[ http://www.oycf.org/Perspectives/18_093002/one_hundred_flowers_p2.htm ]
(Editor's note: This is the second of the two essays written by Prof. Peerenboom. The first one was published on the June issue of Perspectives. The entire essay, with footnotes, is published as Let One Hundred Flowers Bloom, One Hundred Schools Contend: Debating Rule of Law in China, 23:2, Michigan Journal Of International Law (2002). For a much fuller discussion of rule of law in China, see Prof. Peerenboom's China's Long March Toward Rule of Law, 2002, Cambridge University Press.)
The suggestion that China is in transition toward rule of law, though not a Liberal Democratic rule of law, gives rise to a number of theoretical and practical issues. Some of the criticisms are common to rule of law theories in general. Others are more China-specific.
Specifying the Minimal Conditions for Rule of Law: Will We Know Rule of Law in China When We See It?
One common objection to thin versions in China and abroad is that they are inadequately theorized. Even acknowledging considerable agreement about the basic elements, there is still considerable room for disagreement about the details. Some of the elements are vague, a matter of degree and subject to exceptions. What precisely is meant by consistent? Some laws may not be directly contradictory, but may have inconsistent purposes. Some laws are clearer than others. Sometimes laws are changed and even made effective retroactively. The notion of equality before the law raises the question of equal in what respect: what are the morally and legally relevant factors in deciding whether two people are similarly situated? The general principle of supremacy of the law may in some cases need to give way to higher moral principles and considerations of equity or justified civil disobedience. Further, at times the various elements and goals conflict. Replacing a number of vague rules with clearer ones would result in greater clarity and perhaps predictability in the long run but would lead to instability and greater unpredictability in the short run. A more fundamental objection is that the notion of "meaningful restraints" on the state and state actors is too vague. Legal systems differ both in the degree and in the nature or manner of restraints on the state and state actors.
Put differently, if we accept, as we must, that implementation of the rule of law ideal is always a matter of degree, then the question arises when a system merits the label rule of law. There are several possible approaches to this problem. The first approach tries to provide an account of deviations from the ideal that individually or collectively are so serious as to be incompatible with rule of law. It seeks to answer the questions, at what point do (relatively minor) shortcomings and deviations from the ideal of rule of law, taken collectively, tip the scales such that the system no longer merits the label rule of law? Alternatively, are there some types of shortcomings that are so serious that they alone are sufficient to show the absence of rule of law (and the presence of rule by law)? For instance, if the president and other senior-most officials are not likely to be impeached or held accountable for illegal acts but all other officials are held accountable, is that an imperfect, even a deeply flawed, rule of law, or simply not rule of law at all? Is a legal system that routinely deprives dissidents and opposition political figures of a fair trial but handles all other cases in a fair way a flawed rule of law or an efficient rule by law?
There are considerable theoretical and practical difficulties to this approach. For instance, China's legal system suffers from a number of shortcomings, many of them institutional in nature. As a result, the system falls considerably short of the ideal in terms of such basic requirements as consistency and stability of laws, a reasonably narrow gap between law on the books and law in practice, and the fair application of laws. On the other hand, there has been marked improvement along all of these dimensions. There seems no non-arbitrary way of deciding whether the system should be described as an imperfect rule of law or simply not rule of law at all. Take the requirement of "consistency" as an example. Let us assume that we could show that 20% of all local regulations were inconsistent with central laws. Would that be sufficient to disqualify the system from being considered as a rule of law, albeit an imperfect one? What if 40% or 60% or 80% of such regulations were inconsistent? Would it matter whether the trend was toward less inconsistency, say if in the past 80% of regulations were inconsistent but now "only" 50% were? Would it matter if steps were being taken to reduce the level of inconsistency, as is indeed the case in China? Would the reasons for the high level of inconsistencies matter? During times of economic transition, higher levels are to be expected. Does that somehow make the high level of inconsistencies less objectionable than turf-fighting between administrative agencies or the lack of effective institutions for overturning inconsistent local regulations?
