Retreat of the Party and the state
This chapter examines the theoretical relationship between single party socialism and rule of law as well as the actual role of the Party in legal reforms and the daily operation of the legal system. I argue that although single party socialism is not compatible with a Liberal Democratic or Communitarian rule of law, it is theoretically compatible with a Statist Socialist or Neoauthoritarian rule of law. 1 In practice, however, the Party, Party organs, and individual Party members often act in ways that are inconsistent with any form of rule of law. Nevertheless, the Party is only one of the obstacles to rule of law. In terms of the daily operation of the legal system, the most significant obstacles are systemic or institutional in nature. The Party plays only a limited role in the day-to-day operation of the legal system. Its role in law-making and administrative rule-making is increasingly indirect and limited to macro policy guidance and review; moreover, only rarely does the Party directly intervene in the adjudication of specific cases. Rather, the Party's main relevance to rule of law lies in its ability to promote or obstruct further institutional reforms required to implement rule of law.
The Party's role in the legal system must be understood against the backdrop of the changing role of the Party in the Chinese polity as a whole. Despite theoretical opposition from within the Party, the last twenty years have witnessed a growing separation of the Party and state in practice, to the point where references to the Party-state are often misleading and obscure as much as they reveal. 2 Notwithstanding the post-Tiananmen retreat from the official policy of separating the Party from the state and various attempts to claw back power, 3 the Party has in fact turned over – or, perhaps more accurately, been forced to turn over – much of daily governance to the usual state actors: the legislature, executive, and judiciary. The retreat of the Party has resulted in the transfer of power from the Party both to the state and to society.