The Change and Constancy of “Equality Issue” in Human Rights Theory Research During the 40 Years of Reform and Opening-up
January 10,2019   By:CSHRS
The Change and Constancy of “Equality Issue” in Human Rights Theory Research During the 40 Years of Reform and Opening-up
FU Zitang* & TANG Bowei**
Abstract: In 1978, academia broke through the theoretical for-bidden zone with the slogan of “equality before the law” and initiated a great discussion on some important legal issues including legal equality. During the past 40 years since the reform and opening-up, the relevant research has changed from the ideological contention deeply influenced by class discourse to the abstract theoretical re-search where class discourse has been fading away, and then turn to the technical and concrete practical research. This “change” is clear-ly visible and, to a certain extent, reveals the track of the development of human rights theory. However, there is “constancy” in “change”. “Constancy” not only lies in the study of legislative equality through-out the past 40 years, but also embodies the inherent logic of theoret-ical research in response to social development and changes in the times.
Keywords: human rights theory  equality  reform and open-ing-up
The basic meaning of legal equality is that “people are in equal status in all aspects including politics, economy and culture, and are treated equally”.1 China’s reform and opening-up was a historical turning point in the legal construction of the People’s Republic of China. Over the past 40 years, with the progress of a socialist market economy, the improvement of the legal system, the transition from “legal institution” to the “rule of law”, as well as the wide acceptance of human rights, the theoretical community has constantly deepened research on the issue of legal equality. Besides, in the process of wonderfully tit-for-tat or mild theoretical exchanges, there exist both “constancy” and “change”.
I.  “The Issue of Equality before the Law” on the Great Discussion of Legal Issues at the Beginning of the Reform and Opening-up
On December 6, 1978, prior to the Third Plenary Session of the 11th CPC Cen-tral Committee, People’s Daily published an article by Li Buyun called Adhering to Equality of Citizens before Law, in which he argued that the so-called equality before the law of the bourgeoisie is hypocritical, and that socialist law doesn’t admit the restrictions on hierarchical privileges and property. Therefore, to truly make citizens equal before the law and recognize equality requires “the complete denial of feudal despotism and the concept of hierarchical privilege”.2 From December 18-22 of the same year, the Third Plenary Session of the 11th CPC Central Committee was held in which it was pointed out that, “we must guarantee that the people are equal before our own law, and no one should enjoy any privilege beyond the law.” This marked the be-ginning of the great discussion on legal issues. Legal equality is the introduction to the great discussion, and it is an important issue of the discussion as well.
A.  Dispute between “equality of citizens” and “equality of the people”
Ensuring equality before the law is a basic consensus. Based on different under-standings of the class nature of the law, scholars hold various opinions on the “equality of citizens” and “equality of the people” within the scope of equal subjects. Some scholars believe that equality is only limited to a certain class, so we can only advo-cate “everyone” is equal within that “class”, and that legal equality beyond that class is fundamentally in conflict with the class nature of the law.3 Li Buyun’s article reso-nated widely at that time. Most scholars support his view on the “equality of citizens” and believe that national laws should be applied uniformly and equally to all citizens, and that any citizen, regardless of nationality, gender, occupation, origin, or religious belief, regardless of how high his or her status is or how much contribution he or she makes, should strictly abide by the nation’s Constitution and laws.4
The dispute between “equality of citizens” and “equality of the people” is a con-troversy over the equality of subjects under the law, and it is the in-depth controversy in academic research between “people” which is a political discourse with a strong sense of class and “citizens” which is a law discourse supported by rights and obliga-tions that matters most. Although the Third Plenary Session of the 11th CPC Central Committee adopted the phrase “people are equal before our own law”, the academic viewpoint is more inclined to “equality of citizens”. At the closing ceremony of the Second Session of the Fifth National People’s Congress held in June 1979, Chairman Ye Jianying proposed that “all citizens, whether they are within the party or outside the Party, whether they are superiors or subordinates, no matter what social status they are and what social components they belong to, are equal before the law”, and Peng Zhen, director of the Legal Committee, also emphasized the term “equal before the law”. The Constitution, amended in 1982, re-establishes legal equality as the constitu-tional principle, stipulating that “citizens of the People’s Republic of China are equal before the law”, and this principle is also adopted by some organic laws of state or-gans such as the Organic Law of the People’s Court and Organic Law of the People’s Procuratorates as well as some basic laws such as the Criminal Law, Civil Law and Administrative Law. The theoretical viewpoint of the “equality of citizens” has un-doubtedly promoted the changes in the description of legal equality by the Party and the nation. The mainstreaming of this viewpoint also symbolizes the beginning of the reconstruction of legal discourse in law research.