Perhaps of even greater concern is the still limited, albeit increasing, ability of the legal system to impose meaningful limits on government actors. Administrative officials enjoy considerable discretion. To be sure, administrative officials everywhere enjoy considerable discretion, and there are good reasons why administrative officials in China should have somewhat greater discretion than officials in countries where the legislature is more developed and the economy is more stable. But even assuming Chinese officials should be granted a high degree of discretion, such discretion must be subject to legal limits to comply with the requirements of rule of law. Unfortunately, the mechanisms for checking administrative discretion-the letter and petition system, supervision by the media and the Party, administrative reconsideration, administrative supervision and administrative litigation-remain weak. Nevertheless, the very fact that such mechanisms have been established represents a major step toward realization of rule of law and away from rule by law. Moreover, although the mechanisms are weak, they are not completely ineffectual. After all, plaintiffs do prevail in administrative litigation cases in some 40% of the cases, a rate higher than in the U.S., Taiwan or Japan.
Despite the high success rate, the PRC judiciary at present clearly lacks sufficient independence and authority to hold the highest-level senior government officials accountable, at least without the support of the Party. Is the limited accountability of senior officials in practice sufficient to deny China's legal system the label of rule of law? After all, even in the U.S., senior government officials are frequently not held accountable for their actions. Despite the rhetoric of equality of all before the law, in reality senior government officials often receive special treatment in many countries. One need only consider Gerald Ford's pardoning of Richard Nixon or Bill Clinton's pardoning of former Housing Secretary Henry Cisneros and congressman Daniel Rostenkowski. Indeed, the light slap on the wrist Clinton received for lying under oath-suspension of his license to practice law for five years and a fine of $25,000-smacks of special privilege.
Hilary Josephs concluded in her comparison of legal accountability for corruption in China and the U.S. that they "are quite alike in their general reluctance to prosecute high officials. Despite fundamental differences in political systems, and a common commitment to equality before the law, those in power are rarely called to task in either country for criminal misconduct associated with discharge of their official duties." She also points out that in both countries, prosecutors' decisions are influenced by political factors, including party affiliations, with a greater readiness to target someone from the opposing political party or faction. Needless to say, China and the U.S. are not on all fours in this regard. In some ways, China takes corruption more seriously in that corrupt government officials are more likely to be prosecuted based on the core offense rather than ancillary crimes such as fraud or tax evasion, and serious offenses carry the death penalty, whereas in the U.S. the worst punishment is a definite term of imprisonment.
To be sure, it is hard to imagine Jiang Zemin being asked to testify under oath in regard to alleged sexual harassment, as in the case of President Clinton. Nor is it likely that Jiang could be impeached, or convicted of crimes and sentenced to jail once he leaves office, as with former South Korean Presidents Chun and Roh. But should that be the minimum standard? Given that China has implemented laws and established legal institutions capable of imposing limits on some governments officials, the inability to hold a small core of senior-most leaders accountable in all instances arguably merely demonstrates that rule of law is weak in China, not completely absent.
Similarly, all legal systems are politicized to some extent. Moreover, the degree and nature of politicization may differ depending on the type of rule of law that prevails. Nevertheless, the PRC legal system is undeniably unusually politicized, and clearly differs both in the degree and manner of politicization from other legal systems, particularly liberal democracies, known for rule of law. Although the Party and individual Party members are legally obligated to follow the law, the Party's role is not clearly defined in law. Implementation of even a Statist Socialist rule of law would require that the Party's role be spelled out more clearly in law. For instance, while political parties in other countries may play a role in appointing judges, that role is prescribed by law, whereas the role of the Party in appointing judges is not set forth in any publicly promulgated state law. Nor is the role of Party organs within the court or the role of the Political-Legal Committee (PLC) prescribed by law. Even assuming the role of Party organs was spelled out in law, the degree and manner of influence of such organs over the work of the judiciary that would be consistent with rule of law would still be an issue. There have been some efforts to separate Party and state with respect to judicial matters. Party organs rarely interfere directly in the courts' handling of specific cases. Yet dissidents are regularly denied a procedurally fair trial.
