has undergone several stages in theory and practice. During the early stages of the People’s Republic of China (PRC), Chinese scholars of law and political science firmly rejected the divide between the public and the private as being a distinction made in bourgeois law that should be replaced by a new socialist legal system, which would acknowledge no such difference. Since the start of reforms in the late 1970s, the newly ascendant private sector of the economy called for legal recognition of its status, but due to ideological constraints inherited from the pre-reform era, it was not easy to give meaning to the existence of the private sector. Debates were waged among Chinese scholars over the distinction between the public and the private for the purpose of recognizing private ownership. Eventually, the distinction was recognized. The Chinese case is obviously a very good example to show that such a distinction does play a role in shaping or improving a legal system. The emergence of “social law,” however, has blurred the demarcation between the two, calling for new theorization. The “publicization of private law” and “privatization of public law” have further strengthened the ambiguity with respect to the public/private divide.