The Fifteenth Chinese Communist Party Congress, convened in September 1997 in Beijing, proposed for the first time since reforms began at the end of the 1970s that the Party would give its highest priority to the rule of law. The second plenary session of the Ninth National People抯 Congress, held in March 1999, declared that a new constitutional amendment would be made to give constitutional legitimacy to the 搑ule of law?(1). Meanwhile, Jiang Zemin and other major leaders argued that the rule of law is a key to the building of Chinese democracy (2). While rule by law has been repeatedly emphasised by major Party leaders, however, the rule of law is barely mentioned. Will the transition from rule by law to rule of law become possible in China with the Party抯 endorsement?
Scholars disagreed on this issue. The more pessimistic of them have contended that it is not possible because of the absolute antinomy between Chinese socialism and the rule of law (3). For those who advocate a fundamental change in China抯 legal system, the constitutionally era will not fully arrive until the one-party dictatorship system ends (4). On the other hand, the more optimistic believe that China is developing towards a country that could adopt the rule of law even though it still has enormous obstacles to overcome (5).
How should Chinese law in its current transition be explained? Controversies abound due to different analytical concepts used to interpret the development of China抯 laws and legal system. Starting in the late 1970s, Chinese scholars began using Western legal concepts in their debates on what kind of legal system China should develop and on how the system could be developed (6). Similarly, Western scholars used their own concepts to interpret China抯 legal development. An important aspect has been ignored, however, which is that China抯 legal development has occurred in the context of its transitional socio-economic and political order. Laws were made not based on the ideals and perceptions of law of Chinese leaders and scholars, but in accordance with the necessity of socio-economic development. In understanding legal developments in post-Mao China, it is necessary to develop a, if not the, Chinese way, rather than to assuming Western concepts to interpret and explain it.
A number of articles have been published that are dedicated specifically to an interpretation of the development of China抯 legal system from a legal perspective (7).The purpose of this article is to provide an explanation of the development of law and the legal system in post-Mao China by placing it in the context of China抯 transitional socio-economic and political order. Locating China抯 legal development in the socio-economic and political context will enable me to show why rule by law is an unavoidable developmental stage in China抯 legal progress, and also to analyse the difficulties of the transition from a rule by law to a rule of law.
Rule of law vs. rule by law
In the Western context, according to Black抯 Dictionary of Law: 搕he rule of law?refers to 揳 legal principle, of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition. The rule of law, sometimes called 憈he supremacy of law? provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application?(8).
The notion of the rule of law, however, does not merely imply the existence of law and its application. It was developed in the context of Western liberalism as a means of restraining arbitrary actions by those in power. According to Friedrich A. Hayek, 搑ule of law?means that: 揼overnment in all its actions is bound by rules fixed and announced beforehand梤ules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one抯 individual affairs on the basis of this knowledge?(9). More concretely, rule of law means, first, that laws must be applicable to every individual in a given society; second, the rulers must follow the laws as the ruled do; and third, the rulers?behaviour is predictable (10). In this sense, Franz Michael contends that:
Rule of law is the very foundation of human rights. In the Western legal tradition, law is applied equally to all; it is binding on the lawgiver and is meant to prevent arbitrary action by the ruler. Law guarantees a realm of freedom for the members of a political community that is essential to the protection of life and human dignity against tyrannical oppression and to the regulation of human relations within the community (11).
When scholars analysed the development of the legal system in post-Mao China, they discovered that the Chinese concept of the rule of law was quite different from that understood in the West. Richard Baum distinguishes 搑ule of law?from 搑ule by law?in the following way. He considered that the concept of rule of law belongs to the West and connotes a pluralistic law reflecting a delicate balance of social forces, acting as a shield to protect various socio-economic classes and strata against the arbitrary tutelage of government. On the other hand, he considered rule by law in China to mean: 搕he statist instrumentalism [that] invokes both the doctrines of traditional Chinese legalism [and the] bureaucratic ethos of Soviet socialist legality? which was transferred to China in the 1950s (12). In the same vein, Edward Epstein argues that law in China is: 搒till conceived and operates as an instrument with which to uphold the Socialist political order and perpetuate party domination? and is 搖sed to carry out and consolidate institutional, primarily economic, changes according to predetermined policy?(13).
On the Chinese side, rule of law has become a, if not the, major aim of Chinese political and legal development since reforms began in the late 1970s. The 搑ule of law?is clearly expressed in the sixteen-word formula proposed by the Third Plenum of the Eleventh Party Congress convened in 1978, that is, you fa ke yi, you fa bi yi, zhi fa bi yan, wei fa bi jiu (there must be laws for people to follow, these laws must be observed, their enforcement must be strict, and law-breakers must be dealt with). In this context, the terms and concepts such as 揺quality before the law? 搕he supremacy of law,?搑ule-of-law-state,?and 搇egalisation?have become popular in the Chinese discourse of legal development.
As in the West, the rule of law has been discussed in the context of democracy. Indeed, minzhu (democracy) and fazhi (legal system) are interchangeable terms in post-Mao China. In 1978, the communiqu?of the Third Plenum of the Eleventh Party Congress claimed:
In order to safeguard people抯 democracy, it is imperative that the socialist legal system be strengthened so that democracy is systematised and written into law in such a way as to ensure the stability, continuity and full authority of this democratic system and laws (14).
