The Rule of Law in China

By Orts, Eric W. | Vanderbilt Journal of Transnational Law, January 2001 | Go to article overview

The Rule of Law in China


Orts, Eric W., Vanderbilt Journal of Transnational Law


ABSTRACT

This Article explores contemporary meanings of the rule of law with a focus on its meaning in Chinese history and tradition, as well as Chinese legal institutions. Part II considers the concept of law in China, from early understandings in Confucianism and Legalism to more recent treatments in Chinese Communism. It also reviews efforts that the People's Republic of China has made in recent decades to strengthen its legal institutions. Part III begins with a discussion of the Western jurisprudential idea of the rule of law and suggests a distinction between two basic understandings: (1) rule by law as an instrument of government, and (2) the rule of law as a normative and political theory. The Article proceeds to make a controversial claim that Chinese development of the rule of law may be separated from the development of Western-style democracy, at least in the present historical situation. The Article concludes with several recommendations for promoting the rule of law as a normative and political system in China.

   [T]he political and civil laws of each nation must be proper for the people
   for whom they are made, so much so that it is a very great accident if
   those of one nation can fit another.... [The laws] must agree ... with the
   customs [of the people].(1) -- Montesquieu

   For governing the people there is no permanent principle save that it is
   the laws and nothing else which determine the government. Let the laws roll
   with the times and there will be good government.... But let the times
   shift without any alteration of the laws and there will be disorder.(2) --
   Han Fei

I. INTRODUCTION

Establishing the rule of law in China has become a priority for its government.(3) Deng Xiaoping and his successors have recognized the folly of the Maoist period's denigration of law and lawyers, especially the extraordinarily destructive Cultural Revolution which decimated the legal system as it then existed.(4) The current generation of Chinese rulers has promoted "the rule of law" to the extent of adopting a constitutional amendment in 1999 to enshrine the principle.(5) President Jiang Zemin now proclaims that the Chinese Communist Party is fully committed to "govern the country according to law."(6)

In part, this reform effort corresponds with China's expected entry into the World Trade Organization (WTO), which requires an internal legal system administered in a "uniform, impartial, and reasonable manner."(7) Establishing the rule of law in China thus coincides with the notion that economic modernization requires "getting on track with the international community" (gen gouji jiegui).(8) At the same time, the advocacy of new laws and an improved legal system to enforce them is intended to advance an indigenous "market economy with Chinese characteristics,"(9) which seems to be an evolving amalgam of socialist one-party government and commercial markets.(10)

Recently in the United States, both Democratic and Republican political leaders have invoked promotion of the rule of law as an argument in favor of permanent normal trade relations with China.(11) The general argument is that increased trade with China will not only encourage further development of its legal system but also will lead to positive political change.(12) In other words, the claim is that "promoting the rule of law advances both profits and principles."(13) This argument helped to win a close debate in Congress on the issue. President Clinton declared the vote of the House of Representatives in May 2000 in favor of normal trade relations to be a step toward "a China that is more open to our products and more respectful of the rule of law at home and abroad."(14) The Senate approved permanent trade relations with China in September 2000,(15) and the President signed into law the China Trade Relations Act of 2000 in October.(16) The George W. Bush Administration has confirmed that it will continue a policy of pressing China to follow "the rule of law. …

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