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(Editor's note: This is the first of the two essays written by Professor Peerenboom that we will publish on this issue and the September issue of Perspectives. These two essays follow up on two earlier ones regarding a thin theory of rule of law published on Perspectives (http://www.oycf.org/Perspectives/5_043000/china_and_the_rule_of_law.htm and http://www.oycf.org/Perspectives/6_063000/china_and_the_rule_of_law.htm). In these two essays, Professor Peerenboom extends the discussion of rule of law beyond the thin model. In this essay, he considers four thick conceptions of rule of law. In the following essay, he considers various common critiques of his arguments and rule of law more generally. A table and the footnotes are not shown here but are available upon request. The entire essay, with footnotes, is published as Let One Hundred Flowers Bloom, One Hundred Schools Contend: Debating Rule of Law in China, Michigan Journal Of International Law, 23:2, 2002. For a much fuller discussion of rule of law in China, see Professor Peerenboom's China's Long March Toward Rule of Law (forthcoming summer 2002, Cambridge University Press).)
Given the wide variety of political beliefs and conceptions of a just socio-political order, it is in theory possible to categorize thick rule of law theories in any number of ways. In order to facilitate discussion, however, I have divided PRC views into four schools: Statist Socialist; Neo-authoritarian, Communitarian and Liberal Democratic. A few preliminary observations about these conceptions may help avoid misunderstandings. First, a full elaboration of any of these types requires a more detailed account of the purposes or goals the regime is intended to serve and its institutions, practices, rules and outcomes, as provided in the rest of the article and more fully elsewhere. Second, these four ideal types were constructed with the present realities of China in mind. For instance, I attribute to Statist Socialism a belief in a market economy. This is not to rule out the possibility of a Statist Socialist rule of law that adopts a centrally planned economy. However, China can no longer be described in such terms. My purpose is not to create an exhaustive set of categories that can be applied to all countries and legal systems, or even all Asian countries. The categories may not be applicable at all to other countries, or even if applicable in a general sense, they may need to be redefined in light of the particular circumstances and issues.
Nor are these categories exhaustive with respect to China. For instance, given the wide regional differences and the importance of religion and non-Han values in some areas such as Tibet and Xinjiang, a form of semi-religious rule of law might be more appropriate. Moreover, the ideal types could be further subdivided. Thus, Communitarian rule of law could come in a more statist "Asian Values" version, a pragmatic New Confucian version or a Deweyean civic republicanism version that assumes much of the value structure and institutional framework of a liberal democratic order. Indeed, one could create an ever-expanding taxonomy by making finer specifications of any of the variables or introducing new ones. However, at some point, one begins to lose the forest for the trees. For present purposes, these four types are sufficient to capture the main differences in the dominant prevailing political and legal views.
The four variants are ideal types in the sense that they are representative models. As such, they are intended to reflect real positions. It is therefore possible to identify schools of thought and individuals that fall into each of the categories. At the same time, they are a distillation of the views of many different individuals, drawn from not only written sources but thousands of conversations with scholars, legal academics, judges, lawyers and citizens over the years. Consequently, no one type may fit exactly the position of any one person or group. For instance, while most New Conservatives would support Neo-Authoritarianism, some might favor Statist Socialism or Communitarianism. Others might not fit easily into any category, but rather endorse elements from different schools. Moreover, although certain individuals may have expressed general support for some of the central tenets of the various ideal types, they will not have addressed all of the specific issues that I address. At times, therefore, the positions attributed to their variant of rule of law are a logical extension of their ideas based on inferences from their general principles.
Each of the various types is compatible with a variety of institutions, practices, rules and to some extent outcomes. Within Western Liberal Democratic legal orders, for example, there is considerable variation along each of these dimensions. Take such a basic issue as separation of powers. In the U.S., separation of powers refers to a system in which the legislature, executive and judiciary are constitutionally independent and equal branches. In contrast, the U.K. and Belgium, among others, are parliamentary supreme states. On the other hand, despite these structural differences, no country-not even the U.S.-adheres to the simplistic separation of powers where the legislature passes laws, the executive implements them and the courts interpret and enforce them by adjudicating disputes. For better or worse, administrative agencies everywhere make, implement and adjudicate laws.
Conversely, different regimes may share similar purposes, institutions, practices and rules. Given a general consensus on the purposes and elements of a thin theory, one would expect of course a certain amount of convergence in institutions, practices and rules. For instance, in order to enhance predictability and limit government arbitrariness, China has established many of the same mechanisms for controlling administrative discretion as have other regimes. It has also enacted a number of administrative laws modeled on comparable laws in the U.S. and Europe.
