Rule of law and its critics
Rule of law is not without its critics. Skeptics claim that the efforts to promote rule of law in China are likely to fail, just as the earlier attempts of the law and development movement in the 1960s and ′70s to export rule of law to developing states failed. Some PRC scholars caution that the rule-of-law movement has been largely a top-down effort and thus is not likely to be supported when legal reforms begin seriously to restrict the authority of the ruling regime. They also worry that as a product of modern Western states, rule of law cannot be transplanted to China, or that implementing rule of law will disrupt the existing social order and hence may be too costly. Critiques of rule of law from leftists in China emphasize the class nature of law, while Critical Legal Studies scholars (CRITS) abroad contend that law is a mask for oppression and serves the interests of the ruling elite. Even liberal reformers worry that in the absence of democracy and pluralistic forms of political participation, implementing rule of law will serve authoritarian ends and bolster the legitimacy of the Party. Others, as will be discussed in Chapter 10, question whether China needs rule of law and in particular whether rule of law is necessary for economic development.
In this chapter, I examine the critics' arguments and suggest that while implementing rule of law is not an answer to all of China's social, political, economic, or even legal problems, on balance it represents a major step forward relative to the status quo. First, however, I take up a number of theoretical issues that have led some legal philosophers to question the utility of rule of law as an analytical concept and some commentators to dismiss rule of law as a meaningless slogan. For instance, can the minimal conditions for rule of law be sufficiently specified to be useful? Should China's legal system at this point be described as rule by law, as in transition to rule of law, or as an imperfect rule of law? How do we know that the goal of legal reforms in China is rule of law as opposed to