Whether politically sensitive cases are handled according to law, and even dissidents are afforded a fair trial, would seem to be one useful barometer of whether a legal system meets the requirements of rule of law. Because politically sensitive cases challenge the ruling regime most directly, a legal system capable of handling such cases fairly and in a manner consistent with the requirements of a thin rule of law will most likely handle commercial, criminal and other less controversial cases in a similar way. Yet it is possible that a legal system could be rule of law compliant in some respects (say with respect to commercial law) and not compliant in other ways (say with respect to political cases), and indeed this arguably has been the case at some points in Taiwan, South Korea, Singapore and other Asian countries. Granted, in the long run, such a system is not likely to be sustainable because for a system to comply with the standards of a thin rule of law in the commercial area requires significant institutional development and autonomy. Once institutions gain a certain degree of autonomy and authority and those within the institution achieve a level of professionalism, the institutional actors are likely to pursue further changes to increase their autonomy and authority. As a result, there are likely to be spillover effects from one area of law to another as institutions develop. Again, Taiwan, South Korea and more recently Indonesia are examples of this trend. During the transition period, some will choose to describe the legal system as a developing albeit flawed rule of law. Others, particularly liberal democrats who privilege civil and political rights over other rights, will be more likely to deny the system the label rule of law.
It should be noted, however, that a "fair" trial in politically sensitive cases need not mean that dissidents or political activists will win. In fact, even in the U.S. political activists regularly lost free speech cases well into this century under a variety of restrictive laws from the Alien and Sedition Acts of 1798 to the Espionage Act of 1917 to state laws criminalizing "subversive advocacy." Likewise, slaves challenging slavery laws and people of color protesting various forms of racial discrimination have all too often met with defeat in U.S. courts. Yet despite such outcomes, many would describe the U.S. legal system at such times as rule of law. As noted, a thin rule of law does not ensure just outcomes. Thus, while the struggle to obtain a procedurally fair trial consistent with a thin rule of law may represent a significant achievement in some respects, at times it may seem a hollow victory to those sent to jail under repressive laws.
To sum up the discussion so far, the problem of defining precisely when a legal system meets the minimum threshold of rule of law, despite its shortcomings, and when the shortcomings are so extensive or objectionable to deny the system the title of rule of law, is a generic jurisprudential problem not unique to China. Clearly, reasonable people can, do and will disagree over the degree and type of shortcomings that will be sufficient to deprive a legal system of the exalted status of rule of law. Given the wide variation in legal systems and the many ways in which all legal systems fall short of the ideal of rule of law, attempting to articulate more precisely the standards of a thin theory or trying to state in a formal way the degree or kind of deviance from the ideal sufficient to deprive a legal system of the label rule of law is not likely to result in sufficient consensus to put an end to the general debate. The best that can be hoped for is a rather rough consensus based on the facts in a particular case. As U.S. Supreme Court Justice Potter said about pornography, "I know it when I see it." To be sure, one person's pornography is another person's art. As the ongoing debates over what is and what is not pornography demonstrate, the eyeball test allows for considerable personal bias. Inevitably, liberal democrats will weight more heavily certain deficiencies in China's legal system, such as the unfair treatment of dissidents and the system of re-education through labor. Thus, the eyeball approach will not always lead to agreement. Nevertheless, in some cases, there will be a general consensus. For instance, few if any would challenge the claim that China's legal system during the Mao period was not rule of law.
