Rule of Law in China: Historical origins, present state, future prospects
In this article, Tim Hagemann analyses which historical differences exist between the Chinese and Western understanding of Rule of Law, if China could be described as a Rule of Law country and finally dares to give a little forecast into its future development.
The People's Republic of China in 2019: 1.4 billion people are on the verge of becoming one of the shaping nations of the 21st century. By smartly adapting western style economic policies and transforming the totalitarian state of Mao Zedong and the Gang of Four to a more subtle technocratic autocracy under the reign of Deng Xiaoping, the country that roughly 50 years ago still had to recover from the devastating turmoil of the Cultural Revolution has already managed to climb to the olymp of the world's leading industrialized nations. But does this modernization of the economic sector go in hand with the modernization of the legal system, leading to what western scholars would describe as Rule of Law in China?
Though Rule of Law is already a widely known concept, there is still a huge academic dispute about its exact definition.[1] Does the system only consist of publically declared laws with prospective application, that inherit the characteristics of generality, equality and certainty as the proponents of the formal or thin theory of Rule of Law argue or are individual rights and even the implementation of democratic structures necessary, as the advocates of the opposing thick theory allege?[2] Since the precise extent of the thick theory is still by far more difficult to define, but does, however, always base on the formal characteristics of the thin theory, we will hence make use of the latter and resort to the thick theory if necessary.
Historical Development
To get an insight on the Chinese understanding of Law (法), it is essential to comprehend the development of what has been understood as Rule of Law (法治) through the course of Chinese history, from the Imperial Time to the Establishment of the Republic and People's Republic of China through the Era of Mao Zedong and Deng Xiaoping.
Imperial Rule
Speaking of the legal principles, that are inseparable linked to the imperial understanding of Law in China and that still have a deep impact on modern sense of justice, one has to understand the legal theories of Legalism and Confucianism.
Legalism (法家) was the first major Chinese philosophical theory that focused entirely on codified law to achieve social order. Through a system of granting awards for obedience and enforcing harsh punishments for misbehavior, it demanded ultimate submission of all the ruler's subordinates under his authority.[3] Since the law was enforced, openly declared and generally valid in regard to all subordinates, an applied legalist theory would technically meet the standards of Rule of Law. However, in practice, its purpose and enactment calls this categorization into question.
This paradoxon is well reflected in the writing of the most influental legalist theorist and author Han Fei (韩非), who does on the one hand express his will to let the law rule by itself without further interference or scholarly interpretation in a way that it is applicable to all social classes equally. On the other hand, he is strongly in favor of the nobility enacting the law solely by themself, thus creating a state in which the law merely serves as a guarantee to uphold the privileges of the upper class against social unrest, effectively a Rule by Law instead of a Rule of Law.[4]
While in Legalism, the codified Law is the dominating feature, the opposing philosophical school of Confuciansm (儒家 ) bases the well being of society on traditional rites and ethics (禮 ) and regards the presence of human made law as an indicator for declining public morals. Orthodoxe Confucianists do therefore neglect the principle of a codified legal system that indiscriminately applies to everyone regardless of his social status and relies on a paternalistic monarch, that leads his subjects wisely as a father would lead his family.