Notwithstanding the wide variation within particular regime types on the one hand and the overlap among different regime types on the other, the ideological differences that underlie different thick conceptions of rule of law tend to be reflected in variations in institutional arrangements, practices, rules and most importantly in outcomes. Indeed, even were China to import wholesale the institutions and legal doctrines of the U.S., the outcomes in particular cases would still differ as a result of fundamental differences in values, political beliefs and philosophies. The four ideal types, therefore, serve a heuristic purpose in capturing some of the basic differences between alternative thick conceptions of rule of law in the PRC.
For comparison purposes, I refer to a rule by law regime where relevant. Of course, rule by law systems come in different varieties as well. There are more moderate and more extreme versions. The legal system during the Mao era, particularly during the Cultural Revolution, was a good example of an extreme version, to the point where at times it hardly could be described as even a rule by law legal system, which after all implies some form of law-based order. Notwithstanding variation within the category of rule by law, rule by law is distinguishable from rule of law systems in that the former rejects the central premise of rule of law that law is to impose meaningful limits on even the highest government officials. Nevertheless, a rule by law system, especially a more moderate form than that of the Mao era, may share some features with some versions of rule of law, particularly the Statist Socialist and Neo-Authoritarian ones: for example, the rejection of elections in favor of single party rule. This is hardly surprising given that institutions, rules or practices may serve more than one purpose or end. On the other hand, in some cases, certain features appear to be the same but differ in degree or the role they play in rule of law and rule by law regimes. For instance, while Communitarians accept some limits on civil society, the limits are much more restrictive in a rule by law system, even a moderate rule by law regime. Similarly, a rule by law system aims at a much higher degree of thought control than the others.
Although all four rule of law variants favor a market economy, they differ with respect to the degree, nature and manner of government intervention. Notwithstanding the significant differences in the economies of Western liberal democracies that have led neo-institutionalists and political economists to posit varieties of capitalism even within Europe, economies in liberal democratic states tend to be characterized by minimal government regulation intended primarily to correct market failures, a clear distinction between the public sphere and private commercial sphere and limited administration discretion to interfere in private business. In contrast, economic growth in many Asian countries, including China, has been attributed to a form of managed capitalism in which the state actively intervenes in the market, government officials blur the line between public and private spheres by establishing clientelist or corporatist relationships with private businesses, and universal laws are complemented, and sometimes supplanted, by administrative guidance, vertical and horizontal relationships, and informal mechanisms for resolving disputes. In these Asian development states, the government relies on its licensing power and control over access to loans, technology and other information and inputs to steer companies in the direction determined by the state. In some cases, the government will champion particular companies or sectors of the economy. The government may also have a direct or indirect economic interest in certain companies. Of course there is considerable variation in the amount, nature and form of government intervention in Asia countries. Surely Hong Kong's economy has been as laissez-faire as any in the West. On the whole, however, Asian governments have taken a more interventionist approach to managing the economy.
China's economy is currently heavily regulated and characterized by clientelism and corporatism. Moreover, governments at all levels have both direct and indirect economic interests in companies. To be sure, there is considerable debate about the merits of such heavy government intervention and close government-business relations. While a more laissez-faire economy has its supporters, there is ample support for the view that China's transition from a centrally-planned economy to a market economy requires a strong (Neo-authoritarian) government able to make tough decisions without fear of having to appease the electorate. Although Statist Socialists and Neo-authoritarians (and rule by law proponents) are most likely to adopt such views, many if not most Communitarians also support them. The difference between them is that Statist Socialists arguably favor a higher degree of government regulation than Neo-authoritarians and Communitarians.
Statist Socialists and Neo-authoritarians are also somewhat more likely to favor corporatist or clientelist relationships between government and businesses than Communitarians on the grounds that it increases the state's control over economic activities. However, all are concerned about the negative effects of corporatism and clientelism, in terms of both economic efficiency and increased corruption. Thus some shift away from such relationships as they currently exist toward a more open, transparent process based on generally applicable laws is likely, even if in the end there remains a higher degree of interaction between government and business than in the West.
Public ownership is one pillar, albeit a shaky one, of Jiang Zemin's socialist rule of law state. To be sure, all states allow for some public ownership. Nonetheless, in comparison to the others, Statist Socialists can be expected to favor somewhat higher levels of public ownership, more limitations on the kinds of shares that can be held by private and foreign investors and more restrictions on the industries in which private and foreign companies may hold majority shares.