The aim of the rule of law or democracy is to guard people against arbitrary rule. According to Deng Xiaoping:
Democracy has to be institutionalised and written into law, so as to make sure that institutions and laws do not change whenever the leadership changes or whenever the leaders change their views?The trouble now is that our legal system is incomplete?Very often what leaders say is taken as law and anyone who disagrees is called a lawbreaker. That kind of law changes whenever a leader抯 views change. So we must concentrate on enacting criminal and civil codes, procedural laws and other necessary laws?These laws should be discussed and adopted through democratic procedures (15).
Thus, the rule of law is an ideal for legal development in China. But how can this ideal become a reality? Without doubt, a society evolving towards the rule of law is a society that will undergo a historical and political developmental process. Debates on the development of the legal system in China have focused on such an evolution. It is worth discussing some of the main concepts that Chinese scholars have used in these debates because it will help identify the dynamics within the Chinese system that are driving this development, and how they differ from the same concepts as they have been discussed in the West. These concepts include 搕he rule of men? 搕he legal system? 搕he rule by law?and 搕he rule of law?
Earlier debates about the development of the legal system centred on the rule of men vs. the rule of law. During Mao抯 time, because of 損olitics in command? Party policy was regarded as the soul of law and law as an instrument to realise Party policy. The notion of the rule of men was rejected when those who became Mao抯 victims such as Deng Xiaoping and Peng Zhen came to power. Deng and other senior leaders realised that without laws, neither the ruler nor the ruled could be protected from individual leaders?arbitrary behaviour. But the rejection of the rule of men does not mean rejection of the role of the Party-state in legal development. Scholars have argued that the rule of law and the rule of men are not contradictory, but are mutually complementary, simply because laws are made and implemented by men (16). Although these scholars were criticised in the Chinese academic circles, their main concerns were not unjustified (17). It has been argued that advocates of the unity of the rule of law and the rule of men are concerned that too much emphasis on the rule of law would downgrade the importance of the Party-state or the political leadership, and that law would become omnipotent and a source of superstitious power (18). Indeed, the Chinese Communist Party (CCP) has emphasised implicitly and explicitly that laws have to be made within the 揊our Basic Principles? In other words, the Party must stay above law. Nevertheless, behind their insistence on the role of the Party-state was the question of how a system based on the rule of law could be established without active participation of the Party-state in this process.
The concept of the rule of men has now disappeared from the Chinese discourse of legal development. But this does not mean that such an idea no longer exists. Even those advocates of the rule of law oppose legal fetishism. Chinese legal scholars and government officials have used different terms to indicate the way to the rule of law such as 搇egalisation? (establishing a legal system or fa zhi hua), 搑ule by law? (yi fa zhi guo) and 搑ule of law? (fa zhi). Even though `the majority of scholars rejected the idea of the rule of men which became especially prevalent during the Cultural Revolution, they did not believe that the rule of law would be established automatically nor in a short period of time. Certain historical or developmental stages would have to be passed first. The first step was to establish a legal system. Deng Xiaoping repeatedly emphasised his belief that Mao Zedong抯 great failure was not personal, but stemmed from institutional and organisational problems. In order to avoid such mistakes, a legal system had to be established. According to Deng:
It is true that the errors we made in the past were partly attributable to the way of thinking and style of work of some leaders. But they were even more attributable to the problems in our organizational and working systems. If these systems are sound, they can place restraints on the actions of bad people?Stalin gravely damaged socialist legality, doing things which Comrade Mao Zedong once said would have been impossible in Western countries like Britain, France and the United States. Yet although Comrade Mao was aware of this, he did not in practice solve the problems in our system of leadership (19).
A second step would be to act according to law, or rule by law. So in Chinese, the term fazhi (legal system) not only means the establishment of a legal system, it implies more importantly the ruling of a country in accordance with a legal system, i.e., 搕he rule by law? (yi fa zhi guo). In other words, a country would be governed not by leaders?personal authority, but by institutional authority.
According to the proponents of the rule of law, fazhi refers to 揳 given society抯 legal system established and implemented by the ruling class in that society through its state organizations?(20). From this perspective, fazhi exists in every type of society. But the modern concept of fazhi originated in the last two centuries. The bourgeois origin of fazhi, however, does not prevent China from learning from the West. Modern concepts of the rule of law, equality before law, democracy, justice and so on came from this also. Indeed, fazhi is a necessary and unavoidable stage in China抯 movement towards the rule of law.
Nevertheless, fazhi or the rule by law is not the rule of law, even though the former is the very foundation of the latter. As one Chinese scholar argues: 揳lthough every country has its own legal system in different historical stages, it is not necessarily a country with the rule of law. Even if there exists a legal system, a country cannot become a country governed according to the rule of law if the spirit of the rule of men becomes prevalent and dominant?(21). Fazhi is based in institutions and organisations, and it can be used for different purposes, meaning that a state or government can use its legal system to govern its society in different ways. But the rule of law means that every social member is governed by law, that both rulers and the ruled are governed by law, i.e. that everyone is equal before the law. Rule by law will not necessarily lead to this result. If laws are unable to regulate and constrain the ruler抯 behaviour, the rule of law cannot be realised. Indeed, Deng Xiaoping once commented: 搃t is not appropriate for the Party to intervene in everything that falls within the scope of the law. If the Party intervenes in everything, the people will never acquire a sense of the rule of law?(22).