Given the difficulties associated with the first approach, an alternative approach would be to describe any system as rule of law in which there is a credible normative commitment to the principle that law is to bind the state and state actors, as evidenced by efforts to establish a legal system that meets the standard of a thin theory. Although in some cases there might still be disagreement about whether even such a minimal standard has been met, lowering the standard would shift the debate in most cases from whether a legal system ought to be described in terms of rule of law to how well rule of law is implemented in practice. Having cleared the initial hurdle of a credible commitment to the principle that law ought to bind the state and state actors, the focus then turns to the extent to which the ideal of rule of law is actually realized, with legal systems ranked on a sliding scale based on the criteria of thin theory, including the extent to which law does limit the state and state actors. Such an approach is arguably more consistent with the reality that all legal systems deviate from the ideal in various ways and to various degrees. Taking this tack, China's legal system, for instance, could be considered as a rule of law, albeit an imperfect one. Whereas the legal systems of Japan and Germany, for example, might merit a ranking of 9 on a 10-point scale, China's legal system might only be assigned a score of 2.
This sliding scale approach is not without problems, however. An initial difficulty, though not an insurmountable one in my view, is in establishing the minimum requirements to show a "credible normative commitment" to the principle that law binds the state and state actors. For instance, in China's case, the principle that the Party, individual Party members, state organs and government officials must comply with the law was set forth in Article 5 of the 1982 Constitution. By itself, however, that would not be sufficient, particularly given the previous role of law and constitutions during the Mao era. At the time, few observers would have believed solely on the basis of a change in the constitution that the Party had accepted any meaningful limits on its power. Observers could reasonably have expected the ruling regime to produce more evidence of its change in policy, and in particular to back up its rhetoric with actions. Since then, however, the ruling regime has taken concrete steps to create a legal basis for challenging the state by passing a wide range of administrative laws and carrying out a host of reforms to strengthen legal institutions. The dominant understanding of the purpose of administrative law has also shifted from simply a focus on government efficiency and the use of administrative law to ensure that government officials serve the interest of the state to the now widely accepted "balance theory" whereby administrative law both protects individual rights and enhances government efficiency. The ruling regime reconfirmed its commitment to rule of law by amending the Constitution in 1999. In addition, the state has expended considerable resources building up all of the legal institutions. The legislature is more assertive; the courts enjoy greater albeit still limited independence; the legal profession is more autonomous and professional; the procuracy and police forces have also been strengthened. The Party has turned over much of the responsibility for daily governance to the usual state organs. The Party no longer rules primarily based on Party policy and Party dictates. With the greater reliance on law to govern, law has begun to gain normative authority and is becoming an independent source of legitimation independent of tradition or the charisma of revolutionary Party leaders whose views in the past provided the authority for policies and laws.
To be sure, many skeptics still question whether the ruling regime accepts the principle that law binds the state and state actors. Many commentators still characterize the legal system as an instrumental rule by law. Some suggest that many of the reforms are actually consistent with a more efficient rule by law, especially a softer authoritarian version than that of the Mao era. When vital interests of the Party are at stake, as in politically sensitive cases involving democracy dissidents or Falungong adherents, the interests of the Party prevail over legal niceties such as the procedural rights of the accused.
Yet there are good reasons to be skeptical about the skeptics' view. Undeniably, some of the recent reforms and developments, such as a certain amount of institution-building, greater reliance on law rather than policy, and even some devolution of power, are consistent with the view that the purpose of legal reforms is a more efficient rule by law. However, they are also consistent with a transition to rule of law. As is often the case, much turns on which side bears the burden of proof. Rule by law advocates insist that those who see a transition toward rule of law provide conclusive proof of the transition. Turning the tables, however, why assume the skeptics' view is correct? Rule by law advocates cannot show conclusively that reforms consistent with both a transition to rule of law and a more efficient rule by law are actually meant to support a more efficient rule by law anymore than others can show conclusively they are meant to support rule of law.
That said, while some of the reforms are consistent with a ruling regime bent on creating a more efficient rule by law, they are not necessary for such a system. For instance, it is not clear why the ruling regime would have had to allow for private law firms to create a more efficient rule by law. Moreover, the nature and extent of institution-building and the degree of evolution of authority call into question the view that the purpose of such reforms is simply to create a more efficient rule by law. In some cases reforms have been driven not by central authorities but by other actors within the system, who have pushed reforms in directions not anticipated by the central authorities and taken reforms beyond what was originally intended by the central leaders. Indeed, different groups and individuals are likely to support reforms for different reasons. The skeptical view tends to emphasize the purpose of central Party leaders in supporting or tolerating legal reforms, rather than the motives of other segments of the polity in backing reforms. Yet many government officials, academics and citizens no doubt support legal reforms because they believe such reforms will limit government arbitrariness and lead to better protection of individuals' rights and interests.