Liberal democracies are characterized by genuine democratic elections for even the highest level of government office, a neutral state in which the normative agenda for society is determined by the people through elections and a limited state with an expansive private sphere and robust civil society independent of the state. In contrast, Statist Socialism is defined by single party rule, elections at only the lowest level of government and at present a nomenklatura system of appointments whereby the highest level personnel in all government organs including the courts are chosen or approved by the Party. Rather than a neutral state, the Party in its role as vanguard sets the normative agenda for society, which currently consists of the four cardinal principles: the leading role of the Party, adherence to socialism, the dictatorship of the proletariat and adherence to Marxism-Leninism-Mao Zedong thought. In addition, there is a smaller private sphere and a correspondingly larger role for the state in supervising and guiding social activities. If Statist Socialists had their way, there would be at most a limited civil society characterized by a high level of corporatist and clientelist relationships with government. In these respects, there is little to distinguish Statist Socialists from rule by law advocates, although the latter might favor an even more totalitarian form of government.
Neo-authoritarians prefer single party rule to genuine democracy. They would either do away with elections, or were that not politically feasible, limit elections to lower levels of government. If forced to hold national level elections, they would attempt to control the outcome of the elections by imposing limits on the opposition party or through their monopoly on major media channels. Like the Statist Socialists, they reject the neutral state and favor a large role for the government in controlling social activities. Nevertheless, they would tolerate a somewhat smaller role for the government and a correspondingly larger civil society, albeit one still subject to restrictions and characterized by clientelism and corporatism.
In contrast, Communitarians favor genuine multiparty democratic elections at all levels of government, though not necessarily right at the moment. Given their fear of chaos, distrust of the allegedly ignorant masses and lack of requisite institutions, they are willing to postpone elections for the moment and to accept a gradual step-by-step process where elections are permitted at successively higher levels of government. Like the Statist Socialists and Neo-authoritarians, they believe state leaders should determine the normative agenda for society, and hence allow a larger role for the state in managing social activities than in a liberal democratic state. However, they prefer a somewhat more expansive civil society. Although some groups, particularly commercial associations, might find close relationships with the government helpful, other more social or spiritual groups might not. The latter would be permitted to go their own way, subject to concerns about social order, public morality and specific harms to members of the group or society at large. Rather than hard or statist corporatism, Communitarians favor a soft or societal version.
Liberal Democrats favor a liberal understanding of rights that gives priority to civil and political rights over economic, social, cultural and collective or group rights. Rights are conceived of in deontological terms as distinct from and normatively superior to interests. Rights are considered to be prior to the good (and interests) both in the sense that rights "trump" the good/interests and in that rights are based not on utility, interests or consequences but on moral principles whose justification is derived independent of the good. To protect individuals and minorities against the tyranny of the majority, rights impose limits on the interests of others, the good of society and the will of the majority. Substantively, freedom is privileged over order, individual autonomy takes precedence over social solidarity and harmony, and freedom of thought and the right to think win out over the need for common ground and right thinking on important social issues. In addition, rights are emphasized rather than duties or virtues.
In contrast, Communitarians endorse a communitarian or collectivist interpretation of human rights that emphasizes the indivisibility of rights. Greater emphasis in placed on collective rights and the need for economic growth, even if at the expense of individual civil and political rights. Rather than a deontological conception of rights as antimajoritarian trumps on the social good, rights are conceived of in utilitarian or pragmatic terms as another type of interest to be weighed against other interests, including the interests of groups and society as a whole. Accordingly, stability is privileged over freedom; social solidarity and harmony are as important, if not more so, than autonomy and freedom of thought; and the right to think is limited by the need for common ground and consensus on important social issues. Communitarians, Neo-authoritarians, Statist Socialists and rule by law advocates also pay more attention than liberal democrats to the development of moral character and virtues and the need to be aware of one's duties to other individuals, one's family, members of the community and the nation.
Like Communitarians, Neo-authoritarians and Statist Socialists conceive of rights in utilitarian or pragmatic terms. However, they have a more state-centered view than Communitarians. Statist Socialists in particular are likely to conceive of rights as positivist grants of the state and useful tools for strengthening the nation and the ruling regime. They are also more likely than Neo-authoritarians to invoke state sovereignty, "Asian Values" and the threat of cultural imperialism to prevent other countries from interfering in their internal affairs while overseeing the destruction of the communities and traditional cultures and value systems that they were allegedly defending. Nevertheless, Communitarians and Neo-authoritarians in China are also likely to object to strong-arm politics and the use of rights to impose culture-specific values on China or to extract trade concessions in the form of greater access to Chinese markets. Moreover, like Communitarians, Neo-authoritarians and Statist Socialists privilege order over freedom. They go even farther than Communitarians, however, in tilting the scales toward social solidarity and harmony rather than autonomy, and are willing to impose more limits on freedom of thought and the right to think. While Neo-authoritarians would restrict the right of citizens to criticize the government, Statist Socialists would impose such broad restrictions that criticism of the government would be for all practical purposes prohibited. Indeed, Statist Socialists much prefer unity of thought to freedom of thought and right thinking to the right to think. Were it possible (without undermining their other goals such as economic growth), they would return to the strict thought control rule by law regime of the Mao era. At minimum, they draw the line at public attacks on the ruling party or challenges to single party socialism. Despite the changes in society over the last twenty years that have greatly reduced the effectiveness of "thought work", they continue to emphasize its importance to ensure common ground and consensus on important social issues defined by the Party line.