Although Legalism declined soon after the downfall of the only dynasty implemting it as its official state doctrine – the short-lived Qin-Dynasty – it nevertheless had a deep impact on the further development of China's jurisprudence and alongside Confuciansm formed the state's understatement of law until the end of Imperial reign.[5]
Late Empire and Republic of China
Despite occasional efforts of scholars and officials to alter the status quo, major change did not occur until the very end of the Qing-Dynasty, when the imperial government realized the importance of a progressive westernized legal system. Following the example of Meiji Japan, China translated continental European legal codes (especially from the German Empire) and attempted to codify their law.[6]
Neither being able to let go of their neo-confucian roots nor to understand the needs of the ordinary citizens, the Qing were overthrown by the Xinhai Revolution under Sun Yat-Sen (孫中山) in 1911 and got replaced by the Republic of China.[7] It was then, when the Nanjing Provisional Government established the Provisional Constitution of the Republic of China (中华民国临时约法), that cut back then ruling president Yuan Shikai's (袁世凱) authority to exert power and guaranteed the idependence of the Judiciary system.[8] Since the republican forces were, however, militarily in no position to enforce the constitution, Yuan Shikai used his political power to widely disregard it and Rule of Law only existed in theory. As a result, the state soon drifted into a chaotic reign, warlords declared their territory independent and introduced the republic to an era of continuing civil war.[9] Although loosely reunited by Guomindang (KMT) leader Chiang Kai-Shek's (蒋介石 ) armies during the Northen Expedition in 1928, the constitution was not reinstalled. Founding a one-party rule soon after, the KMT led government was characterized by a corrupt administration and surpression of all opposing forces, soon abandoning the idea of democratic reforms until the end of nationalist control of mainland China in 1949.[10]
The PRC under Mao Zedong
Emerging victorious from the struggle for power with the KMT, the Communist Party of China (CPC), led by Mao Zedong (毛泽东) founded the People's Republic of China (PRC) in 1949. Outruling all laws made by the KMT administration as one of their first political acts, they replaced the former constitution by the Common Program, that included citizens of all social classes in forming a new socialist society.[11] Although formally granting democratic and legal rights, especially criminal cases underwent official procedure only occasionally. Instead, mass-trials were held, that often included public denunciation and hardly followed any procedural rules, not seldom leading to the summary execution of the accused.
After roughly 5 years in power, the Common Program was soon replaced by the 1954 constitution. Promoting a socialist nation under the leadership of the working class, the newly proclaimed constitution should lead the society to a socialist economy and set up a legal system modelled after the Soviet Union.[12] The Soviet system, however, was soon brought into discredit after the Sino-Soviet Split occured in late 1950s, which led to it being continuesly disregarded by the authorities and even key principles such as the election of the National Peolple's Congress every 4 years were not adhered. Additionally, many legal scholars who critizised the CPC government during the 100 Blossoms Campaign in 1957 were hence purged from office or inprisoned, leaving the legal system solemnly in the hands of the CPC leadership. The 1954 Constitution was then, hardly ten years after the 100 Blossoms campaign, absolutely nullified by the era of Cultural Revolution (1966-1976), when the whole countries institutions effectively ceased working due to Maoist Red Guard's uproar against asserted rightists among the CPC senior cadres on all levels.[13] Believing the soviet inspired law would risk the archievements that the proletariate made since the establishments of the PRC, laws were no longer enforced, courts disbanded, law schools closed and informal basic level mediation soon became the most common form of legal procedure.[14]
The PRC after the Cultural Revolution
The Cultural Revolution lasted effectively till the eventual death of Mao Zedong in 1976. At that time, the 3rd constitution of 1975 had been installed, a Maoist attempt to preserve the „archievements“ of the Cultural Revolution. Whilst decreasing the already diminished amount of civil rights to an absolute minimum, it replaced local authorities formally by Revolutionary Committees.[15] However, with the death Mao Zedong, the majority of party members - many of whom who had to endure severe atrocities in the last decade - were eager to reinstall a functioning legal system.[16] As a consequence, leading heads of the Cultural Revolution – commonly known as the Gang of Four – got arrested in the same year and trialed in 1981 for anti-party crimes as well as the estimated death of over 1 milion people during their reign.[17] Furthermore, a new constitution replaced the one from 1975 only 3 years later, reinstalling the greater part of the 1954 Constitution and emphasizing the necessity of a Socialist Democracy.[18] After a short interlude by Hua Guofeng, Deng Xiaoping (邓小平) rose to power and initiated legal and economic reforms under the slogan A Market economy country is a Rule of Law country, that his successors pledged to enforce ever since.[19]