Without doubt, it is difficult to say that the Chinese have not realised what the differences between rule of law and rule by law are. The rule of law has been stated to be the ultimate goal of the country抯 political and legal development. What concerns many Chinese scholars, and government officials to an extent, is how the rule by law can become the rule of law. Therefore, to a great degree, Western legal concepts cannot be the starting point to understanding legal development in post-Mao China. If it were, any views formed on China抯 legal system would be unrealistic.
The rule by law: Empirical data and analysis
While Mao was in power, China was regarded as a country without law, or a country of 搇aw without lawyers?(23). This is no longer the case. Since reforms began in 1978, China抯 legal system gained a developmental momentum. The rate of increase in both laws and lawyers is much higher than the rate of economic growth. Table 1 shows that 514 laws and regulations were promulgated between 1949 and 1978, but the number increased to 16,493 between 1979 and 1997. The National People抯 Congress promulgated seven laws between 1966 and 1978, and 327 between 1979 and 1998 (Table 2). According to the Five-Year Plan for legal reform drafted by the Eighth People抯 Congress, close to 152 laws were expected to be enacted between 1993 and 1998 (24).
In 1957, there were less than 3,000 attorneys in China. This was the year when the Chinese legal profession reached its peak, prior to the end of the Cultural Revolution (25). This figure had increased to 98,902 in 1997 (Table 3). Law firms (falu shiwusuo) developed from 0 to 8,441 in 1997. More importantly, the government now encourages the development of non-state law firms, which were eliminated and prohibited during Mao抯 time. Non-state law firms have now increased in number from 73 in 1991 to 2,957 in 1997 (Table 3). Lawyers now play an increasingly important role in Chinese society. Table 4 shows the rapid development of lawyers?business. There is no sign that this momentum will not continue in the future; the Chinese government estimates that China will have 150,000 lawyers by the end of this century (26). The Shandong provincial government has claimed that Shandong alone will have 1,000 law firms in the year 2000 up from 291 in 1994 (27).
The phenomenon of rapid legal development can be explained in the context of the Chinese government抯 search for a new political order to cope with radical socio-economic changes. Embedded in the government抯 efforts to promote legal development is such an idea that laws must be used to strengthen the state抯 ability to govern a country of a growing complexity that is resulting from its economic reforms. In other words, it is a new political order that by necessity must rule by law.
Rule by law became an imperative in China out of economic necessity. The aim of the economic reforms was to replace the planned economy with a market-oriented economy. As the planned system faded, laws came to regulate China抯 economic activities. Even though there was no privatisation, the impact of China抯 reforms on the economic order could not be under-estimated.
The shrinking state sector means that the government can no longer manage its economy that has increasingly capitalistic characteristics as it used to manage its planned economy. The fact that most of the laws passed since 1978 concern economic and commercial activities and foreign investments is therefore quite understandable (28). As shown in Table 5, economic cases that went to the people抯 courts grew from 226,600 in 1985 to 1,483,356 in 1997.
If it wants to promote economic development, the state has to loosen its political control over the population through the 搖nit?system (danwei zhidu). Furthermore, economic liberalisation has also rendered the household registration system (hukou zhidu) ineffective (29). When money became more important than political power in regulating human relations in China, when people were able to obtain daily necessities freely from the markets, they also gained the freedom to choose a better life. Today, millions of people in China, especially rural workers, are highly mobile. Indeed, by the end of the 1980s, China抯 migrant population had already totalled more than 80 million people. By the mid 1990s, this figure had passed 100 million. Large-scale migration complicated human interaction in China (30). The rural migrant population, together with the urban unemployed such as the 搊ff-post workers? (xiagang), posed a serious threat to the public order (31). It is without doubt that laws are becoming increasingly important in coping with public order crises, even though different administrative measures are still used to counter public violence. Table 4 shows that from 1985 to 1993, the number of professional lawyers increased by 371%, availability of legal consulting increased by nearly 48%, civil and economic litigation increased by 348% and criminal litigation increased by 79%. Clearly law is playing an increasingly important part in regulating relations among people, and between the ruler and the ruled.
A third, probably more important, driving force of the rapid development of China抯 legal system relates to the political legitimacy of the leadership. With the passing of the old generation of revolutionaries, the new generation of leaders must create a new base of political legitimacy. Old leaders could base their political legitimacy on their revolutionary experience, the new generation of leaders cannot. Clearly they could use the law to consolidate and strengthen their hold on power (32).
In order to increase or strengthen the leadership抯 political legitimacy, two things have to be done in the context of legal development: 1) the leadership must stabilise the public order; and 2) the state must reduce the arbitrary imposition of authority by officials.
Without doubt, providing a stable public order is the most basic function of a modern state, and laws are made in order to guarantee such an order. The link between law and order has been emphasised by almost all schools of statist theory (33). Rapid modernisation and economic growth have made the question of China抯 public order increasingly problematic. On the one hand, a phenomenon that modernisation theorists call anomie, both social and economic, would have to be tackled. Modernisation is characterised by changes in values and norms, thus causing orientational upheaval. The resultant disorientation weakens societal ties and creates psychological stress, which in turn may lead to political instability (34). With rapid development and a rise in crime, people have become increasingly insecure both psychologically and in terms of physical safety. A survey conducted at the end of the 1980s revealed this feeling about public security (Table 6). According to China抯 Ministry of Public Security, this situation is continuing partly due to an increasing crime rate (35).