The rule by law regime of the Mao era differed from any of these rule of law regimes in considering the concept of rights as a bourgeois liberal device to induce false consciousness in the proletariat. Although the Mao regime did include some rights in its various constitutions, such rights were considered programmatic goals to be realized at some future date. In addition, duties were privileged over rights, especially duties to the state, civil society was extremely limited and efforts at thought control were pervasive.
Proponents of the various conceptions see rule of law serving certain similar purposes: enhancing predictability and certainty, which promotes economic growth and allows individuals to plan their affairs, preventing government arbitrariness, increasing government efficiency and rationality, providing a mechanism for dispute resolution, protecting individual rights and bolstering regime legitimacy. They differ, however, with respect to the priorities of the various purposes, their degree of support or enthusiasm for any given purpose and the details of how the goals are interpreted. Broadly stated, Liberal Democrats emphasize the role of rule of law in limiting the state and protecting the individual against government arbitrariness, whereas Communitarians favor a more balanced role for rule of law as a means of both limiting and strengthening the state. In contrast, Neo-authoritarians place somewhat greater emphasis on the state-strengthening aspect, which is assigned an even higher priority by Statist Socialists.
Indeed, although Statist Socialists accept-at least in theory-the primary requirement of rule of law that government officials and citizens alike are subject to law and must act in accordance with it, they accept such limits grudgingly. Not surprisingly, to date the reach of the law has been limited, with high level government officials typically subject to a separate system of Party discipline rather than to the formal legal process. Moreover, while Statist Socialists appreciate the benefits of limiting government arbitrariness, they also prefer a system that allows them sufficient flexibility to pursue their legitimate (and sometimes illegitimate) ends. And while they regularly declare that rule of law is necessary to protect individual rights, it is not a high priority. In any case, the ability of the legal system to protect individual rights is severely hampered by their statist conception of rights and the extreme emphasis on stability and order over freedom.
Differences in the purposes of rule of law are evident in the weights attached to stability. All-even Liberal Democrats-agree that stability is important. Clearly one purpose of law in Western traditions has been to prevent anarchy and a Hobbesian war of all against all. China, for its part, has suffered tremendous upheaval in the last 150 years, from the uprisings against and eventual collapse of the Qing to the chaos and internal struggles of the Republican period to the turbulence of the anti-rightist movement, Great Leap Forward and Cultural Revolution of the Mao era. With a quarter of the world's population, many of them below or near the poverty level, China (and the rest of the world) can hardly afford political chaos or anarchy. The current economic reforms have already resulted in massive unemployment and rising unrest. As the reforms continue and the number of unemployed shoots up, the potential for traumatic disruptions of the social order increase accordingly.
Rule of law could serve the goal of stability in a variety of ways. First, it could limit the arbitrary acts of government. One of the biggest sources of instability in the last fifty years has been the Party itself and the arbitrariness of senior leaders. One of the main reasons for promoting rule of law after the death of Mao was to avoid the chaos of the Cultural Revolution where the whims of Party leaders substituted for laws. Rule of law is meant to make governance more regular and predictable. It is also needed to address the perennial problem confronting socialist regimes of political succession. Whereas the death of Mao set off a struggle for power, rule of law is supposed to ensure a more seemly and seamless transition of power.
In addition, rule of law serves stability by regularizing central-local relations. Conflicts between the central and local governments have increased dramatically as a result of economic reforms that have given local governments both more authority and responsibility. In their desire to promote local economic development, local governments regularly ignore central laws and policies, issue regulations that are inconsistent with national level laws or engage in local protectionism. While there seems little chance of the central government losing control over local governments to the point where local governments emerge as Republican era type warlords, as some alarmists have suggested, authority has become fragmented to such an extent that China arguably now has a de facto federalist form of government. Predictably, Jiang Zemin and other Statist Socialists emphasize the value of rule of law as a means of disciplining local governments and recentralizing power.