Present Situation
As already stated, the huge majority of western scholars and politicians tend to take the view, that current day PRC still lack the basic fundament for a Rule of Law Country, accusing Chinese authorities of several infringements of civil and human rights such as the detention of dissidents, media censorship and undermining the independence of judicial power.[20]
These opinions, however, do not consider the vast social, political and especially legal transformation China had to overcome after the departure from Maoist totalitarianism in favor of Deng Xiaoping's reform course. While at the peak of the Cultural Revolution, almost no lawsuits were filed, official statistics counted as much as 5 milion civil cases in 1996, the mere number of 5.500 law professionals in early 1980s increased to more than 110.000 in 1998 and the hence closed Chinese law schools are frequently considered to be among the best in Asia.[21]
While the period prior to Deng Xiaoping's leadership has been characterized by frequent infringements of the constitutional order due to Party requirements, direct political interference has become less and less common.[22] Corruption and undermining the PRC's law for their own benefits have on the contrary been subject to the new policy of now ruling Xi Jinping (习近平), who stated, that neither lower nor higher officials are allowed to place themselves above the law.[23] It was for that reason, that the 1982 Reform Constitution's 5th Article has been ammended in 2004, now stating, that all state power has to abide the law.[24] Although lawsuits against higher officials are still not feasible without the party's agreement, some spectacular cases of fighting corruption and bringing even high functionaries before court have taken place in the last decades. Despite political reasons may have played a certain role, the new line of the PRC government is illustrated especially well by the case of high party official Bo Xilai. Bo, former Dalian and Chongqing partyleader and dedicated member of the so called New Left group inside the CPC, that tried to reinstall Maoist practices in modern day Chinese politics, was just recently found guilty and sentenced to life imprisonment on charges of bribery, corruption and abuse of power.[25] While his political affiliation – as I already stated above – may have been hardly advantageous for his course, the handling of the case by the state's officials displays at least the will to actually enforce the constitutional statutes – just 4 decades ago unimaginable.
Is the PRC despite western criticism therefore already a steadfast Rule of Law Country? This interpretation still has to be firmly rejected. Although the advancement of Rule of Law in China improved significantly during the last decades, corruption among state officials on all levels, political interference in judicial practices and the lacking supervision of the government by the National People's Congress still pose a vast problem to it's further implementation.[26]
A small prospect on the further development
Overwhelmingly unnoticed by western media, a decentralized movement of legal scholars and lawyers aiming to protect citizens constitutional rights and to denounce government malpractice, the so called Weiquan Movement (魏区谙运动) was formed in recent years. Despite insisting solely on principles granted by the PRC's Constitution itself, they often got persecuted by regional state authorities for their involvement in civil rights groups or for publically demanding more democratic and civil rights.[27]
Implementing these will largly rely on the will of the vast majority of citizens to fight actively for a more rigorous practise of constitutional granted rights and duties. The people's interest in current legal affairs increases more and more as can be seen by the great attention that criminal cases currently enjoy: Overregional and local broadcasting companies alike report the latest cases, China's blogs overflow with articles dealing with local lawsuits and wrongful judgement has several times caused a public outcry (e.g. the case of Sun Zhigang), leading the administration to alter regulations and policies.[28]
As public awareness on legal issues rises, it remains to be seen, if this will lead to a more intense call for constitutional stability and democratization by citizens or if constant economic growth and monetary participation will in future still be sufficiant to preserve the status quo. But what will happen, if the economic growth falls short, what if the social disparity between coastal and central China, migrant labourer and businessmen will further increase? It is only hard to imagine, that a well educated population will permanently stick to their confucian traditions and accept the paternalistic rule of the leading party forever.
How the government will react, if it will firmly reject all approaches to alter the current status has yet to be determined. However, that China will not eventually experience any legal progress is due to it's increasingly educated, growing middle class and it's still unresolved social issues hard to imagine.
