After assuming supreme power in the People's Republic of China in late 1978, Deng Xiaoping was most insistent that law was essential to socialist modernization and that Maoist legal nihilism had to be combated. He inaugurated a massive program to reform and restructure the legal system. Accordingly, the Party and State Constitutions were revised, law was codified, judicial organs were reorganized and the academic discipline of legal studies was revived. The aim was to replace what was referred to as the 'rule of persons' by the rule of law. By the time of his death in early 1997, much had been achieved. Though defects in the system remain and have been highlighted by many scholars, it is fair to say that China's socialist legal system has gone far beyond the old instrumental notion of safeguarding the rule of a Marxist Party. In the context of promoting economic modernization, law has increasingly been seen as the principal means for resolving conflict and maintaining social order. While many scholars have noted Deng's limited success in instituting the rule of law, one must concede that China is no longer faced with the legal nihilism of the Maoist era.

But what sort of law are we talking about? This article argues that legal reform in China has to be seen within the context of a specific tradition of socialist law, developed originally in the Soviet Union. Of course, in many ways Deng moved away from a "Soviet model". He insisted that socialism (and almost everything else) had to be built with "Chinese characteristics". That did not mean that the Soviet-inspired socialist legal framework was to be abandoned. Its "socialist" content, however, had to be adapted to the thesis that China was in "the preliminary stage of socialism". That "preliminary stage" was to allow for a substantial commodity economy and an open-door economic policy. The market economy, justified by that formula, demanded forms of legal regulation unknown in the old planned and closed economy in which public ownership dominated. The Chinese approach has been very inventive.

Before we consider that inventive approach, let us consider the broad contours of the tradition of "socialist law". The "socialist theory of law" owes its origin to Vyshinsky, following Stalin's rejection of the notion that law and socialism were incompatible, which had been articulated in the "commodity exchange school" represented by Pashukanis. The socialist theory was strictly formulated to legitimate law in the socialist regime by bending elements of Marxist critical theory to serve an ideological purpose. It affirmed the positive value of law in "socialist transition" with the focus on differentiating socialist law from "bourgeois" law. Socialist law was seen not as a further development of bourgeois law, but as a new type of law which had grown out of the socialist revolution of the proletariat.

The socialist theory was formulated on the basis of Stalin's instrumental approach. Law in socialist society was held to be the instrument of the state for the elimination of all capitalist residues, for the defense and the development of the socialist economy, and ultimately for the realization of communism. Vyshinsky's theory held that socialist legal theory should specify the tasks and social functions of socialist law, its nature, its content and form as well as the condition for its withering away. As for a general theory, it should cover the origins, development and the future of law in human societies. Within that model, Soviet jurists wrestled with the nature of law and its origins, the proper relationship between law and the economic base and the methodology of Marxist jurisprudence.

The socialist theory was Marxist in the sense that it stressed the indissoluble link between the state and law, both historically and functionally. Law was conditioned by the state and had to be defined by reference to the state. It took on a political complexion; and legal theorists always had to refer to political theory, or more particularly to ideology. Socialist theory, therefore, was positivistic, seeing law as being laid down by the state and geared to serve the interests of the state until communism saw the state transcended. Its uniqueness, as summed up by Tay and Kamenka, lay in the "extra-legal presupposition about the nature and the function of law in the economic context, and in the rejection of law as independent of the state in practice".

Has the wide adoption of market-oriented legislation based on Western models, particularly for the purpose of developing a "socialist market economy" under Jiang Zemin's leadership, made the socialist perspective obsolete? It seems both rash and simplistic to conclude that such a move has fundamentally changed the philosophical basis of the Chinese legal system. Western observers who have stopped paying attention to the continuing influence of the "socialist theory of law", simply because the Soviet Union has collapsed, may not be seeing the entire picture of legal reform in China. When considering China, one cannot overstate the ideological significance of the non-state sector. Nor should one overlook the fact that a definition of "socialist market economy" is still bent in the direction of the old statist teleology. As Gelatt notes, foreign legal concepts and traditions have been adapted within a broader framework of Marxian rule and have been accommodated to the basic principles of socialism. "The PRC leadership has never indicated an intention to use law in a way that would alter China's political or ideological foundations or 'basis"'. One should note, moreover, that while some law (criminal and administrative) enjoys a little autonomy from politics, economic law is much less autonomous and is not regarded as "mainstream". That will surely continue to be the case so long as the importance of public ownership retains its ideological dominance.

The tradition of "socialist law", therefore, remains important, and we must be careful not to negate Chinese socialist law in the name of Western legal theory, as warned by Lubman in reviewing the study of Chinese law in the United States: "[b]oth extreme cultural relativism and insistence on intellectual categories derived from Western legal systems have threatened to skew study (of Chinese legal system), with the latter trend more evident in recent years".

This article discusses the evolution of socialist legal theory in China and in particular the changes resulting from Deng Xiaoping's reforms. While the old framework of socialist law remains, law has developed beyond crude Soviet instrumentalism. The subtlety of law's regulative function is now appreciated, and the way is open for seeing the relationship between the rule of law and democracy. This article will contrast Deng's approach to law with that of Mao Zedong. It will consider whether Deng laid down the basis for a uniquely Chinese legal theory in the context of Marxist jurisprudence. Finally, it will explore the future of Chinese socialist law under the leadership of Jiang Zemin.