The evolution of rule of law in China: the role of law
in historical context
In this chapter, I present a brief and necessarily simplified survey of China's legal theories and systems from the pre-Han era to the beginning of the reform era in 1978. 1 The purpose is threefold. First, for many rule of law means a Liberal Democratic rule of law. 2 It is difficult for many modern Westerners in particular to imagine rule of law being embedded in a nonliberal context, and as a result, for law to play a different role in society, such as state-strengthening rather than the protection of individual rights. Yet the logic and appeal of the Statist Socialist, Neoauthoritarian, and Communitarian models are rooted in China's own traditions. By exploring the historical, political, and philosophical backdrop against which reforms are occurring, it is easier to understand how rule of law in China could develop along a different path, and to appreciate why it is unlikely that reforms are likely to lead to a Liberal Democratic rule of law.
Second, some skeptics in China argue that rule of law is the historical product of modern Western capitalist democracies at odds with China's own traditions. 3 Thus, they suggest, it cannot be transplanted to China. At minimum, rule of law will need to be adapted to China's own circumstances. It must develop a rule of law with Chinese characteristics that takes advantage of China's own native resources. To make sense of these arguments requires some understanding of China's legal traditions. Only then can one begin to assess what traditional native resources are available to reformers – and what obstacles they are likely to encounter in trying to establish rule of law given China's past.
Finally, even a cursory review of the Imperial and Mao era legal systems will suffice to demonstrate just how remarkable China's legal transformation has been. Notwithstanding the many shortcomings in the legal system, dramatic progress has been made in creating a viable legal system that increasingly meets the standards of a thin rule of law.