[1] Tamanaha, Brian Z. (2004). On the Rule of Law. Cambridge University Press. p.9.
[2] Tamanaha, Brian Z., The Rule of Law for Everyone?. St. John's Legal Studies Research Paper. Available at SSRN: http://ssrn.com/abstract=312622
[3] Watson, Burton, trans., Basic Writings, Han Fei Zu, pp. 28-29.
[4]Xiangming, Zhang; On Two Ancient Chinese Administration Ideas: Rule of Virtue and Rule by Law, The Culture Mandala: Bulletin of the Centre for East-West Cultural and Economic Studies, 2002.
[5]LeFande, Matthew August; Aspects of Legalist Philosophy and the Law in Ancient China: The Chi'an and Han Dynasties and Rediscovered Manuscript of Mawangdui and Shuihudi; via http://www.lefande.com/AncientChinaLaw.htm
[6]Yu Jiang, "Jindai Zhongguo faxue yuci de xingcheng yu fazhan" [u8fd1u4ee3u4e2du56fdu6cd5u5b66u8bedu8bcdu7684u5f62u6210u4e0eu53d1u5c55: "Formation and development of modern Chinese legal language and terms"] in Zhongxi falü chuantong [u4e2du897fu6cd5u5f8bu4f20u7edf: "Chinese and Western Legal Tradition"], vol. 1 (Beijing: Zhongguo zhengfa daxue chubanshe, 2001).
[7]Trocki, Carl A. (1999). Opium, empire and the global political economy: a study of the Asian opium trade, 1750–1950. Routledge. p. 126. ISBN 0-415-19918-2.
[8]Provisional Constitution of the Republic of China, via http://www.gongfa.com/linshiyuefa.htm (Chinese).
[9]Fenby, Jonathan, Chiang Kai Shek: China's Generalissimo and the Nation He Lost, Da Capo Press, 2009, p.136-138.
[10]Fung, Edmund; In Search of Chinese Democracy: Civil Opposition in Nationalist China, 1929-1949 (Cambridge; New York: Cambridge University Press, 2000, p.30.
[11]Common Program of the People's Political Consultative Conference, via: http://e-chaupak.net/database/chicon/1949/1949e.pdf
[12]Cohen, Jerome Alan (1978). "China's Changing Constitution". The China Quarterly (76): pp. 794–841; Constitution of the People's Republic of China (1954), Article 1, via: http://echaupak.net/database/chicon/1954/1954bilingual.htm
[13]Cohen, (1978).
[14]Cohen, (1978).
[15]Cohen, (1978).
[16]Peerenboom, Randall; China's Long March towards Rule of Law; Cambridge University Press, Cambridge, 2002, p.55.
[17]MacFarquhar, Frederick, Shoenhals, Michael; Mao's Last Revolution; Belknap Press of Harvard University Press, 2006, p. 258.
[18]Cohen, (1978).
[19]Peerenboom, (2002).
[20]Peerenboom, (2002), p.2; "Internet Censorship in China". New York Times. 22 March 2010. Retrieved on 30th Octover 2013.
[21]Peerenboom, (2002), p.7.
[22]Peerenboom, (2002), p.7.
[23]Liao, Rebecca, Why Bo Xilai's Trial is a victory for Rule of Law in China, TheAtlantic, 2013, via: http://www.theatlantic.com/china/archive/2013/08/why-bo-xilais-trial-is-a-victory-for-the-rule-of-law-in-china/278448/
[24]Peerenboom, (2002), p.57.
[25]Liao, (2013).
[26]Herberer, Thomas, Korruption als Globales Problem und seine Ausprägungen in Ostasien, Discourses on Political Reform and Democratization in East and Southeast Asia in the Light of new processes of regional community building, Project Discussion Paper 09/2011, p.15.
[27]Pils, Eva: Charter 08 and the dark sides of the Weiquan Movement, Chinese University on Hongkong, 2012, p.9.
[28]Peerenboom, (2002), p.3.