On the other hand, rapid modernisation has also had a negative impact on the state抯 capacity to maintain public order. According to Samuel Huntington, rapid social and economic change 揷alls into question existing values and behaviour patterns? A result of this can be corruption, of which another result can be violence. Modernisation creates new wealth and power, and its relation to politics are as yet undefined. Corruption is common in the process of using political power to procure wealth (36). Various studies show that in China there are links between economic reforms and an increasing crime rate among officials, especially in the economic field (37). Official corruption dramatically reduced the state抯 capacity to maintain public order.
Both people抯 insecurity and crimes committed by government officials are posing a serious threat to the political legitimacy of the state. The state has initiated waves of anti-crime campaigns, including against government officials, in order to control the escalating crime rate. For the new leadership, however, more important is how to control arbitrary use of power by officials. Many senior leaders have realised that official corruption and crime, plus 搊fficial arbitrariness? can spark a public rebellion against the rule of the Party. Corruption and crime among officials were a major target of popular demonstrations in the 1989 Tiananmen protest. Anti-crime campaigns against officials would not clearly be effective in reducing official arbitrariness without a sound legal system. In 1989, China passed its first ever Administrative Litigation Law, which provided the people with an institutional means to sue officials who abused their power (38). As shown in Table 3, since that time, the number of administrative cases has increased dramatically, from 9,939 in 1989 to 35,083 in 1994. Even though the Administrative Litigation Law is far from perfect, it does provide an institutional channel for people抯 complaints and can thus increase the state抯 political legitimacy.
The need for rule by law
Even with the dramatic development that has taken place in China抯 legal system, the system is still a long way from the stage when the rule of law can be put in place. As mentioned earlier, scholars have argued that it is still uncertain whether China will even develop the rule of law, mainly, if not even more so, because most of the difficulties that China currently faces cannot be overcome in the short term.
There are cultural, organisational and structural obstacles to the adoption of a system based on the rule of law. Culturally, the rule of law seems so remote from the Chinese tradition; that is, including the 揵ig?tradition (Confucianism and Legalism), and the 搒mall?tradition (Communism). Confucianism assumes that on the one hand, the rule of law would not be a 揼ood?way to govern people, and on the other, that political elites should not be constrained by any institutional forces such as law. According to Confucius:
If you try to lead the people by regulation and order them by punishment, the people will evade these and have no sense of shame [in doing so]. If you lead them by virtue and order them through the rites, they will have a sense of shame and will correct themselves (39).
Even though for Confucius the role of rites (li) in governance was extremely important, individual virtue and public morality were even more so. Since rulers or political elites are a symbol of virtue and morality and are in a position superior to that of ordinary people, people should be ready to give up their own decision-making power to government officials. This cultural perspective coincides with the Chinese interpretation of the modern concept of democracy. Democracy or popular sovereignty, as a Western concept, came to China from a Japanese translation. Chinese interpreted 揹emocracy?as 搕o make decisions for people? (weimin zuozhu). Obviously, 搕o make decisions for people?is in accordance with Confucian elitism. The rule of law is also in contradiction with China抯 Legalist tradition. According to the Legalists, laws were made for governing people, not for keeping a check on the rulers?behaviour, and must be sufficiently draconian in order to act as a deterrency. As De Bary pointed out: 搇aw, as developed by the Legalists, was perceived as an instrument of state power, imposed on the people for their own good but not ratified by any consensual process. Law and the state were absolute in their authority. There was no sense of a need for countervailing powers, or checks and balances, such as modern constitutionalism has most often attempted to provide?(40).
The rule of law is also remote from the communist tradition in China. As Epstein pointed out: 揻ollowing the Leninist interpretation of law and state, Chinese communists have taken an instrumentalist approach to law?(41). Law and the state are nothing but the coercive expression of economic power enjoyed by the ruling class. In the Chinese socialist state, as long as classes exist, law could only reflect the will of the Communist Party, the vanguard class. In this regard, law is taken as 揳 tool of state administration?(42). Even though Chinese legal circles began to shift the emphasis from the class nature of law to the social nature (shehui xing) of law, notion of law as a tool still dominates many people抯 way of thinking. For example, why the Chinese Communist Party should be subordinate to the Constitutional is still questioned because according to some: 搕he CCP is the state抯 leading political party, and it exercises control over the NPC (National People抯 Congress) in many ways. Its activities reach beyond the realm of the state system, and its authority is therefore greater than that of the NPC. The NPC is simply unable to conduct constitutional supervision over the CCP?(43).
A second difficulty of the rule of law is rooted in the organisational structure of the Chinese state relates to the above-mentioned CCP ideology which emphasises the supremacy of the CCP and its state. Western scholars report that post-Mao reforms have led to the erosion of Communist Party抯 control over lawmaking. According to Murray Scott Tanner, the lawmaking process has become so complex that CCP officials have tended to become less involved in the details of drafting laws and regulations, and the Politburo can neither diminish confusion on policy nor monopolise lawmaking. The NPC has begun to exercise something more than a 搑ubber-stamp?function and its reviews of proposed legislation are no longer perfunctory or a simple public show of socialist democracy (44).
It is true that power over lawmaking tends to be pluralised. But the weakening of the CCP抯 power over lawmaking does not necessarily mean that the CCP is under the control of law, rather the opposite is true.