On the other hand, some scholars have noted that stability is often a code word in Chinese politics for greater centralization of power, an emphasis on collective over individual rights and the continued dominance of the Party. In this view, the government's emphasis on stability is overstated and is really just an attempt to limit challenges to Party rule. Former Vice Director of China Academy of Social Sciences Li Shenzhi, for instance, argues that subsistence is no longer such a major problem. Accordingly, more emphasis should be paid to political reform and citizens' civil and political rights. Similarly, Yu Keping has argued that political reform need not lead to instability. To some extent, the differences turn on empirical issues. How unstable is China? How likely is it that the activities of any one dissident or even a group of dissidents could endanger national security? But they also reflect fundamental differences in values. Although all appreciate the need for stability, liberals would place greater importance on freedom whereas Statist Socialists, Neo-authoritarians and Communitarians would privilege, to varying degrees, order over freedom.
Broad agreement over other purposes also gives way to subtle differences upon further probing. All agree, for instance, that predictability and certainty are crucial for economic growth. But predictability and certainty may serve other purposes as well. Liberal Democrats value predictability because it enhances freedom by allowing people to plan their affairs and realize their ends in life, and thus promotes human dignity. Underlying this view is a liberal view of the self as moral agent that emphasizes autonomy and the importance of making moral choices. But not all ethical traditions share this view of the self or place such importance on choice making. The dominant Chinese view of the self as social and the Confucian emphasis on doing what is right rather than the right to choose calls into question justifications of rule of law that appeal to this interpretation of human dignity. Of course, the ability to plan one's affairs is valuable to some degree in China. However, the weight attached to the ability to plan one's affairs and the reasons given in support are likely to differ between Liberal Democrats and the others, with Statist Socialists assigning it the least weight.
Similarly, all hope that rule of law will enhance the legitimacy of the ruling regime. However, by allowing elections and ample opportunities for public participation in lawmaking, administrative rulemaking and interpretation and implementation processes, legitimacy for Liberal Democrats and Communitarians is based on consent. In contrast, in the absence of elections and with only limited opportunities for public participation, legitimacy for Statist Socialists and Neo-Authoritarians is primarily performance based: that is, legitimacy depends on whether the laws, the legal system and the regime as a whole produce good results.
In contrast, in a rule by law regime, law is merely a tool to serve the interests of the state, and there are no meaningful legal limits on the rulers. Law serves the state by enhancing government efficiency, although that goal is often compromised by the heavily politicized nature of law and the dominance of policy. Law is not meant to protect the rights of individuals. Whereas rule of law regimes rely on the courts to resolve disputes, in the Mao era, for instance, the formal legal system was used primarily to suppress enemies. Disputes among the people were settled through mediation, and economic conflicts between state-owned entities were resolved administratively or by Party organs.
According to Max Weber, the defining feature of a modern legal system that merits the label rule of law is autonomy. Law is distinct from politics, and independent judges decide cases impartially in accordance with generally applicable laws using a distinct type of legal reasoning. To be sure, the line between politics and law is not always a clear one, as Critical Legal Scholars repeatedly remind us. Nevertheless, as Alice Tay observes: "The difference between law and decree, between government proclamation and administrative power on the one hand and the genuine rule of law on the other, is perfectly well understood in all those countries where rule of law is seriously threatened or has been abolished."
While the outer extremes between a system dominated by politics-such as the legal system in the Mao era, particularly during the Cultural Revolution-and a rule of law system in which legal institutions and actors enjoy a high degree of autonomy are reasonably clear, there is considerable room for variation in the middle. Advocates of alternative conceptions of rule of law are likely to disagree over where to draw the line between law and politics due in part to their divergent views about the economy, the political order, the nature and limits of rights and the purposes that law is meant to serve.
Liberal Democrats favor a high degree of independence and autonomy. The legislature that makes laws is freely elected rather than appointed by the ruling party. The judiciary as a whole and individual judges are independent. Judges generally enjoy lifetime tenure and can be removed only for limited reasons and in accordance with strict procedures. The appointment process is relatively non-politicized. There are a variety of mechanisms for reining in administrative discretion, and the legal system is capable of holding even top-level government officials accountable. The legal profession is independent and often self-governing.
At the other end of the spectrum, Statist Socialists favor only a moderate to low level of separation between law and politics. In keeping with the minimal requirements of rule of law, Chinese Communist Party (CCP) policy is now to be transformed into laws and regulations by entities authorized to make law in accordance with the stipulated procedures for lawmaking, whereas in the Mao era CCP policies substituted for or trumped laws. Although the legislature is not freely elected, Party influence on the lawmaking processes has diminished radically since the beginning of reforms. To be sure, like ruling parties in parliamentary systems in other countries, the Party is able to ensure that major policy initiatives become law when it is united and willing to expend the political capital to do so.
