China and the Rule of Law: Part I 

Randall PEERENBOOM

Perspectives, Vol. 1, No. 5

(Author's Note: This two-part essay excerpts and summarizes some of the main points from two longer articles, "Ruling the Country in Accordance with Law: Reflections on the Rule and Role of Law in Contemporary China," Cultural Dynamics 11:3 (1999): 315-351, and a revised and expanded version of that article, which is forthcoming in Chinese in Zhongguo shehui zhuanxing shiqi de falu fazhan - zhongmei xuezhe lunwenji (Falu Chubanshe, 2000). These two articles, which contain full citations and footnotes, are available by emailing peerenbo@law.ucla.edu.)

By all accounts, China's commitment to a law-based order has deepened in the past two decades since the ascendance of Deng Xiaoping and the launching of China's reform and opening policies. The establishment of a socialist rule of law state in which the government must act in accordance with law has been endorsed by Jiang Zemin and the Chinese Communist Party (CCP) for several years and was incorporated via amendment into the Constitution in 1999. At the same time, it is widely acknowledged both at home and abroad that China has encountered numerous problems in the realization of the rule of law. Many more skeptical commentators doubt that China is committed to establishing the rule of law and question whether a "socialist rule of law state" may be equated with the rule of law.

This two-part article examines the rule of law in China. Part I distinguishes between substantive or thick theories of rule of law and formal or thin theories of rule of law, and explains why a thin theory of the rule of law is a more appropriate standard against which we should judge China's efforts to implement the rule of law. Part II (to be published in the June issue of "Perspectives") discusses the prospect of rule of law in China.

While much of the debate about legal reform in China takes rule of law as the benchmark, there seems to be little agreement as to what rule of law is or how to measure it. Not only is there is no accepted definition of rule of law, there is not even agreement on how to go about defining it.

Some favor a substantive understanding of rule of law that incorporates elements of political morality such as particular economic arrangements, forms of government, or conceptions of human rights. These thick theories of the rule of law can be further subdivided according to the particular substantive elements that are favored.

Thus, one could distinguish between a liberal and a socialist rule of law. Liberals would incorporate free-market capitalism (subject to qualifications that would allow various degrees of "legitimate" government regulation of the market), multiparty democracy in which citizens may choose their representatives at all levels of government, and a liberal interpretation of human rights that gives priority to first generation civil and political rights over second and third generation economic, social, cultural and collective or group rights.

A socialist rule of law would incorporate a socialist form of economy, which might be a centrally planned economy with all or most assets publicly owned, or in the case of China today, an increasingly market-based economy but one in which public ownership still plays a somewhat larger role than in other such economies; a non-democratic system in which the Party plays a leading role; and an interpretation of rights that emphasizes stability, collective rights over individual rights and sustenance as the basic right as opposed to civil and political rights.

Still another version of a non-liberal thick theory might be called the "Asian values" version built on market capitalism, perhaps with a somewhat greater degree of government intervention than in the liberal version; some genuine form of multiparty democracy in which citizens choose their representatives at all levels of government; plus an "Asian values" interpretation of rights that gives relatively greater weight to the interests of the majority and collective rights over individual civil and political rights.

In contrast to thick or substantive theories of the rule of law, thin theories emphasize the formal or instrumental aspects of a legal system - those features that any legal system allegedly must possess to function effectively as a system of laws, regardless of whether the legal system is part of a democratic or non-democratic society, capitalist or socialist, liberal or theocratic, and indeed regardless of whether the legal system is a good one or an evil one. As Joseph Raz notes, "If rule of law is the rule of the good law then to explain its nature is to propound a complete social philosophy. But if so the term lacks any useful function. We have no need to be converted to the rule of law just in order to believe that good should triumph. A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies."

Typical candidates for the more limited normative purposes served by thin theories of rule of law include: preventing anarchy and Hobbesian war of all against all; securing government in accordance with law - rule of law as opposed to rule of man - by limiting at least some forms of arbitrariness on the part of the government; enhancing predictability, which allows people to plan their affairs and hence promotes both individual freedom and economic development; providing a fair mechanism for the resolution of disputes; and bolstering the legitimacy of the ruling regime. Perhaps the most formal and substantively minimal basis for rule of law is that suggested by Raz, who takes as his departure point the 'basic intuition' that law must be capable of guiding behavior.

Although proponents of a robust substantive theory of rule of law may take issue with all that is left out of thin theories, it is important to appreciate just how much can be derived from a minimal starting point such as the ability of law to guide behavior. To serve that purpose, laws must exhibit certain formal characteristics. They must be publicly promulgated (open and transparent), prospective, consistent and relatively clear and stable. In addition, they must be implemented: if laws are not enforced in practice, people will quickly realize that there is no need to follow the law and adjust their behavior accordingly.

A variety of institutions and processes are also required. The promulgation of law assumes a legislature and the government machinery necessary to make the laws publicly available. It also assumes rules for making laws. Congruence of laws on the books and actual practice assumes institutions for implementing and enforcing laws. While informal means of enforcing laws may be possible in some contexts, modern societies must also rely on formal means such as courts and administrative bodies. Furthermore, if the law is to guide behavior, laws must be applied and enforced in a reasonable way that does not completely defeat people's expectations. This implies normative and practical limits on the decision-makers who interpret and apply the laws and principles of due process or natural justice such as access to impartial tribunals, a chance to present evidence and rules of evidence.

