The Rule of Law in Modern China
“The People’s Republic of China governs the country according to law and makes it a socialist country under rule of law.” (Art. 5, 1999 Const.)
The concept of the “rule of law” is universally known, yet asymmetrically applied, and this is no different in modern China. The notion of the rule of law in China today is much different than that studied by the legal philosophers of ancient Chinese history. Today, the phrase “rule of law” is intended to describe a key component of the social and political order. It is characterized as legal domination. On the one hand, “rule by law” is an instrument of the government, in which the government is above the law. On the other, “rule of law” asserts that no one is above the law. Under rule of law, the authority of law does not depend so much on law’s instrumental capabilities, but on its degree of autonomy; that is, the degree to which law is distinct and separate from other structures such as politics and religion.
Because the PRC has committed itself to a socialist rule of law state rather than a liberal democratic version, holding modern China to the standards of the latter will lead to the conclusion that it willfully rejects the concept entirely. This conclusion is lacking an analysis of the culture and history of China. Historically, China has lacked a culture in which the law is held in high esteem. The acceptance of relying on connections to circumvent the law, an emphasis on substantive rather than procedural justice, the view that morality trumps law, and the tendency to afford wide discretion to decision-makers all have deep cultural roots in China. Moreover, the very concept of the doctrine of legality had never occupied a central role in traditional imperial China. The ideology of Marxism-Leninism, much less Maoism, is ambivalent to the positive contributions of law, particularly outside the realm of the struggle against counter-revolutionaries, class enemies, and criminals. Furthermore, legal tradition within PRC history may be characterized as weak at best. The concept and idea of “socialist law” had been outright rejected for 20 years before its revival in 1979. Further, the techniques of law drafting and legal engineering led to the prevalence of local protectionism and asymmetrical implementation. Lastly, until the 2000s, the availability and prevalence of legal education was very limited, and there still exists a dearth of qualified legal professionals today.
Therefore, due to the nature of the PRC’s unique legal history, the implementation of the rule of law in China largely depends on the voluntary compliance of government and CCP leaders. There is growing evidence of this taking place. The increased separation between party and government has resulted in an expanding domain in which many of the daily functions of government are carried out by state entities without interference from the party. CCP leaders have increasingly backed reforms to decrease party intrusion, taken steps to improve the quality of judges, and created specialized courts to deal with certain problematic areas such as intellectual property disputes. Moreover, CCP leaders and government officials alike are increasingly held accountable to the rule of law. Xi Jinping’s recent high-profile attack on corruption is but one example. This all may taken as evidence of China’s recognition that a stronger and more competent judiciary able to resolve disputes equitably is important in attracting foreign investors and sustaining economic growth.
However, it remains to be seen whether the CCP will continue to support this development if it seriously infringes on its authority. It is still very clear that the party will not tolerate threats to its existence and will shove law aside if necessary. The dilemma facing China now is how to develop a legal system strong enough to resist local governments and decide cases impartially, and yet not so strong that it will undermine the objectives upon which the state was founded. However, this dilemma is not so much a product of the current administration, but may be attributed to the truism that a legal system can only change as quickly as a people’s perspective regarding the role law should play in society will allow it.
In light of these considerations, China’s legal system has made remarkable progress in the last quarter century, and the tendency to compare it to those in more developed liberal democratic countries should be withstood. Nonetheless, development of China’s legal system has lagged behind its fast-growing economy, and China will not fully realize a modern rule of law state until state entities and CCP leaders alike feel constrained by the law and adapt their behavior accordingly. While evidence of this occurring is growing, only time will tell.
JD/MBA Candidate 2016