Statist Socialists also favor a more limited judicial independence. Courts have a functional independence in the sense that other branches of government are not to interfere in the way courts handle specific cases. Unlike the Mao era, courts may decide cases without Party approval of the judgment. However, the courts may still be subject to macro-supervision by the NPC, the procuracy and other state organs, and even Party organs. While the courts as a whole enjoy limited functional independence, the autonomy and independence of individual judges is even more restricted. Accordingly, most cases are decided by a panel of judges, and a special adjudicative supervision committee within the court has the right to review particular decisions in case of manifest error.
The legal profession is granted a similar partial independence. Although not the "workers of the state" of the Mao era, lawyers still must meet political correctness standards to practice law and pass the annual inspection test. While the Ministry of Justice (MOJ) shares responsibility for supervising the legal profession with lawyers associations, the MOJ retains most of the authority, including the power to punish lawyers. In part because of such political reasons, but mainly due simply to corruption and rent-seeking by the MOJ and its local affiliates, lawyers try to forge close clientelist relations with the MOJ.
In the administrative law area, government officials are granted considerable discretion, in part so that they may be more responsive to shifts in Party policy, but mainly for other reasons, including the need to respond quickly and flexibly to a rapidly changing economic environment. Limits on civil society, freedom of the press and public participation in the law making, interpretation and implementation processes make it difficult for the public to monitor government officials. The lack of elections eliminates whatever leverage the public has over officials resulting from the possibility of voting the current government out of office.
Neo-authoritarians prefer a moderate separation between law and politics. As with Statist Socialism, the legislature is not elected. However, Neo-authoritarians favor greater judicial independence than Statist Socialists, although many would still limit the independence of the courts and individual judges in various ways. For instance, they may prefer China's unitary system in which the NPC is supreme and exercises supervision over the courts to a U.S. style separation of powers system. On the other hand, they support the development of a more professional and honest civil service, and an administrative law system capable of reining in wayward government officials and combating corruption. They also advocate greater public participation and more expansive, though still limited, freedom of association, speech and the press so that the public can play a greater role in the monitoring of government officials. The primary purpose of administrative law, however, remains rational and efficient governance rather the protection of individual rights. The elite corps of civil servants are to be given considerable flexibility in formulating and implementing administrative rules, which are the main form of legislation in daily governance. The legal profession would be granted limited independence and subject to supervision by the MOJ, albeit a cleaner and more professional one. Nevertheless, lawyers would still seek to establish clientelist ties to the MOJ due its control over licensing for special forms of business and other commercial reasons.
Communitarians prefer a moderate to high degree of separation between law and politics. The legislature would be freely elected. There would be ample opportunities for public participation in rule making, interpretation and implementation. The public would also be able to throw out a government that is corrupt or performs poorly; as a whole, the administrative law system would be sufficiently strong to hold even top level government officials accountable. Although Communitarians are sympathetic to the argument that a strong economy, particularly in times of transition, requires a strong executive, they balance the need for efficient government against the need to protect individual rights. Moreover, like the Liberal Democrats, they support an autonomous judiciary, with life tenure for judges and relatively apolitical processes for appointing and removing judges. At the same time, they reject the liberal notion of a neutral state. Accordingly, they favor the practice whereby courts decide cases in light of a substantive moral agenda for society determined by the ruling elite. In that sense, they do not differ from Statist Socialists or Neo-authoritarians. Rather what distinguishes them is the particular normative agenda. The Communitarians believe that judges should emphasize harmony, stability and the interests of the community over the interests of individuals as well as economic development. Neo-authoritarians and State Socialists agree in general but place more emphasis on economic development and upholding the authority of the state. In particular, State Socialists insist that the courts uphold the four cardinal principles-a position not supported by either Neo-authoritarians or Communitarians.
Although there is room for disagreement among liberal democrats on specific issues, on the whole Liberal Democrats prefer liberals laws. For instance, liberal laws provide strong protections for broadly defined civil and political rights. For some, free speech may be subject to only narrow time, place and manner restrictions. Social groups are free to organize without having to register with government authorities. Persons accused of crimes have the right to a lawyer, who may be present at all stages of formal interrogation; the accused may only be held for a very limited time without being charged; and the state may not rely on illegally obtained evidence in making its case. Euthanasia laws may allow individuals to choose to end their life or to ask others to assist them in doing so. Parents may keep their children out of the schools and educate them at home if they choose.