B.  The dispute on “whether legislation should be equal”
Whether legislation should be equal is another issue that has been widely debat-ed. The views of Pan Nianzhi and Qi Naikuan supporting legislative equality are the most representative. They believe that the judicature is based on legislation, and that judicial equality cannot be achieved without the confirmation of equal rights of citi-zens in legislation.5 Li Guangcan and other scholars have criticized the articles of Pan and Qi one by one in detail, and demonstrate the deviation of legislative equality from the class nature of law.6 Li Buyun also believed that equality focuses on judicature, and that legislation must distinguish between people and class enemies.7 After the discussion, the opinion that legal equality does not include legislative equality has be-come a general statement, which is adopted by the main legal textbooks of that time.8
The discussion of “whether legislation should be equal” is never just a matter of whether the subjects of participation in legislation and groups of legal representatives are wide enough. Instead, it is a fundamental issue of how to correctly understand and adhere to the essence of socialist law. Under the discourse of the law reflecting the will of the ruling class, legislative equality that goes beyond the class doesn’t exist in socialist law. Shortly after the end of the cultural revolution (1966-76), China was riddled with grief, all the undertakings waited to be established again, and many major theoretical issues were not fully defined. Against such a historical background, some scholars proposed the social nature of law and questioned the law reflecting the will of the ruling class,9 but owing to the economic foundation and social environment of that era, that argument was not widely accepted, and it cannot provide sufficient theory for breaking through or diluting the legislative equality of class divisions.
II.  The Enrichment of the Concept of Socialist Market Economy As Well As the Theory of Legal Equality
In 1982, the 12th National Congress of the Communist Party of China put forward “correctly implementing the principle of taking the planned economy as the principal thing and the market economy as a complement”. In 1984, the Third Plenary Session of the 12th CPC Central Committee proposed the implementation of a “planned com-modity economy”. In 1992, Deng Xiaoping inspected South China and delivered a speech, pointing out that “the planned economy and market economy are all economic means, and they can’t serve as a way to tell the essential difference between socialism and capitalism.” In October of the same year, the 14th National Congress of the Com-munist Party of China officially proposed establishing and improving the socialist market economic system. In March, 1993, the phrase “the state implements a social-ist market economy” was written into the Constitution. The consensus of the whole society on emancipating the mind and developing socialist productive forces ignited another ideological emancipation movement after the great discussion of “practice is the only criterion for testing truth.” The establishment and development of the mar-ket economic system provides sufficient momentum and room for the study of legal equality.
A.  Market economy calls for legislative equality
From the perspective of developing the market economy, the opinions of Jiang Ping and Guo Daohui are the most representative ones in the debate on legislative equality. Jiang Ping believed that formulating laws respectively according to the sta-tus of different subjects does not conform to the principle of equal competition in the market. Therefore, “equality before the law” refers not only to law enforcement, but also to legislation.10 Guo Daohui argued that the hostile class has been eliminated as a class, and that the people’s democratic dictatorship is no longer a dictatorship of the reactionary class, but a dictatorship of counter-revolutionary crimes and other hostile crimes, which belongs to sanctions after violation of the law rather than presupposed unequal rights in legislation. Besides, he stresses that the equality of the subjects of market economy in legislation reflects the progress of “identity to contract”.11 At this stage, although it was a fact that scholars’ opinions centering on legislative equality were widely accepted, they did not respond positively to the issue of the relationship between legislative equality and the class nature of the law, and “subject equality” and “equal rights” seem to be the full connotation of legislative equality. This kind of utili-tarian interpretation from the perspective of market economy that simply by means of the demands for the development of a market economy proves the principle of equali-ty of legislation in all fields of society seemed unable to be scrutinized deeply.
