The political origins of death penalty exceptionalism
| Date | 01 April 2008 |
| DOI | 10.1177/1462474507087195 |
| Published date | 01 April 2008 |
| Author | Zhang Ning |
| Subject Matter | Articles |
The political origins of death
penalty exceptionalism
Mao Zedong and the practice of capital
punishment in contemporary China
ZHANG NING
University of Geneva, Switzerland
Abstract
This article focuses on the role played by Mao Zedong in the making of the Chinese
communist legal system in general and in the Chinese practice of the death penalty
under Mao in particular. It attempts to study this link through an analysis of an event
which represented a landmark, namely the campaign of the regression against counter-
revolutionaries launched in 1950–2, and through an examination of three specific cases,
which enable us to observe the concrete characteristics of these practices, whose effects
continue to be felt in today’s China.
Key Words
capital punishment • China
How can we describe the legal system in China under Mao Zedong (1893–1976)?
The period of Mao has been described by some as ‘lawless’ (Ladany, 1992: 52–78).
In fact, however, this period saw the promulgation of three constitutions in 1949, 1954
and 1975, respectively (Xu Chongde, 2003: 20–155), and certain specific laws; as well
as the application of many regulations and decrees that were traditionally regarded as
having lower judicial status. There is clear evidence that, as in the modern West, Imperial
China was characterized by a legal hierarchy of three levels: constitutions (or texts that
have constitutional value), laws and decrees or regulatory texts (Agamben, 2003:
26–41).1But this notion of absence of law, sometimes associated with an ‘anarchist’
temperament attributed to Mao, does not allow for grasping the nature of the actual
‘legal practices’ under Mao. These practices were constituted by complex and relatively
effective institutions consisting of courts, public prosecutors, various detention
structures and departments of public safety. This system is often represented as a form
of totalitarianism where law was reduced to a simple instrument of control and re-
pression, a point of view which is not mistaken but which does not illustrate the specific
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PUNISHMENT
& SOCIETY
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DOI: 10.1177/1462474507087195
characteristics of Maoism compared, for example, to Stalinism. The Stalinist regime of
the Soviet Union maintained penal codes (a new criminal law was published in 1922,
five years after the Revolution, and a civil code in 1923) and a certain number of legal
proceedings (Ladany, 1992: 56): for instance; as mentioned by Solzhenitsyn (1974), all
political victims under this regime were judged according to article 58 of the penal code
published in 1926. But the Communist regime in China governed without any code
during its first three decades. And, as opposed to the Stalinist practices of terror that
were often secret or relatively discreet, Mao did not hesitate to expose, publicly and
systematically, practices constituting acts of state violence.
Moreover, how can the specific nature of capital punishment be viewed in relation
to judiciary proceedings under the Maoist regime? Is it meaningful to single out the
death penalty and distinguish it from other types of executions and massacres whose
occurrence under this regime were, according to many estimations,2quantitatively
much more important? Indeed, it seems absurd to suggest that someone like Mao would
have needed to distinguish legal from illegal killings. I believe, however, that it is necess-
ary and important to examine the capital punishment system of this period, because,
above and beyond the personality of the Great Helmsman, this system has a persistent
and profound influence on contemporary legal practices in China.
It is useful to distinguish four periods and four types of executions or killings in
which Mao played a leading role: (1) illegal killings on the model of traditional banditry
in the mid-1920s during his participation in peasant uprisings of the Hunan province;
(2) the Stalinist-type ‘purge’ within the Communist Party and in the Red Zone, in
particular during the struggle against the ‘Anti-Bolsheviks’ in Jiangxi (1930–1)
(Domenach, 1992: 47; Gao Hua, 2000) and the rectification movement in Yanan
(1942) (Gao Hua, 2000); (3) military sentences pronounced during the war as demon-
strated by the elimination of traitors immediately after the Sino–Japanese War and
during the agrarian reforms launched in the 1940s by the Chinese Communists in the
zones recently conquered; (4) the Maoist institution of capital punishment in peace
time, starting with the repression of counter-revolutionaries in 1950.
This article focuses on the last period and thus the last type of execution, but without
neglecting possible effects of previous practices. It is necessary to emphasize, meanwhile,
that due to the difficulty of accessing archives, a systematic study of the organization
of the capital punishment system remains to be done. So this present study does not
purport to analyze as such the entire system relative to capital punishment under Mao.
It confines its examination to three aspects: first, Mao’s conceptions of capital punish-
ment as seen in his writings, speeches and published directives; then (based on avail-
able documents) the probable influences of his conceptions on the process of
constructing of Communist China’s legal system and, in particular, on applications of
capital punishment; and, last, the analysis of three specific cases through which to
observe the concrete characteristics of these practices, whose tangible effects persist in
today’s China.
MAO’S CONCEPTIONS OF CAPITAL PUNISHMENT
Mao was a fervent partisan of capital punishment, particularly because he believed that
it played a dissuasive function when carried out on a large scale. His ideas about this
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