Communitarians, Neo-authoritarians and Statist Socialists all endorse laws that limit individual freedom to one extent or another. For instance, all allow registration requirements for social groups to ensure public order. All accept substantive limits on speech as well as time, place and manner speech. No one is free to walk into a courtroom with a jacket that says "Fuck the Draft" on it. Flag burning is outlawed. The accused have a right to a lawyer but only after the police have had an initial opportunity to question them. The accused may be held for longer periods without being charged, and the period may be extended upon approval of the authorities. Illegally obtained evidence may be used in certain instances, though forced confessions and police torture are not allowed. Children are required to attend state-authorized schools, and to study a curriculum approved by the Ministry of Education. More controversially, Statist Socialists and Neo-authoritarians, and perhaps even Communitarians, endorse broadly drafted laws to protect the state and social order, such as state secrets laws and prohibitions against endangering the state.
Institutions in a broad sense include ideology, purposes, organizational structures and cultures, norms, practices, rules and outcomes in specific cases. Although I have separated them for the sake of a clearer exposition, in reality they overlap and blend together, as evident from the following examples concerning constitutional, administrative and criminal law.
In general, constitutions in socialist countries have played a very different role than constitutions in liberal democratic rule of law states, in part because socialist states have made little pretense of abiding by the basic requirements of rule of law and accepting any constitutional limits on the ruling regime's power. Reflecting their origins in Enlightenment theories of social contract, liberal constitutions emphasize a limited state and a separation between state and society. Rule of law plays a central role in imposing limits on the state and protecting the individual against an over-reaching government by ensuring that the state does not encroach on the fundamental rights of individuals set out in the constitution. Liberal constitutions set out fundamental principles that are supposed to stand the test of time, including the basic rights of citizens.
In contrast, socialist constitutions are characterized by frequent change. The frequent change in socialist constitutions is consistent with socialist legal theory, which conceives of law as a superstructure that reflects the economic basis of society and in particular the ownership of the material modes of production. When the economic base changes, law-and the constitution-must change accordingly. Moreover, since Marxism posits an evolution toward an ideal state, when the economy passes through various stages, amendment of the constitution is to be expected. In the PRC, the 1978 constitution was replaced in 1982 by a more market-oriented constitution that reflected Deng Xiaoping's economic open-door and reform policies. The 1982 constitution has subsequently been amended three times as economic reforms have deepened and the economy has steadily moved away from a centrally planned economy toward a more market-oriented economy. Each time the amendments incorporated the more market-oriented policies.
Although changes in PRC constitutions reflect transformations in the economic base of society, they also reflect fundamental shifts in political power. Again, this is entirely consistent with socialist legal theory, which conceives of law as a tool of the ruling class. Whereas in a capitalist society, law serves the bourgeoisie, in a socialist state law allegedly serves the people. However, in a Leninist socialist state, the Party acts as the vanguard of the people. Thus law becomes a tool of the Party. The constitution changes when there are major changes in Party leadership or Party policy. The 1954 constitution therefore reflected the victory of the CCP and the Party's consolidation of power. The 1975 Cultural Revolution constitution codified Mao's victory over his opponents and embodied his radical vision for a society that must engage in permanent revolution and ceaseless class struggle to defend socialism against the enemy within and abroad. The short-lived 1978 constitution signaled Deng's victory over Mao loyalists, the turn toward a more law-based order and the need to concentrate on economic development rather than class struggle. However, Deng had yet to consolidate his power. By 1982, he was firmly in control. Thus the 1982 constitution confirmed the new emphasis on economic development. It also continued the trend, begun in the 1978 constitution, to downplay the dominance of the CCP, separate the Party from government, and turn over the functions of day-to-day governance to state organs. Although the 1982 constitution incorporated Deng's four cardinal principles, they were placed in the preamble. In contrast, the principles of the supremacy of the law and that no individual or party is beyond the law were incorporated into the body of the constitution. Nevertheless, the constitution did not explicitly endorse rule of law, even a socialist rule of law, until the amendment in 1999.
What role the constitution will play in the future depends in part on which version of rule of law prevails. Should Statist Socialism win out, given the relatively low level of separation between law and politics, the constitution is likely to continue to change frequently to reflect major changes in policies as determined by state leaders. Because Statist Socialists see rule of law as a means to strengthen the state, the role of the constitution in protecting rights will remain limited. The constitution might not be directly justiciable; individuals would generally be able to avail themselves of the rights provided in the constitution only if such rights are implemented by specific legislation. On the other hand, even if Statist Socialism prevails, the constitution is likely to play a more important role as a baseline for measuring the legitimacy of state actions. To maintain credibility, the ruling regime will have to take the constitution more seriously. As a result, the ruling regime will appeal to the constitution more often to justify its acts. Indicative of the transition toward rule of law, Beijing has already begun to appeal to the constitution at critical times, including when the government imposed martial law in 1989 and banned Falungong in 1999.
