A consensus is rapidly emerging within China that the ruleof law is the single most important precondition for inclusive, sustainable,and long-term peace and prosperity. So it is worth considering how the rule oflaw differs from China’s current institutional arrangements.
The rule of law has been defined in a variety of ways, butmost authorities agree on certain key characteristics. As Kenneth W. Dam of theUniversity of Chicago formulates it in his book The Law-Growth Nexus, the rule of law excludes secret law and legal impunity,while protecting individuals from legal discrimination and enforcing rules thatfavor them to their benefit.
Thomas Bingham, former Lord Chief Justice and Senior LawLord of the United Kingdom, proposed a somewhat more expansive, though clearlycompatible, definition. For Bingham, the law must be accessible and – insofaras possible – intelligible, clear, and predictable. Everyone should be governedaccording to law, insulated from the personal discretionof those in power, and legal disputes should be resolved without prohibitive cost or inordinatedelay. There should be equality before the law,together with adequate protection of fundamental human rights.
Moreover, state power should be exercised reasonably, ingood faith, and for the purposes for which it was conferred,with independent courts and judicial review oflegislation ensuring that government does not exceed the limits of itsauthority. The courts and other official adjudicativebodies should provide fair procedures. And the state must comply with itsobligations in international law.
The rule of law cannot be built overnight. In England, thecommon-law tradition evolved over hundreds of years through thousands of legalcases in which local lawyers, judges, and juries played key roles. InContinental Europe, meanwhile, the rule of law appeared in the form of thecivil-law tradition, which originated from Roman and Napoleoniccodes that were revised periodically in response to regime change andrevolution.
Under both traditions, the rule of law requires a livingbody of rules and practices that adapts to changes in values, institutions,practices, expectations, and behaviors in a complex social system. This may bewhy Alexis de Tocqueville’s The Old Regime and the Revolution is widely readtoday in Beijing.
Over the last 30 years, China, which adopted the civil-law tradition, has advanced rapidly along thepath of rule bylaw, enacting laws and regulations similar to those in the West. It nowenforces rules, regulations, and property rights for real estate and otherassets, for starting a business, for employment, and for international tradeand investment – all of which has made China’s economic rise possible.
But, as China’s economy and society advance, engagementwith global markets and growing awareness of rights have caused expectations tochange faster than the law and judicial practices. The Chinese people are nolonger satisfied with rule by law and are demanding an end to systemic corruption, inadequate land rights,discrimination against migrant workers, state-owned enterprises’ privilegedposition, and weak protection of intellectual property.
Will China be able to establish the rule of law as it isunderstood and practiced in the West and elsewhere in Asia?
In the absence of an independent judiciary, legal disputesin China are often resolved administratively, which means that discretion and lack of due process are a constantdanger: as the Chinese saying goes, it is easy for someone to catch fish inmuddied waters. This is why a key Confucian principle holds that one cannotrule the state without exercising discipline over oneself.
Indeed, it is unclear whether a judiciary that is independentof the Chinese Communist Party can be developed, or how the CCP should separateitself from the government machinery. As Peking University law professor HeWeifang has asked, should the CCP first subject itself to the Chineseconstitution?
China faces a long journey in building the rule of law, andsequencing that journey requires a holistic understanding of the role of theCCP. That role partly reflects the CCP’s birth in 1921 out of the violence andchaos that followed the collapse of the Qing Dynasty nine years earlier, aswell as the three decades of civil war and Japanese colonization thatintervened before the party took power in 1949.
That legacy has shaped a deep aversionto the chaos arising from war and civil strife,and drove the CCP under Zhou Enlai to seek growth and stability through the“Four Modernizations” of agriculture, industry, national defense, and scienceand technology. Over time, the CCP has demonstrated its willingness to changeits institutions, policies, style of operations, and short-term objectives inorder to advance its core mission of building a modern China.
Outside observers often forget that reform in China involveschanging the oldest, largest, and most complex bureaucracy in the world. Overthe last few decades, the CCP has succeeded in building the hard physicalinfrastructure of a modern state, but the creation of the soft infrastructure –institutions and practices consistent with the rule of law and representativegovernment – is only beginning.
Given China’s past experience, we are likely to see aperiod of institutional innovation, characterized by marginal changes leadingto a system of checks and balances on the exercise of state power. This willrequire orchestration from the top and experimentation at the bottom.
Nowadays, the proliferationof social media both facilitates that task and makes it more urgent. Successfulmodels and effective policies can be shared and emulated more easily than ever,which will persuade more people than ever that there is no alternative to therule of law if China’s modernization is to continue.