Moreover, while skeptics can explain away some reforms as consistent with a more efficient rule by law, other reforms cannot be dismissed so readily. The express commitment to rule of law and the efforts to establish a viable administrative law system that aims to both protect individual rights and enhance government efficiency, for instance, are at odds with the establishment of a more efficient rule by law.
Furthermore, setting a high standard for showing a credible commitment to the principle that law ought to bind the state and state actors (and hence is not rule by law) runs into similar problems confronted in the first approach. Are such failures evidence of lack of normative commitment to rule of law principles or simply evidence of a weak rule of law? Taken to the extreme, diehard skeptics will be satisfied with nothing less than the full realization of the rule of law ideal, or at least a legal system that substantially complies with their own values and biases as to what is important. Thus, some skeptics may not be satisfied until current or former leaders are held accountable and political dissidents win their free speech cases. Only then will they be convinced that there is a credible commitment to the principle that the law binds the state and state actors. Yet requiring such actions as conclusive proof of a credible commitment to rule of law demonstrates the shortcomings of this approach. The establishment of rule of law is a long-term process. No legal system can transform itself from rule by law into a fully implemented rule of law over night. All countries now known for rule of law initially went through a period in which legal institutions were weak and rule of law only imperfectly implemented at best. Although it may be impossible to pinpoint the exact moment the tide turned toward rule of law, at some point preceding the actual implementation of some reasonable approximation of the ideal of rule of law, there was inevitably a credible commitment to it. Similarly, in China, there will necessarily have been a credible commitment to rule of law long before the day when senior state leaders are held accountable and the courts decide dissident cases impartially, at which point even the most cynical skeptic will finally be willing to acknowledge that China is committed to (and indeed enjoys) rule of law. If and when that day arrives, it will be clear in retrospect that the skeptics' view during the transition period that the purpose of reforms was to create a more efficient rule by law will have been incorrect.
Alternatively, rule by law skeptics might define rule by law in terms of a much higher standard of actual performance of the legal system rather than the minimal standard of whether a credible commitment has been made to the principle that law binds the state and state actors. Yet anyone who defines rule by law in terms of a higher performance standard must define the point at which the system no longer counts as rule by law. As we have seen, it is difficult if not impossible to define the minimal conditions for rule of law with any precision.
More importantly, the distinction between rule by law and rule of law seems to be a conceptual one rather than an empirical one. A system in which law is only meant to serve as a tool of the ruling regime without binding government officials is rule by law. It seems counter-intuitive to argue that a system in which law is meant to be supreme but which falls short of that ideal in practice is for that reason rule by law.
Pragmatically, focusing on the conceptual distinction in the purpose of law rather than the extent to which law actually imposes meaningful limits on state actors provides a fairly bright line test for distinguishing between rule of law and rule by law. The legal systems of Imperial and Mao China, where law was conceived of as just a tool to achieve the interests of state and was not meant to limit the ruler or Party, are best described as rule by law. In contrast, the change in the official rhetoric to a conception of law where law is to be supreme represents a major departure from the Imperial and Mao eras. Defining rule by law in terms of the extent to which the legal system actually imposes meaningful limits on state actors tends to lead to the current system being lumped together with the legal systems of the Imperial and Mao eras, despite their significant differences.
Of course, while it may no longer be accurate to describe China's legal system as rule by law, whether the system merits the label rule of law is another matter. Perhaps the biggest objection to the low-threshold, sliding-scale approach is that rule of law is an honorific term used to praise or criticize a legal system. Thus rule of law in ordinary usage implies a certain degree of achievement. Accordingly, many people would object to calling a legal system that scored a 1 or 2 on a 10-point thin-rule-of-law scale a rule of law, just as many object to referring to China's legal system in terms of rule of law, even though it would seem to rank at least a 2 on such a scale.
