The author may be reached at firstname.lastname@example.org. I want to thank the organizers of the conference, "China: Law, Finance, Security," held at the University of Iowa College of Law on February 10, 2006, and the participants for their insightful and engaging comments. Special thanks to my research assistants on this project: Andres Almendarez (Penn State '07) and John Haverty (Penn State '08) for their usual exemplary work.
Academic, political, and civil society elites have developed a distinct pattern of argumentation and analysis when discussing the rule of law in China. The discussion usually proceeds along the following lines.1 Page 30
China has sought to conform its institutions to the norms developed in the West. Thus, China has created state institutions as those organs of government where the will of the people as a whole can be represented.2 It has separated from these representative organs of state power the institutions of the Chinese Communist Party (CCP).3 That separation confirms the Western intuition that the CCP should be no more than a political faction (like the American Republican Party or the U.K. Labour Party). At best, the CCP can represent the will, however powerful, of a single political party, albeit one with current constitutional status. As such, the CCP must give way to a superior institution, the state, through which the will of all of the political community can be most equitably expressed.
To this end, the typical analysis posits, as a positive development, the recent efforts by the Chinese to separate politics from institution. The Chinese Constitution of 19824 has, as a formal matter, embraced the idea of the rule of law in its procedural aspects, that is, by constructing Page 31 an autonomous legal order.5 The Preamble declares that the Constitution "is the fundamental law of the state and has supreme legal authority."6Article 5, as amended in 1999, emphasizes that "[t]he People's Republic of China practices ruling the country in accordance with the law and building a socialist country of law."7 The Chinese Constitution thus necessarily focuses, as it must, almost exclusively on institutions.
Yet the standard analysis finds these changes inadequate. It finds the rush toward Western forms of governance an empty gesture with little real effect on governance when judged by a Western governance ideal. The Chinese Constitution has avoided any attempt to embrace rule of law in the substantive aspect, even as a formal matter within the black letter of the Constitution itself. To the extent that references are made to ideology-in the form of Marxist/Leninist, Mao Zedong, and Deng Xiao Ping thought, and after 2004, to the "important theory of Three Represents"8-those have little merit. These references are reminiscent of Western analysis of the "bad old days" of the Cultural Revolution9 and suggest little more than mere ideology. None can implicate substantial rule-of-law issues in the substantive or procedural aspects. Moreover, even the formal compliance with process rule-of-law aspects hides the reality of deficiencies in the implementation of these safeguards.
The focus of this standard model of Chinese rule of law is the political state, including its formal institutions. Chinese efforts, like those of other nations, are usually measured against the State in its idealized form, Page 32 which is usually conceived as the ultimate legal personality, formally manifested through its constitution, lawmaking authority, and an institutionalized government.10 The formal institutional elements of the state apparatus are also evaluated in terms of core Western liberal notions.11 The foundation of this system posits that an institutionalized element of a particular sort comprises the supreme elements of the hierarchy of political authority in every political community.12 Since the state is the supreme autonomous entity within a political territory, it is assumed to hold all formal political authority derived from the people.
This authority is expressed through its governmental institutions, throughout which its supreme political power is distributed.13Constitutionalism, in this view, tends to focus on substance rather than Page 33 form; the existence of a document labeled "constitution" does not necessarily make for a legitimate constitution, conceived, thus, as a bundle of legitimating norms.14
All other entities-political, social, economic, or religious-are viewed under this analysis as having a derivative, semi-autonomous, and partial character at best. They are either creatures of the state, like corporations15 (including religious corporations),16 or illegitimate sources of sovereign political power within a state because they are not the legitimate expression of direct sovereign political power by all of the people, a power manifested only through the apparatus of the state in which the people authoritatively constitute themselves. As such, these non-governmental entities are derivative because they derive their power, principally manifested in their juridical personality and legal authority, from the instrumentalities of the state. These state instrumentalities, in the aggregate, constitute the government, or the apparatus of the state. These non-governmental entities are also semi-autonomous because their authority cannot be exercised independent of the authority from which they derive their status. Having derived their authority from the state, their autonomy is thus dependent on the state.17 Lastly, these entities are partial entities because their power, authority, independence, and characteristics can approach, but never equal or exceed, the totality of political power that is vested in the state. The state alone is said to be able to exercise the totality of this political power; it is a power that cannot be alienated.
The normative basis for evaluating the proper conduct of a state, as the locus of political power within a defined territory, is to some large extent bundled up in the complex of concepts understood as the "rule of law:" Page 34
What we in the West have come to call the "rule of law" has always been a multi-edged sword. It is most commonly deployed to guard against arbitrary use of state power by people with access to that power. It is in this sense that the rule of law is perhaps best understood. In its basic political sense it encompasses ideals such as free and fair elections, protected through the instrumentalities of the state, principally the independent judiciary, against abuse by individuals. The rule of law can also be used to protect a polity against its own excesses.18
As a consequence, conformity of the state to accepted standards of rule-of-law notions tends to be measured only against the performance of the state-principally through its government. The core of this measure is focused on the regularization of rulemaking. Power must be exercised only through regular processes of rule making.19 Rules must apply fairly to all, and the mechanisms for their enactment and enforcement must also be applied fairly and equally to all.20 No individual is above fairly enacted rules, nor is any individual delegated the power to make rules other than as part of systems for rulemaking that are representative and not inherently arbitrary.21 Additionally, all laws must respect certain Page 35 boundaries of state power.22 Law must not be used for bad ends.23 While this moral or ethical component can take many forms, it generally encompasses behavioral norms now commonly understood to comprise an international system of human rights.24
However astute and laudable the aims and analysis, this Article suggests that the standard Chinese rule-of-law analysis model is only partially correct. The problem of rule of law in China is indeed the problem of the Chinese Communist Party. But having gotten that part right, the standard analysis tends to get everything else wrong. By treating rule-of-law principles as substantially more than a set of framework principles, and by measuring compliance with this framework against a rigid set of secondary assumptions about the way a state expresses rule for law compliance, that analysis invariably misses the Page 36 critical element in the development of rule-of-law culture in China. That critical element is the CCP.25
This Article argues that no rule-of-law analysis of China is useful or complete unless it seriously considers two structural aspects of Chinese governance usually ignored in the standard analysis. The first is the Chinese Communist Party and its formal role in political governance. The second is the generation-old and still incomplete work of the CCP to develop a sound ideological basis for rule through law in China. This Article suggests that the Chinese State Government is a combination of both the formal apparatus of government-its institutions and governing instruments-and the CCP as the party in power. The question of rule of law in Chinese terms, then, must center on the CCP, and not on the state apparatus, which the CCP controls.
For rule of law to find its way into the formal structures of Chinese government, the CCP must first internalize a rule-of-law culture into its own governance, and then into its relationship with the formal political institutions of the State through which it governs. Only when this is realized will it be possible to extend...