Proponents of a formal or instrumental conception of the rule of law point to several advantages of a thin theory over a thick substantive one. First, thin theories of rule of law at minimum promise some degree of predictability and some limitation on arbitrariness. By narrowing the focus, a thin theory highlights the importance of these and other rule of law virtues.

Second, a thin theory allows for focused and productive discussion of rule of law among persons of different political persuasions. As Robert Summers notes, "[a] substantive theory necessarily ranges over highly diverse subject matter, and thus sprawls in its application. On a full fledged substantive theory, arguments and criticisms purportedly in the name of the 'rule of law' tend to be arguments and criticisms in the name of too many different things at once." Being able to narrow the focus of discussion and avoid getting bogged down in larger issues of political morality is particularly important in cross-cultural dialogue between for example, American liberals and Chinese socialists or Muslim fundamentalists.

Third, as a practical matter, much of the moral force behind the rule of law and its enduring importance as a political ideal today is predicated on the ability to use rule of law as a benchmark to condemn or praise particular rules, decisions, practices and legal systems. To the extent that there is common ground and agreement on at least some features of a thin theory of rule of law, many of the theoretical and practical problems associated with normative valuations in a pluralist society and world are avoided. Criticisms are more likely to be taken seriously and result in actual changes given a shared understanding of rule of law.

Some PRC scholars have suggested an additional reason for emphasizing a thin or procedural rule of law over a substantive rule of law for China at this time. China has historically favored substantive justice over procedural justice. In the clash between morals and law, morals have often won out. The tendency has been to favor particular justice at the expense of generality and rationality. While strong normative arguments may be made in favor of a particularized substantive justice, in practice this emphasis gives decision-makers considerable discretion and makes the process more subjective. To correct for the tendency toward substantive justice, the legal system arguably should now stress the more rule-oriented procedural aspects of the rule of the law.

Critics of thin theories raise a number of objections. One critique centers on definitional issues. A fully developed thin theory would need to include among other things an account of the values, purposes or ends of rule of law; the requisite characteristics of laws; the institutional arrangements needed to give effect to rule of law; and a theory of interpretation. Clearly, there is plenty of room for disagreement. For example, several of the characteristics of laws are vague - what precisely is meant by consistent? Moreover, all of the required traits admit of degrees and exceptions, and at times the various elements conflict.

A thin theory must also address a number of other controversial (and in some cases unsolvable) issues: Is separation of powers necessary (and what exactly does it entail)? Is judicial review necessary? A free press? An independent legal profession? While it is generally agreed that an independent judiciary is required, how independent should the judiciary be?

A full-blown thin theory of rule of law would attempt to resolve these and other issues based on limited formal or substantive content and the values that flow from rule of law so conceived. But the rule of law is but one component of the larger legal and political order. What is the relation then of rule of law to the political system as a whole. When are the values gained by adherence to rule of law to give way to other values? This is not a question that can be answered internally from within the walls of a thin theory of rule of law. At the end of the day, the question turns on larger issues of political morality and a vision of a just society, whether liberal, libertarian, socialist or communitarian.

A related concern of the critics is that a thin theory lacks a sufficiently robust normative basis to ensure that law will not be used instrumentally by authoritarian or Fascist regimes for their own ends. This is an important criticism that cannot be dismissed lightly. It is probably the main reason why most people prefer thick theories of rule of law. There is no gainsaying the fact that the instrumental aspects of the rule of law may enhance the efficiency of authoritarian governments and bolster their legitimacy. It is possible that rule of law will serve authoritarian ends in China. Some PRC scholars have argued that rule of law will promote economic development, which in turn will strengthen the government both fiscally and in terms of legitimacy. A stronger government may be better positioned to resist meaningful political reforms. On the other hand, an arguably more likely result is that rule of law will be a force for liberalization and come to impose restraints on the rulers, as in Taiwan.

In any event, the dangers of evil empires misusing law for their own despicable ends should not be overstated. First, even a thin rule of law differs from instrumentalist "rule by law" in that rule of law imposes meaningful restraints on state and government officials. In a rule of law state, law is not just a tool to be used by the ruling regime to control the people or promote the interests of the privileged few. Government leaders and officials are also bound by the law. One of the main purposes of the rule of law is to limit the arbitrary acts of the government and impose meaningful constraints on the ruling elite. The potential positive value of even a thin rule of law should not be discounted. Rule of law imposes restraints on the state and provides the basis for challenges by citizens of government arbitrariness.

Second, rule of law is rarely if ever the cause of authoritarianism. Authoritarian governments would be authoritarian even in the absence of legal reforms. Where legal rules are applied with principled consistency to both the state and its citizens, as required by the rule of law, they generally restrain rather than expand the arbitrary exercise of state power.