In light of the many shortcomings of the legal system and the ordinary use of rule of law as an honorific term signaling a certain standard of achievement, I describe China's legal system as in transition toward rule of law but still falling short of the minimal standard of achievement required to be considered rule of law. Problems such as the treatment of political dissidents and the inability of the legal system to hold senior-most officials accountable would certainly give me pause in describing China's system as even an imperfect rule of law. But as troubling from a rule of law perspective are the many technical problems that arise in daily practice that have nothing to do with politically sensitive issues. The cumulative toll of these every day deficiencies, in my view, is sufficient to deny China's current system the title of rule of law, even allowing that there is sufficient evidence of a credible normative commitment to the principle that law is to bind the state and state actors to render the characterization of the legal system as rule by law inapposite.
Suffice it to say that while what constitutes the minimal standard of achievement for rule of law as a general matter is subject to debate, just as in some cases most people of whatever political persuasion will be able to agree that a particular object is pornographic, most commentators both within China and abroad readily acknowledge that the legal system falls well short of the minimal standard implied by the honorific label rule of law. Given the general consensus, there is no need at present to delve more deeply into the minimal conditions for rule of law. In the final analysis, little is to be gained by engaging in endless debates about which of the above approaches is more warranted. To some extent which approach one adopts will depend on one's purpose. Clearly, there is a rhetorical difference in claiming that China lacks rule of law or, conversely, that China's legal system is a weak rule of law. Government officials may prefer to argue that China has rule of law, albeit a weak one, to emphasize the difference between the current regime and previous regimes. Critics who wish to condemn China for the harsh treatment of dissidents will prefer to characterize China as lacking rule of law or as implementing a more efficient rule by law. Yet substantively, those on all sides of these debates acknowledge both progress and problems. Many are also likely to share the same goal that China's legal system more fully implement rule of law. Accordingly, those who favor the sliding scale approach can simply take my comments that China currently lacks rule of law or is in transition toward rule of law to mean that China is in the process of more fully implementing rule of law.
Imposition of a Western Ideal? The Lack of Viable Alternatives to Rule of Law
Still another approach would be to argue that because China is so different from other countries, it is likely to develop its own long-term, stable alternative to rule of law-a different kind of legal system that does not comply with the requirements of a thin theory. According to this view, my focus on rule of law is simply wrong-headed. Despite my efforts to escape imposing "Western" categories, I have still ended up doing just that by assuming that China must develop a legal system that meets the requirements of a thin theory.
Donald Clarke, for instance, raises a number of concerns about the "imperfect realization of an ideal" or "IRI" approach to comparative law, an approach that shares certain similarities with my approach, although there are also important differences. According to Clarke, under this "essentially teleological approach," the Chinese legal system is identified and measured in terms of an ideal end state chosen by the analyst. He notes that the IRI approach could work with any end state, but "in fact it is always invariably used in conjunction with an end state posited as the Western rule of law ideal. This rule of law ideal constitutes the paradigm, in the Kuhnian sense, that governs the entire enterprise of analyzing the Chinese legal system."
Clarke argues that reliance on the paradigm of "the Western rule of law ideal" (or the Ideal Western Legal Order) has several theoretical and practical drawbacks. First, it "dictates" the questions one asks, what one considers to be relevant data, and how one interprets the phenomena observed. In the naïve version, China's legal system is simply compared to idealized portrayals of modern Western legal institutions, or even more narrowly an idealized account of the U.S. system, and found wanting. In the more sophisticated version, researchers overlook important aspects of the Chinese legal system, misinterpret phenomena and either attach too much or too little importance to other phenomena. As a result, their predictions as to how the legal system will develop are likely to be wrong.
