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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.