Thursday, August 28, 2014
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Building a Chinese Rechtsstaat

HONG KONG – A consensus is rapidly emerging within China that the rule of law is the single most important precondition for inclusive, sustainable, and long-term peace and prosperity. So it is worth considering how the rule of law differs from China’s current institutional arrangements.

The rule of law has been defined in a variety of ways, but most authorities agree on certain key characteristics. As Kenneth W. Dam of the University 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 that favor them to their benefit.

Thomas Bingham, former Lord Chief Justice and Senior Law Lord of the United Kingdom, proposed a somewhat more expansive, though clearly compatible, definition. For Bingham, the law must be accessible and – insofar as possible – intelligible, clear, and predictable. Everyone should be governed according to law, insulated from the personal discretion of those in power, and legal disputes should be resolved without prohibitive cost or inordinate delay. There should be equality before the law, together with adequate protection of fundamental human rights.

Moreover, state power should be exercised reasonably, in good faith, and for the purposes for which it was conferred, with independent courts and judicial review of legislation ensuring that government does not exceed the limits of its authority. The courts and other official adjudicative bodies should provide fair procedures. And the state must comply with its obligations in international law.

The rule of law cannot be built overnight. In England, the common-law tradition evolved over hundreds of years through thousands of legal cases in which local lawyers, judges, and juries played key roles. In Continental Europe, meanwhile, the rule of law appeared in the form of the civil-law tradition, which originated from Roman and Napoleonic codes that were revised periodically in response to regime change and revolution.

Under both traditions, the rule of law requires a living body of rules and practices that adapts to changes in values, institutions, practices, expectations, and behaviors in a complex social system. This may be why Alexis de Tocqueville’s The Old Regime and the Revolution is widely read today in Beijing.

Over the last 30 years, China, which adopted the civil-law tradition, has advanced rapidly along the path of rule by law, enacting laws and regulations similar to those in the West. It now enforces rules, regulations, and property rights for real estate and other assets, for starting a business, for employment, and for international trade and investment – all of which has made China’s economic rise possible.

But, as China’s economy and society advance, engagement with global markets and growing awareness of rights have caused expectations to change faster than the law and judicial practices. The Chinese people are no longer satisfied with rule by law and are demanding an end to systemic corruption, inadequate land rights, discrimination against migrant workers, state-owned enterprises’ privileged position, and weak protection of intellectual property.

Will China be able to establish the rule of law as it is understood and practiced in the West and elsewhere in Asia?

In the absence of an independent judiciary, legal disputes in China are often resolved administratively, which means that discretion and lack of due process are a constant danger: as the Chinese saying goes, it is easy for someone to catch fish in muddied waters. This is why a key Confucian principle holds that one cannot rule the state without exercising discipline over oneself.

Indeed, it is unclear whether a judiciary that is independent of the Chinese Communist Party can be developed, or how the CCP should separate itself from the government machinery. As Peking University law professor He Weifang has asked, should the CCP first subject itself to the Chinese constitution?

China faces a long journey in building the rule of law, and sequencing that journey requires a holistic understanding of the role of the CCP. That role partly reflects the CCP’s birth in 1921 out of the violence and chaos that followed the collapse of the Qing Dynasty nine years earlier, as well as the three decades of civil war and Japanese colonization that intervened before the party took power in 1949.

That legacy has shaped a deep aversion to 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 science and technology. Over time, the CCP has demonstrated its willingness to change its institutions, policies, style of operations, and short-term objectives in order to advance its core mission of building a modern China.

Outside observers often forget that reform in China involves changing the oldest, largest, and most complex bureaucracy in the world. Over the last few decades, the CCP has succeeded in building the hard physical infrastructure of a modern state, but the creation of the soft infrastructure – institutions and practices consistent with the rule of law and representative government – is only beginning.

Given China’s past experience, we are likely to see a period of institutional innovation, characterized by marginal changes leading to a system of checks and balances on the exercise of state power. This will require orchestration from the top and experimentation at the bottom.

Nowadays, the proliferation of social media both facilitates that task and makes it more urgent. Successful models 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 the rule of law if China’s modernization is to continue.

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  1. CommentedLeo Arouet

    China must make reforms in all fields, preferably in the judiciary and the state.

  2. CommentedMike Chu

    Perhaps a somewhat simplistic view of the issues, but: Isn't the western common law rooted in the Old Testament (eye for an eye); left brained; forces one into black and white, right or wrong, us vs. them, guilty or not-guility; debtor (commoners) vs creditor (the rulers). So, the other side of that is: New Testsment (forgiveness); right brained; unifying, accepting; economic equality.

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