B.  Study on the relationship between equality and efficiency
In 1990s, scholars correctly realized the indivisible unified relationship between equality and efficiency, but they had clear value biases. Zhang Wenxian considered that based on the development law of the market economy and the requirements of economic system reform, efficiency is at the forefront of the value of law, but putting efficiency first does not exclude equality. Only when the subject is equal and is able to compete fairly under the condition of equality can it stimulate and guarantee con-tinuous efficiency.12 Some scholars believe that equality and efficiency are in the same rank. Efficiency is the substantive and fundamental purpose value, and equality is the means value of procedural safeguards. Efficiency is the result of equality, and equality is the premise and foundation of efficiency.13
The research on the relationship between equality and efficiency in this stage is deeply influenced by the market economy. What’s more, the market economy system is just in the initial stage of establishment and development in this period, and people are eager to make the economic aggregate bigger. In addition, academia also shows a strong desire to provide necessary legal theories for the rapid development of market economy through theoretical research, while there is no intuitive and comprehensive understanding of social problems that may arise during a one -sided pursuit of the development efficiency of market economy. Thus this makes the theoretical views de-rived from relevant research may have certain limitations and one-sidedness.
III.  The Equality Runs Through the Rule of Law and Social Gover-nance
In 1997, “Rule by Law” was defined as the basic strategy of governing the coun-try by the Party’s 15th National Congress, and was written into the Constitution in 1999. In 2012, the 18th National Congress of the Communist Party of China proposed to “comprehensively advance the Rule of Law”. During advocating and implementing the Rule of Law, the CPC Central Committee had a new elaboration on legal equality. In 2014, the Fourth Plenary Session of the 18th Central Committee of the CPC pointed out that “Equality is the basic attribute of socialist law”, and the 19th National Con-gress of the CPC pointed out that “We should establish the concept of Rule of Law that the Constitution and the law are supreme and everyone is equal before the law.” Therefore, equality is not only abstract, it serves as the legal principle for opposing privilege or the negative effects of the class struggle, and is a basic attribute of social-ist laws and an important content of the socialist concept of rule of law. Meanwhile, “It becomes China’s political, economic, and social and cultural mainstream discourse, as well as a reasonable benchmark measuring the political legality, economic health and culture progress.”14 And it also covers many aspects including urban and rural ar-eas, gender, race, education, employment, social security and social governance. The change of the awareness of equality is closely related to the social environment of the continuous development of the economic society since reform and opening-up. The change and the development drive scholars to study some important issues of legal equality.
A.  The study of legal equality tends to be technical and specific
1.   Urban-rural Inequality. In the course of developing the market economy, there has been increasing inequality, among which the urban-rural inequality is the most ap-parent. This is first reflected in economic distribution. For example, some scholars be-lieve that the institutional causes leading to rural poverty are the binary legal systems such as household registration, land and resources distribution, urban and rural taxes and fees, and redistribution of national income, as well as differential legal treatment in that environment.15, the development of villagers’ rights should be focused on free-dom of migration, equal employment and equal-sharing of the benefits of urbaniza-tion.16 In terms of political rights, the Electoral Law, the unmodified edition before the year of 2010, stipulates “eight to one” or “four to one” value ratio of urban and rural elections. Some scholars think that that stipulation is the institutional barrier which limits the new rural construction, and that to promote urban-rural equality, it is nec-essary to cancel the laws of inequality that are bad for the political rights of villagers, and so restore their constitutional status of equality.17
2.   The realization of equal rights driven by anti-discrimination litigation and the development of relevant theoretical research. One kind of litigation is employment non-discrimination litigation. For example, Jiang Tao took the Chengdu branch of the People’s Bank of China to court for setting height conditions for interviewees, and Zhang Xianzhu initiated a lawsuit against the Wuhu Personnel Bureau for refusing civil servants carrying Hepatitis B Virus. Li Weiwei believes that people should not be treated unfairly due to features that have nothing to do with their capability to do a job.18 Zhou Wei believes that equality and prohibition of discrimination are the same in essence: Equality does not mean opposing differences, but it opposes differential treatment without reasonable basis.19 Another kind of litigation is the rights litigation of special group, such as Ding Shengqi’s lawsuit against Chongqing Planning Bureau and a bank for infringement of the right of barrier-free facilities for the disabled. In terms of the rights of vulnerable groups, Qi Yanping believes that because women, children, the disabled and other vulnerable groups are in structural social discrimi-nation, they need special legal protection to realize the comprehensive protection of human rights through substantive equality.20