Third, because thin theories of rule of law impose restraints on rulers that tyrants and dictators are not likely to tolerate, except perhaps for short term strategic reasons, rule of law abiding evil empires are likely to be few and far between. In most instances, tyrants and dictators have no need to comply with the rule of law. That such regimes are likely to be rare does not make them any less offensive, but it does suggest that we may want to base our theories of rule of law on the general case rather than the exception.

Moreover, and most importantly, in the rare case of a rule of law compliant authoritarian government misusing law for normatively reprehensible ends, there surely are more direct and telling criticisms of the regime than that it is violating the rule of law. A dictator who commits racial or ethnic genocide, or a corrupt authoritarian leader that misuses the legal system to advance the economic interests of his family and cronies while turning a blind eye to widespread abject poverty and human suffering, surely deserves to be subject to moral censure. But to claim that they are violating the rule of law somehow misses the point. To focus on rule of law violations in the case of a latter-day Hitler or Stalin would be to focus on the wrong normative issues.

More pragmatically, diverting attention away from the primary virtues of the rule of law may lead to missed opportunities to realize concrete changes in a legal system that would significantly improve the quality of life for members of that society. Even in a relatively authoritarian state such as China, realization of the rule of law promises individuals greater protection from the arbitrary acts of the state. China's current laws and regulations often provide individuals important rights that cannot be realized because of basic thin rule of law problems like a poorly trained and undersized legal profession and a corrupt, incompetent and politically and financially dependent judiciary. Focusing on more specific issues such as the institutional changes necessary to ensure the existing rights of criminal defendants to a fair trial or the right of someone arbitrarily denied a license to challenge the decision through impartial administrative procedures may be more important than spending time and energy debating the relative merits of liberal versus Asian values or whether China needs an authoritarian or democratic government at this stage of its economic and political development. Indeed, many individuals may be more concerned about their ability to obtain consistent and fair application of laws than with larger political issues such as the right to choose their leaders. Again, this is not to deny that issues such as democracy and human rights or the normative basis for laws are important. Rather, the point is simply to suggest that while such issues should be discussed, they need not be the focus of conversation every time legal reformers meet to consider how to improve China's legal system.

Finally, in the long run, establishing a thin rule of law usually will alter the balance of power between the state, society and individuals. The establishment of a legal system with some degree of autonomy acts as a counterweight to political power and provides a basis for challenging state power. While a strong civil society is not inevitable, it is more likely in a state that implements the rule of law than one that does not. A strong civil society is arguably more likely to seek and more likely to obtain political reforms aimed at further limiting the power of authoritarian states and increasing the power of society. Thus, even if the goal is democracy and protection of human rights, it makes sense to ensure at minimum that a thin rule of law is realized.

Of course rule of law need not lead inevitably to economic development, much less to democracy and a liberal version of human rights. Rule of law is clearly not sufficient for either economic or political development. However, based on the successes and failures of the Asian countries and the attempt of Russia and Eastern European countries to create markets, it now seems that a legal system that meets the basic requirements of a thin theory of rule of law is required for sustainable development. And indeed a number of empirical studies have shown a positive correlation between the rule of law and economic growth.

Even if the rule of law were to lead to economic development in China, whether economic development and the rule of law would in turn lead to political reform and in particular the establishment of (liberal) democracy is far from certain. Early theorists such as Lipset, Rostow and Dahl argued that economic development would lead to political development. Unfortunately, empirical studies have produced widely different conclusions. Burkhart and Lewis-Beck claim that while economic development causes democracy, democracy is not necessarily conducive to development. Ronald Inglehart observes that economic development alone will not lead to democracy and that cultural factors are also important. Others, having reviewed the literature, conclude that the evidence is inconclusive.

In sum, it appears that (i) rule of law is necessary in most cases for sustainable economic development but not sufficient; (ii) economic development may lead to political reform, including more democracy and greater respect for human rights, but it need not, at least in the short run; (iii) while economic development tends to coincide with political development or be a condition for political reform, democracy does not necessarily result in economic development; (iv) whether democracy actually impedes economic development is not clear, though at least in some cases, more authoritarian forms of government may be more conducive to economic growth.

In this article, I have suggested that a thin theory of rule of law is a better benchmark for making cross cultural comparisons than a thick theory, and in particular that a thin theory is a better benchmark for judging the performance of China's legal system than a liberal democratic theory since there seems to be little support for a liberal democratic rule of law in China at this time. This is not to claim that thin theories can exist on their own, independently of a thick theory. Thin theories are embedded in particular social-political frameworks, in the case of western countries, a liberal democratic framework; in China's case, a quasi-socialist, soft authoritarian framework. The larger social-political framework influences the theory and practice of a thin rule of law in many ways, including the choice of institutional arrangements and the outcomes of particular decisions.

Nor is it to claim that one cannot argue for the superiority of liberal democracy over socialism or soft authoritarianism. Rather, my point is that liberal democrats and human rights advocates who believe Chinese citizens would be better off if China endorsed democracy, liberal values and a liberal conception of human rights would be better served by addressing such moral and political issues directly rather than by insisting on a particular substantive rule of law.

(TO BE CONTINUED)

(The author is Acting Professor of Law at University of California at Los Angeles.)