The rule of law in China.

• Author: Orts, Eric W.

ABSTRACT

This Article explores contemporary meanings of the rule of law with a focus on its meaning in Chinese history and tradition, as well as Chinese legal institutions. Part II considers the concept of law in China, from early understandings in Confucianism and Legalism to more recent treatments in Chinese Communism. It also reviews efforts that the People's Republic of China has made in recent decades to strengthen its legal institutions. Part III begins with a discussion of the Western jurisprudential idea of the rule of law and suggests a distinction between two basic understandings: (1) rule by law as an instrument of government, and (2) the rule of law as a normative and political theory. The Article proceeds to make a controversial claim that Chinese development of the rule of law may be separated from the development of Western-style democracy, at least in the present historical situation. The Article concludes with several recommendations for promoting the rule of law as a normative and political system in China.

[T]he political and civil laws of each nation must be proper for the people for whom they are made, so much so that it is a very great accident if those of one nation can fit another.... [The laws] must agree ... with the customs [of the people].(1) -- Montesquieu For governing the people there is no permanent principle save that it is the laws and nothing else which determine the government. Let the laws roll with the times and there will be good government.... But let the times shift without any alteration of the laws and there will be disorder.(2) -- Han Fei I. INTRODUCTION

Establishing the rule of law in China has become a priority for its government.(3) Deng Xiaoping and his successors have recognized the folly of the Maoist period's denigration of law and lawyers, especially the extraordinarily destructive Cultural Revolution which decimated the legal system as it then existed.(4) The current generation of Chinese rulers has promoted "the rule of law" to the extent of adopting a constitutional amendment in 1999 to enshrine the principle.(5) President Jiang Zemin now proclaims that the Chinese Communist Party is fully committed to "govern the country according to law."(6)

In part, this reform effort corresponds with China's expected entry into the World Trade Organization (WTO), which requires an internal legal system administered in a "uniform, impartial, and reasonable manner."(7) Establishing the rule of law in China thus coincides with the notion that economic modernization requires "getting on track with the international community" (gen gouji jiegui).(8) At the same time, the advocacy of new laws and an improved legal system to enforce them is intended to advance an indigenous "market economy with Chinese characteristics,"(9) which seems to be an evolving amalgam of socialist one-party government and commercial markets.(10)

Recently in the United States, both Democratic and Republican political leaders have invoked promotion of the rule of law as an argument in favor of permanent normal trade relations with China.(11) The general argument is that increased trade with China will not only encourage further development of its legal system but also will lead to positive political change.(12) In other words, the claim is that "promoting the rule of law advances both profits and principles."(13) This argument helped to win a close debate in Congress on the issue. President Clinton declared the vote of the House of Representatives in May 2000 in favor of normal trade relations to be a step toward "a China that is more open to our products and more respectful of the rule of law at home and abroad."(14) The Senate approved permanent trade relations with China in September 2000,(15) and the President signed into law the China Trade Relations Act of 2000 in October.(16) The George W. Bush Administration has confirmed that it will continue a policy of pressing China to follow "the rule of law."(17)

This Article considers exactly what the rule of law may mean in China now and in the future. The concept itself is notoriously difficult as a matter of jurisprudence, and different people can mean very different things by the rule of law, especially when they are speaking in different languages and from the perspectives of different cultures.(18) This Article explores contemporary meanings of the rule of law in order to better understand China's legal system, as well as Western interpretations of what the rule of law may mean in China. Today, the rule of law is a "paradigm" that enjoys popularity among politicians and legal scholars in China.(19) The potential for China's legal institutions to evolve from "a system of law" to "a rule of law" is likely to be critical for future political and economic development.(20) A contemporary Chinese slogan proclaims correctly that "the market economy is a rule-of-law economy" (fazhi jingji).(21) As the Article discusses, however, there is a substantial difference from a normative perspective between the mere existence of a legal system and establishing the rule of law.(22)

Inevitably, I bring a Western jurisprudential perspective to my consideration of Chinese law. Despite this cultural limitation, however, I attempt in this Article to provide a useful perspective on the idea of the rule of law to assist the development of law and legal institutions in China. The Article also argues that Western and other non-Chinese policymakers should think carefully about the descriptive and normative complexity of the rule of law in the unique cultural and political context of contemporary China.

This Article proceeds as follows. Part II considers the concept of law in China historically and currently. Those who are quick to assume the superiority of Western legal models should remember that China's legal traditions have been evolving within a continuous civilization for more than two thousand years.(23) Part II discusses Chinese understandings of law in the traditions of Confucianism and Legalism, as well as more recent treatments of law in Chinese Communism. It also reviews the strenuous efforts that China has made in the last few decades to strengthen its legal institutions, an epic project of social engineering that has been compared with the construction of the Great Wall in the fifteenth and sixteenth centuries.(24)

Part III then reexamines the Western jurisprudential idea of "the rule of law" in general and, drawing on a number of major sources, recommends a distinction between two basic understandings: (1) rule by law as an instrument of government, and (2) the rule of law as a normative and political theory. Both conceptions of the rule of law, the Article will argue, are important for understanding the development of law in China. Both are also essential for China to continue on a path toward social progress as a part of the world community.

Furthermore, the Article makes a more controversial claim that developing the rule of law in China in the normative and political sense may be divorced from a theory of democracy, at least under the present historical circumstances.(25) This claim leads to some policy recommendations for both the development of legal institutions within China and foreign policy regarding China. When making foreign aid and other diplomatic decisions regarding China, Western policymakers often conflate arguments in favor of the "rule of law" with other presumed social goods such as "democracy" and "human rights."(26) But it is important to consider carefully the relationship among these social goods. In this respect, the Article takes up William Alford's challenge to ask "difficult questions" about the relationship between different "goods" that are promoted in foreign policy, including "democracy, the rule of law, fundamental human rights, markets, economic development, and civil society."(27)

The Article concludes with an exploration of how several of these different social goods may relate to one another in China. The most fundamental policy conclusion is that Western societies, including the United States, can find common ground and pursue mutual interests in helping China to build the institutional infrastructure needed to support the growth of the rule of law both descriptively and normatively. A corollary is that strong disagreements about the need for "democracy" should not necessarily interfere with constructive work that can be done regarding the "rule of law," even though disagreements about the need for (and the nature of) democracy in China will continue. At least with respect to the need for the development of the rule of law, the Article therefore argues against an inevitable "clash of civilizations" between China and Western societies that threatens to break out into a new Cold War.(28) Mutual agreement about the need to build legal institutions also may lead eventually to productive diplomatic discussions and compromise about more difficult normative questions of democracy, human rights, and economic development.

2. LAW IN CHINA

   In Western societies, "the rule of law" is an "essentially contested concept. "(29) In China as well, "the rule of law" (fa zhi) has been contrasted with "the rule of individuals" (ren zhi).(30) But what the rule of law actually means in the Chinese context is open for debate.(31) According to some observers, recent events indicate that the Chinese government is now "serious about the establishment of a genuine legal system based upon the rule of law."(32) At least the last few decades in China have witnessed "the most concerted effort in world history to construct a legal system."(33) Other commentators doubt "whether a true rule of law exists, or will ever exist, in China" given its "legacy of the past and persistent political intermeddling."(34) To assess which of these views of the prospects for the rule of law in China is most likely and what it might mean for the future, it is...