3.  New problems of legal equality triggered by technological progress. The sym-bolization of identity in the internet realizes the equality of opportunity and the starting point. However, it intensifies the imbalance brought by the difference in knowledge level, technical ability and age, thus resulting in the fact that disadvantaged groups with “knowledge poverty” and “information poverty” have appeared.21 Artificial in-telligence is being used in judicial practice. Some scholars believe that the traditional judicial activities only depend on rules of conduct, ruling out other previous factors of identity, while based on the collection of information and algorithms, Artificial intel-ligence will form probabilistic individual rules. It means that with data accumulation and algorithm learning, the effect of a sort of behavior will not to end with its closure. With the accumulation of data, the tendency of the strong to get stronger and the weak is to get weaker will appear in judicial practice, and legal equality will face the danger of being deconstructed.22
B.  The continuation of the study of legislative equality
Because the concept of legislative equality has penetrated into the development of the market economy and social practice since the 1990s, the concept of legislative equality has further become the mainstream since the 21st century. For example, Jiang Bixin believes that equality before the law only includes equality in law enforcement and judicial equality, while substantive equality also contains equality of legislation and reasonable differential treatment.23 Fu Zitang believes that the law should provide equal opportunities and the same rules for social members, and reduce the inequality caused by nature and society to a minimum.24 Based on the construction of a har-monious society, some scholars demonstrate the legislative equality and believe that equality is the foundation of a harmonious socialist society. And we should eliminate legal discrimination and prohibit discrimination through legislation.25 Although the influence of the class nature of law in the study of legislative equality is decreasing, legislative equality still involves the class nature of law and the relationship between them is always an unavoidable problem in the study of legislative equality. Some scholars have responded positively to this problem. For example, Li Buyun believes that the two are not in conflict, but legislative equality should be different in the polit-ical and economic fields. In politics, it is a fact that people cannot be equal, but they are equal in economics.26 Zhou Wei holds that only the people can participate in the legislative process, so legislative equality does not conflict with the class nature of the law.27 The Fourth Plenary Session of the 18th Central Committee of the CPC pointed out that “Equality is the basic attribute of the socialist laws”, which is undoubtedly a new interpretation of legal equality. We can say that equality is not only a legal prin-ciple, legal rights, but is the basic attribute of law. Therefore, it certainly runs through legislation, law enforcement, the judicature and observance of the law, and thus there is no conflict between legislative equality and the class nature of law.
IV.  Conclusion
Sorting out the evolution of the “equality issue” in human rights theory research during the 40 years of reform and opening-up is not only to recall the past and arouse historical memories, but also to grasp the law and provide positive guidance. In the late 1970s and early 1980s, the academia launched a heated discussion where “equal-ity of citizens” was acknowledged by theoretical viewpoints and legal practice. In the 1990s, driven by the market economy, “legislative equality” was widely accepted and the theory of “legal equality” was developed. Since the beginning of the 21st century, relevant research has focused on social inequality, gradually turning from metaphys-ical theories into the physical, technical and concrete reality. Such a “change” seems to be the basic trajectory of the research of “legal equality”. But in the process of the “change”, the issue of “legislative equality” has been an important part throughout the 40 years. After entering the 21st century, academia has paid more attention to the real inequality, meanwhile “legislative equality” has been widely discussed, in which class topics such as “class”, “people” and the “enemy” have been mentioned throughout the demonstration of “legislative equality”. In addition to the “constancy” of the research of “legislative equality”, scholars in different times focus on different issues of “legal equality”. From the late 1970s to the early 1980s, “equality of citizens” and “equality of the people” were heatedly discussed; in the 1990s, the relationship between equali-ty and efficiency aroused wide attention; in the 21st century, the “equality” theory and social practice were combined. We can see that a topic has changed with the times and political discourse. However, it also has reflected the “constancy” of human rights theory research, which coincides with the times. What’s more, it has shown a constant interaction between legal theories and politics, between the legal discourse and politi-cal discourse.
(Translated by LI Man)
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