Chinese people still feel that the Party抯 power is still untamable. A recent report by the People抯 University stated that the NPC has the rights to revise and rescind any laws or legislations made by other state organs which are in conflict with those made by the NPC. However, up to now, the NPC has not revised or rescinded any single piece of law or legislation. The Party or other government organs appear to be more powerful than the NPC in that the NPC can only persuade them to change and revise the laws and legislation that they have made (45).
According to Jiang Ping, former vice-president of the Law Committee of the National People抯 Congress, lawmakers still live under the shadow of the CCP, and a major difficulty facing Chinese legal reform is 搕he contradiction between the country抯 legal and political structures? For example:
Under the Constitution, budgets drafted by the State Council are to be approved by the NPC, the State Council has frequently broken ceilings imposed on the budget without obtaining prior consent from the NPC. In the draft Supervision Law, the powers of the NPC would have been shored up against the executive organs. This Law would have given the NPC the power to review the performance of China抯 executive organs. However, it has never progressed beyond the status of a draft (46).
According to Jiang, the CCP抯 power is also dominant in other areas of lawmaking such as laws on the freedom of speech and the press, the role of the judiciary, and the representation of the CCP in the Chinese economy.
The difficulty of a transition from rule by law to rule of law is also structural. This can be understood in the context of the relationship between the state and national development. In a developing country like China, the state is not only a co-ordinator of different interests; it is also responsible for providing a political order and facilitating socio-economic development from above. The state is thus in command of socio-economic change and political order. As a matter of fact, the rise of the developmental state has been the most important factor in China抯 rapid economic growth (47). As discussed before, most laws made in post-Mao China are on economic activities, so laws have been used by the state to promote economic development. This implies that the executive organ must be playing a more important role in lawmaking than any other state organ. As shown in Table 2, the State Council promulgated 750 regulations between 1979 and 1997, compared to the promulgation of 327 by the National People抯 Congress in the same period.
State domination of society makes developing the rule of law difficult. In other words, the developmental nature of the state is in conflict with the nature of the rule of law. The rule of law requires the ruler to obey laws as do the ruled. But development and political order require the state to rule by law to impose its own 搑ational order?on society. State domination of society also holds back the development of civil society and forces that are independent of the state. Without strong demands and pressure from society, the state is unwilling to make laws that keep itself under control (48).
This, therefore, is China抯 dilemma in developing the rule of law. All of cultural, organisational and structural factors mentioned above hinder the development of a high degree of rights-awareness. Chinese scholars often complain that people are so unaware of their rights that they are unable to prevent the violation of these rights by officials. Consequently, the rule of law is hard to adopt (49). A nation-wide survey shows the low degree of rights-awareness in the population (Table 7). Most people believe that their rights are given to them by the state or government, rather than by birth. As an empirical study showed, such a perception will make them far less likely to 搒ue?government officials unless their are seriously deprived of their interests or rights (50).
Raising the people抯 rights-awareness has been a major political task for the government. The national government has attempted through campaigns to spread awareness of the law (pufa yundong) and raise citizens?awareness of their rights. The government and its organizations have also held seminars and lectures on law as shown in Table 8. That some degree of control is exercised by citizens over officials?behaviour would certainly have a positive impact on the legitimacy of the state. The state抯 campaigns to popularise laws among its citizens has had a significant effect on people抯 rights-awareness. Table 9 shows that 80% of respondents believe that they gained an idea of their legal rights from pufa yundong study groups that they took part in.
From rule by law to rule of law
Will China eventually become a country based on a system of a rule of law? This article argues that the issue cannot be understood simply from a legal perspective per se, but needs to be examined in a broader socio-economic context. Without doubt, China is increasingly becoming a country that is moving towards being ruled by law. The state抯 揺conomic growth first?principle requires legal development. Laws can promote socio-economic development by providing a new institutional framework. The laws can be used to manage socio-economic chaos resulting from rapid social and economic development, and in turn they can help reduce arbitrary use of power by officials and thus strengthen the political legitimacy of the state.
In terms of the rule of law, however, China will encounter enormous difficulties. These are not only due to the fact that law is used by the Party-state as a tool, they are also cultural, organisational and structural. As discussed above, the state promotes legal development on the one hand, and hinders the country抯 progress towards the rule of law on the other. Enormous obstacles, such as the Party-state抯 position in China抯 political hierarchy, state domination of society, and economic priorities, discourage the adoption of the rule of law. Therefore, whether China will become a country based on a system governed by the rule of law not only depends on the development and improvement of China抯 legal system per se, more importantly, it depends on further changes in China抯 socio-economic structure.
However, the still numerous difficulties and challenges do not mean that the rule of law is an impossibility in China. Law is a two-edged sword. It can be used by the state to govern people, but it can also be used by the people to restrain the state. An example is the Administrative Litigation Law. The law aims to reduce officials?arbitrary exercise of power and thus to increase or consolidate the legitimacy of the state. It also empower ordinary citizens to defend themselves against the intrusion of state power. The state抯 campaigns to popularise laws has also raised people抯 awareness of their rights. As people抯 knowledge and awareness of their natural rights increase, so they will be more in a position to challenge state power.
