Socialist Legality: The Developing Law of China and a Comparison with the Transitional Concept of Revolutionary Legality in Pakistan
In the present international order the countries, which do not correspond to a democratic norm, are deemed as totalitarian. It is an evaluation based upon the liberal denominator that sets pluralism as the benchmark of a legal order. The social systems that rest upon a socialist mandate, such as China reflect an ideal based on an egalitarian role model that redresses the structural differences in society. Its origins are contained in the theory developed by Marxist jurisprudence that has been enhanced by the legal reforms to facilitate an economy based on the market mechanism. In this changing environment the concept of public liberty becomes a valid question. Peerenboom who discerns an indigenous rule of law has addressed the presence of this in the Chinese framework. The natural right theorists reject this interpretation but sociological theory points to a critique of linguistic barriers. The Westminster Constitution adopted by the countries that practice Parliamentary democracy on the UK model are the very anti thesis of this concept of popular sovereignty. In Pakistan where there has been frequent internal regime changes arising from coup de tats Kelsen’s theory of efficacy has been upheld that allows the martial law governments to abrogate the constitution. This form of rule is based on state necessity and can be traced to the prerogative powers of the British Crown that have been imbibed by the Commonwealth governments to suspend the rule of law. In this regional study of the comparative law a distinction is made between the theory of permanent revolution in China, and the temporary expedient that is employed in Pakistan to suspend civil society. The Chinese supra structure has proven successful in maintaining the unity of the state and in developing an infrastructure that enacts a rule of law within its cultural framework. The imperfect adoption of the Westminster Parliament has allowed the emasculation of the legislature, suspension of judicial review and restriction of fundamental rights when the military authority changes the status quo in Pakistan.