The constitution will play an even more important role if a Neo-authoritarian or Communitarian form of rule of law is adopted. Although the tension between strengthening and limiting the state would still be manifest in constitutional law, at minimum there would be greater emphasis on individual rights. As a result, the constitution would probably become directly justiciable. It might also be subject to less change. The process for amending the constitution would differ, at least for Communitarians. Whereas non-elected state leaders would make the decision to amend the constitution for Statist Socialists and Neo-authoritarians, democratically elected representatives would make the decision in a Communitarian state.
Like constitutional law, the administrative law regime will vary depending on which version of rule of law wins out. Until recently in China, the main purpose of administrative law was considered to be to facilitate efficient administration. This view has now largely given way to the belief that administrative law must strike a balance between protecting the rights of individuals and promoting government efficiency. Although the tension between the two goals is evident in every system, how China balances the two will depend on which of the various alternatives of rule of law is adopted. To date, there is very limited public participation in the administrative law process. An Administrative Procedure Law is being drafted, however, that will increase opportunities for public participation. Should the Communitarian or even the Neo-authoritarian conception prevail, one should expect the law to allow for greater public participation than if the Statist Socialist conception prevailed.
Differences in conceptions of rule of law are also evident in the outcomes of administrative litigation cases. PRC courts have been reluctant to review aggressively administrative decisions. On the whole, they have shown considerable deference to administrative agencies, for example by interpreting very narrowly the abuse of authority standard for quashing administrative decisions. In particular, they have been reluctant to interpret abuse of authority to include a concept of fundamental rights, as have courts in some Western liberal democracies. There are many reasons for the courts' deference other than ideology, including institutional limits on the power of the courts. But even setting aside the various institutional obstacles, given the weak support for liberalism in China, PRC courts are less likely than their counterparts in liberal democratic states to take full advantage of the abuse of authority standard as a means to protect individual rights and rein in government officials at the expense of government efficiency.
Criminal law is another area where outcomes are especially sensitive to differences in ideology and in the conceptions of rule of law. In light of the importance of stability to most Chinese, civil and political rights are likely to be subject to more limits than in liberal democratic states. Statist Socialists in particular will object to criticisms of the government that challenge single party socialism. Accordingly, the continued persecution of dissidents is likely to continue if Statist Socialists (and perhaps if Neo-authoritarians) prevail. At present, the authorities often rely on re-education through labor (lao jiao), an administrative sanction whereby dissidents may be detained for one to three years, with a possible extension for another year, without many of the procedural rights afforded criminal suspects under the Criminal Procedure Law. Although Liberal Democrats object to re-education through labor, others are likely to support it as necessary for social stability. Hence the complete elimination of re-education through labor does not appear to be politically feasible at this point. Arguably the best that Liberal Democrats can hope for is that the process is changed to incorporate more procedural protections of the kind incorporated in the Criminal Procedure Law.
On the other hand, rule of law is not infinitely elastic. Any supporter of rule of law will question the manner in which the government has suppressed dissidents. Even in criminal cases, dissidents are often denied their rights under the Criminal Procedure Law, including a right to an open trial, to communicate with their lawyers and families and so on.
In short, the outcomes of many particular issues will turn on the specific substantive moral, political and economic beliefs that define a particular thick conception of rule of law. How much criticism of government should be allowed and under what circumstances? Should one be able to use offensive language in public? Should beggars be allowed on the street? Under what circumstances can someone be stopped and searched? Do the police need a warrant to enter your house and, if so, how and when can they obtain one? Must individuals carry an identification card? Is the "anger of the people" a legitimate basis for meting out capital punishment? Should adultery be a crime? Are gay marriages consistent with family values, a way of strengthening a newly envisioned family or a threat to the very notion of family? Liberal Democrats, Communitarians, Neo-authoritarians and Statist Socialists will disagree over these issues, and indeed there will be many disagreements within any given school, just as there are many disagreements over such issues in countries known for liberal democratic rule of law. Nevertheless, despite such disagreements, there is also considerable common ground about the basic requirements of rule of law as captured in thin theories, and general acceptance that rule of law differs from rule by law in that the former entails meaningful legal limits on the government actors.
(TO BE CONTINUED)
(The author is Acting Professor of Law at University of California at Los Angeles.)
Continue reading Let One Hundred Flowers Bloom, Part 2.