Rapid socio-economic progress will necessarily change China抯 political structure. European history has shown that the rule of law did not arrive overnight. The development of the rule of law ran parallel with the development of democracy. Central to the rule of law is how state power can be tamed. Historical analysis of European democracies suggests the importance of an increasingly powerful middle-class. This emerging social group successfully tamed the monarchical state, challenging the aristocratic claim of government as a privilege of birth and slowly replacing it with the principle of government as a natural domain of the 搘ealthy commoners? Later, a rising and organised working class came to challenge the power of the bourgeois state and established the notion of equal citizenship before the law (51).
China is unlikely to repeat what happened in Europe, but it is true that rapid socio-economic development has introduced changes in the relations between the state and society (52). Even so, state power is still overwhelmingly dominant. However, with the rise of social forces, the state will have to adjust its own power structure to gradually accommodate social reality. This is especially true in rural China. With the establishment of the rural election system, great changes have come to rural power structure. The rule of law is becoming more and more a reality (53). Therefore, the difficulties of the transition from the rule by law to the rule of law are not insurmountable. With a changing socio-economic structure, the institutional foundation will be laid for the rule of law.?
* In preparing this paper, I received invaluable assistance from many people. Thanks go to Professors Wang Gungwu, John Wong, and Jiang Ping for their comments on earlier versions of this paper. Thanks also go to Dr. Qiu Zeqi of Peking University for his help in providing key information required for this paper and my colleagues Cui Wei and Wong Chee Kong for research assistance. The paper was presented at the second annual conference on democracy on both sides of the Taiwan Strait, 揚arty-State Transformation and Democratization at Both Sides of the Strait? February 17-18, 1998, The Fairbank Center for East Asian Research, Harvard University. I would like to thank Professor William Alford, Benjamin Schwartz and other participants for their comments on the paper.
1. Renmin ribao (People抯 Daily), March 14th 1999.
2. For a full text of Jiang Zemin抯 report delivered at the 15th National Congress of the Communist Party of China on September 12th 1997, see China Daily, September 23rd 1997.
3. For instance, Franz Michael, 揕aw: A Tool of Power? in Wu Yuan-li et al., Human Rights in the People抯 Republic of China, Boulder (Co.), Westview Press, 1988, pp. 33-55; Richard Baum, 搼Modernization?and Legal Reform in Post-Mao China: the Rebirth of Socialist Legality? Studies in Comparative Communism, Vol. XIX, No. 2, Summer 1986, pp. 69-103; and Edward J. Epstein, 揕aw and Legitimation in Post-Mao China? in Pitman B. Potter ed., Domestic Law Reforms in Post-Mao China, Armonk (NY.), M. E. Sharpe, 1994, pp. 19-55.
4. For a discussion of different opinions over China抯 constitutional reforms, see R. Randle Edwards et al., 揝ymposium on China and Constitutionalism: Introduction? Journal of Chinese Law, Vol. 9, No. 1, Spring 1995, pp. 1-6.
5. For example, Ronald C. Keith, China抯 Struggle for the Rule of Law, London, St. Martin抯 Press, 1994; and Henry S. Rowen, 揟he Short March? The National Interest, No. 45, Fall 1996, pp. 61-70.
6. For a comprehensive survey of various concepts that Chinese law scholars used during the reform era, see Wang Yongfei and Zhang Guicheng eds., Zhongguo fal黿ue yanjiu zongshu yu pingjia (A comprehensive survey and evaluation of the studies of legal theories in China), Peking, Zhongguo Zhengfa daxue chubanshe, 1992.
7. For example, Potter ed., Domestic Law Reforms in Post-Mao China, op. cit.; China Quarterly, 揅hina抯 Legal Reform? special issue, No. 141, March 1995, and 揊ocus on Law and Politics in China? No. 138, June 1994; and Wang Jingshan, The Role of Law in Contemporary China: Theory and Practice, Ph. D thesis, Department of Government, Cornell University, 1988.
8. Henry Campbell Black et al., Black抯 Law Dictionary, St. Paul (Minn.), West Publishing Co., 1990, p. 1332.
9. Friedrich A. Hayek, The Road to Serfdom, The University of Chicago Press, 1994, p. 80.
10. Ibid., Chapter 6.
11. Franz Michael, 揕aw: A Tool of Power? op. cit., p. 33.
12. Baum, 揗odernization and Legal Reform in Post-Mao China? op. cit., pp. 70-2.
13. Epstein, 揕aw and Legitimation in Post-Mao China? op. cit., p. 19.
14. 揅ommuniqu?of the Third Plenum of the Eleventh Central Committee of the Communist Party of China? December 22nd 1978, Peking Review, No. 52, December 29th 1978, p. 14.
15. Deng Xiaoping, 揈mancipate the Mind, Seek Truth from Facts and Unite as One in Looking to the Future? December 13th 1978, in Deng, Selected Works of Deng Xiaoping (1975-1982), Peking, Foreign Language Press, 1984, p. 158.
16. For example, Wang Guiwu, 揕uetan renzhi yu fazhi di tongyi? (An brief discussion of the unity of the rule of law and the rule of men); and Han Yanlong, 揝hilun renzhi yu fazhi di tongyi? (On the unity of the rule of law and the rule of men), both in Fazhi yu renzhi wenti taolun ji (Selected works of the debates on the rule of law and the rule of men), Peking, Qunzhong chubanshe, 1980. Also see Carlos Wing-hung Lo, China抯 Legal Awakening: Legal Theory and Criminal Justice in Deng抯 China, Hong Kong, Hong Kong University Press, 1995, Chapter three.
17. For example, Wang and Zhang eds., Zhongguo fal黿ue yanjiu, op. cit., chapter 16.
18. Lo, Legal Awakening, op. cit., p. 48.
19. Deng Xiaoping, 揙n the Reform of the System of Party and State Leadership? in Deng, Selected Works of Deng Xiaoping (1975-1982), op. cit., p. 316.
20. For example, Li Buyun, Fazhi, minzhu, ziyou (Legal system, democracy and freedom), Chengdu, Sichuan renmin chubanshe, 1985, p. 1. Also see Wang & Zhang, eds., Zhongguo fal黿ue, op. cit.
21. Li Buyun, Fazhi? ibid., p. 154.
22. Deng Xiaoping, Fundamental Issues in China Today, Peking, Foreign Languages Press, 1987, p. 146.
23. Victor H. Li, Law Without Lawyers: A Comparative View of Law in China and the United States, Boulder (Co.), Westview Press, 1978.
24. Jiang Ping, 揅hinese Legal Reform: Achievements, Problems and Prospects? Journal of Chinese Law, Vol. 9, No. 1, Spring 1995, p. 67.
25. Chen Weidong and Wang Jiafu, Zhongguo lushi xue (Studies of lawyers in China), Peking, Zhongguo renmin daxue chubanshe, 1990, p. 46.
26. Xia Yong ed., Zuoxiang quanli de shidai (Towards the Age of Rights), Peking, Zhongguo zhengfa daxue chubanshe, 1995, p. 170.
27. Zhongguo lushi bao (China lawyers?news), August 23rd 1994.
28. See James V. Feinerman, 揕egal Institution, Administrative Device, or Foreign Import: The Roles of Contract in the People抯 Republic of China? in Potter ed., op. cit., pp. 225-246; Pitman B. Potter, 揊oreign Investment Law in the People抯 Republic of China: Dilemma of State Control? The China Quarterly, No. 141, March 1995, pp. 155-184; and Keith, China抯 Struggle for the Rule of Law, op. cit., chapter 5.
29. On the household registration system, see, Cheng Tiejun, 揨hongguo hukou zhidu de xianzhuang yu weilai? (The current situation of China抯 household registration system and its future), in Li Shaomin ed., Zhongguo dalu de shehui zhengzhi jingji (Society, politics and economy in mainland China), Taipei, Guiguan tushu, 1992, pp. 393-422.
30. On migrating population and its impact, see Li Mengbai, Hu Xin & al., eds., Liudong renkou dui da chengshi de yingxiang jiqi duice (The impact of migrating population on large cities and countermeasures), Peking, Jingji ribao chubanshe, 1991; and Ma Xia et al. eds., Zhongguo chengshi renkou qianyi (Migration of Chinese population), Peking, Zhongguo renkou chubanshe, 1994. In English, see Lincoln H. Day and Ma Xia eds., Migration and Urbanization in China, Armonk (NY.), M. E. Sharpe, 1994; and Cheng Li, 揝urplus Rural Laborers and Internal Migration in China: Current Status and Future Prospects? Asian Survey, Vol. xxxvi, No. 11, November 1996, pp. 1122-1145.
31. Greg Austin, 揟he Strategic Implications of China抯 Public Order Crisis? Survival, Vol. 37, No. 2, Summer 1995, pp. 7-23.
32. This coincided with various debates in the Chinese legal circles on the Weberian distinction between personal authority and legal-rational authority. Since the early 1980s, Max Weber抯 discussion of modernisation and law, especially the transition from personally-based authority to legal authority, has become increasingly attractive to the Chinese. See discussion in Keith, China抯 Struggle for the Rule of Law, op. cit.
33. For example, see Martin Carnoy, The State and Political Theory, Princeton (NJ.), Princeton University Press, 1984.
34. For a classical discussion of this regard, see Emile Durkheim, The Division of Labor in Society, New York, Free Press, 1969. On Durkheim, see Robert Nisbet, Sociology of Emile Durkheim, New York, Oxford University Press, 1973. See also David Apter, The Politics of Modernization, Chicago, Chicago University Press, 1965; and Lucian W. Pye, Politics, Personality and National Building, New Haven, Yale University Press, 1963.
35. Chen Baoshu and Tang Junqi, ?993-1994 nian shehui zhian xingshi fenxi yu yuce? (An analysis and forecast of public security 1993-1994), in Jiang Liu et al., 1993-1994 nian Zhongguo: shehui xingshi fenxi yu yuce (An analysis and forecast of social developments in China 1993-1994), Peking, Zhongguo shehui kexue chubanshe, 1994, pp. 151-161; and Liu Renwen and Tang Junqi, ?996-1997 Zhongguo shehui zhian xingshi de fenxi yu yuce? (An analysis and forecast of China抯 public security 1996-1997), in Jiang Liu et al., 1996-1997 nian Zhongguo shehui xingshi fenxi yu yuce (An analysis and forecast of social development in China 1996-1997), Peking, Zhongguo shehui kexue chubanshe, 1997, pp. 162-172
36. Samuel Huntington, Political Order in Changing Societies, New Haven, Yale University Press, 1968, pp. 59-69.
37. For example, Alan P. L. Liu, 揟he Politics of Corruption in the People抯 Republic of China,?American Political Science Review, Vol. 77, No. 3, September 1983, pp. 602-23; and James T. Myers, 揅hina: Modernization and 慤nhealthy Tendencies挃, Comparative Politics, January 1989, pp. 193-213.
38. Renmin ribao, April 10th 1989, p. 2. For a discussion, see Pitman B. Potter, 揟he Administrative Litigation Law of the PRC: Judicial Review and Bureaucratic Reform? in Potter ed., Domestic Law Reforms, op. cit., pp. 270-304. Also see Song Bing, 揅itizens Suing the Government: A New Phenomenon in China?? IEAPE Background Brief, No. 24, February 24th 1992.
39. Confucius, Analects, 2:3. For the translation quoted here see Theodore De Bary, 揟he 慍onstitutional Tradition?in China? Journal of Chinese Law, Vol. 9, No. 1, Spring 1995, p. 78.
40. Ibid., p. 11.
41. Epstein, 揕aw and Legitimation in Post-Mao China,?op. cit., p. 22.
42. Willian P. Alford, 揝eek Truth from Facts桬specially when They Are Unpleasant: America抯 Understanding of China抯 Efforts at law Reform? Pacific Basin Law Journal, Vol. 8, 1990, p. 182.
43. Cai Dingjian, 揅onstitutional Supervision and Interpretation in the People抯 Republic of China? Journal of Chinese Law, Vol. 9, No. 2, Fall 1995, p. 228. The article (pp. 219-245) discussed different points of view on constitutional supervision over the Chinese Communist Party.
44. Murray Scott Tanner, 揙rganizations and Politics in China抯 Post-Mao Law-Making System? in Potter, Domestic Law Reforms in Post-Mao China, op. cit., pp. 56-96; 揟he Erosion of Communist Party Control over Lawmaking in China? The China Quarterly, No. 138, June 1994, pp. 381-403; and 揌ow a Bill Becomes a Law in China: Stages and Processes in Lawmaking? The China Quarterly, No. 141, March 1995, pp. 39-64. For a more detailed discussion, see Tanner, The Politics of Lawmaking in Post-Mao China, unpublished Ph. D. thesis, Department of Political Science, The University of Michigan, 1991.
45. Zheng Hangsheng ed., Cong chuantong dao xiandai kuaisu zhuanxing guocheng de Zhongguo shehui (Chinese society in the process of rapid transition from tradition to modernity), Peking, Zhonguo renmin daxue chubanshe, 1996, p. 57.
46. Jiang Ping, 揅hinese Legal Reform: Achievements, Problems and Prospects? Journal of Chinese Law, Vol. 9, no 1 Spring 1995, p. 72.
47. See Gordon White ed., The Chinese State in the Era of Economic Reform: The Road to Crisis, London, The Macmillan Press, 1992; White ed., Developmental States in East Asia, London, The Macmillan Press, 1988. Also see Zheng Yongnian, Institutional Change, Local Developmentalism, and Economic Growth: The Making of Semi-Federalism in China Reform, Ph. D thesis, Department of Politics, Princeton University, 1995.
48. For a discussion on state-domination over society, see Atul Kohli, 揇emocracy and Development? in John P. Lewis and Valeriana Kallab eds., Development Strategies Reconsidered, New Brunswick, Transaction, 1986, pp. 153-82; and Zheng Yongnian, 揇evelopment and Democracy: Are They Compatible in China?? Political Science Quarterly, Vol. 109, No. 2, Summer 1994, pp. 235-59.
49. For example, Gao Hongjun, 揨honguo gongmin quanli yishi de yanjin? (The development of rights-awareness among Chinese citizens), in Xia Yong ed., Zuoxiang quanli de shidai (An age toward rights), Peking, Zhongguo zhengfa daxue chubanshe, 1995, pp. 70-134.
50. Jiang Ping, 揦ingzheng guanli xiangduiren de quanli jiuji? (Enforcement mechanisms for the citizens?rights against unlawful administrative actions), in Xia Yong ed., ibid., pp. 595-658.
51. For example, see Barrington Moore, Jr., Social Origins of Dictatorship and Democracy, Boston, Beacon, 1966, especially chapter 7; Reinhard Bendix, Nation-Building and Citizenship, Berkeley, University of California Press, 1977, especially chapter 3; and T. H. Marshall, Class, Citizenship and Social Development, New York, Doubleday, 1964.
52. For example, Brian Hook ed., The Individual and the State in China, Oxford, Oxford University Press, 1996; Gorden White, Jude Howell and Shang Xiaoyuan, In Search of Civil Society: Market Reform and Social Change in Contemporary China, Oxford, Oxford University Press, 1996; and Thomas B. Gold, 揟he Resurgence of Civil Society in China? Journal of Democracy, Vol. 1, No. 1, Winter 1990, pp. 18-31.
53. On rural democracy, see Jean Oi, 揈conomic Development, Stability and Democratic Village Self-Governance? in Maurice Brosseau, Suzanne Pepper and Tsang Shu-ki, eds., China Review 1996, Hong Kong, The Chinese University Press, 1996, pp. 125-35; Kevin O払rien, 揑mplementing Political Reform in China抯 Village? and Susan Lawrence, 揤illage Representative Assemblies: Democracy, Chinese Style? both in Australian Journal of Chinese Affairs, No. 32, July 1994, pp.33-60 and 61-70, respectively. Also see Kevin J. O払rien, 揜ightful Resistance? World Politics, No. 49, 1996, pp. 31-55.