Clarke claims that practitioners of the IRI approach assume without argumentation or support "that China has legal institutions" and that the legal system is developing toward some form of rule of law:
In other words, the IRI approach assumes that we can talk meaningfully about Chinese law and legal institutions; that China has a set of institutions that can meaningfully be grouped together under a single rubric, and that it is meaningful (i.e., it clarifies more than it obscures) to label this rubric "legal" - the same word we use to describe a set of institutions in our own society. Thus, even to embark on the study of something called "Chinese legal institutions" involves an a priori assumption that China has a set of institutions largely similar to the institutions we call "legal" in our society. If the institutions were not largely congruent - if, for example, we were discussing churches or the movie industry - we would not call the institutions "legal" in the first place. More specifically, the very act of naming certain institutions involves drawing conclusions about them before the investigation has even begun. If we call a certain institution a "court," then we are claiming that this word conveys to the listener a more complete and accurate picture of the institution in question than some other word. We could equally well call the institution a "team," or an "office," or a "bureau"; the decision not to use those words represents an implicit assertion about the nature of the institution in question. The problem is that this assertion precedes, rather than follows, inquiry into the nature of the institution.
The second assumption is that these institutions are "developing." Academic articles adopting this approach are typically entitled "China's Developing Law of Contract" or something similar. By "developing" is meant moving from a more primitive and inferior stage to a more sophisticated and better stage along a trajectory of linear progress toward a well-understood end. The substantive content of this well-understood end, as I have noted earlier, is typically the Western rule of law ideal. In other words, the sophisticated IRI approach understands a particular institution now by seeing it as a nascent version of an institution in the Western rule of law ideal. We identify its imperfections in this way and we predict its future changes (which we call "development" and not simply "change").
Clarke is surely right to caution against an a priori assumption that Chinese institutions are meant to serve the same purposes as those in some Western liberal democracies. He is also surely correct to point out that we are likely to misinterpret phenomena and go awry in our predictions as to how China will develop if we impose without questioning our own modern U.S-based notion of how a legal system must function. However, while China is distinctive in some respects, it increasingly confronts similar challenges to those faced by other states with a market economy and a more pluralistic populace. China has also already become more entwined in a global economy and international legal order. Not surprisingly, there has been considerable convergence in its legal system, including with respect to the legislature, judiciary and administrative agencies. No one would confuse these institutions with churches or the movie industry, to use Clarke's examples, or even with the much more politicized entities of the Mao era.
The applicability of a thin theory of rule of law is not therefore simply the unreflective a priori imposition of a Western ideal. In fact, it is not an imposition of a Western ideal at all because there is widespread acceptance of, and support for, a legal system that meets the requirements of a thin rule of law in China. Given the convergence with respect to the purposes of the legal system, legal rules and the functions and practices of the various institutions, one can reasonably describe China's institutions as legal institutions. Indeed, it is difficult to imagine how else to describe them. To be sure, China's institutions are embedded in a very different context from that of economically advanced Western liberal democracies. Thus, there are likely to be some important differences in the institutions. But to deny that China's institutions are legal institutions simply because they differ in some ways from institutions in some modern Western liberal democracies is to assume that any institutions other than ours are not legal institutions in the proper sense. At this point, it is unlikely that China will develop a legal system so radically different as to render a thin rule of law conceptually inapplicable. China's distinctiveness is likely to be reflected in variations in thick theories compatible with a thin theory, rather than in some credible, sustainable, normatively acceptable and feasible alternative to a thin theory.
One of the problems in heeding Clarke's warning about relying on rule of law as a benchmark is that there is no other credible theory that better describes the current system. For years the alternative has been to describe China as an instrumental rule by law. But that is problematic for all of the reasons discussed previously. Whatever its descriptive inadequacies, rule by law is even less useful as a normative goal for future reforms. It should be noted that Clarke does not endorse rule by law as an alternative description; nor does he in the works cited set out to present a systematic alternative interpretation or theory to the rule of law paradigm.
This is not to claim that Clarke or someone else could not come up with a new theory that better describes the system than "the Western rule of law ideal." In fact, if by the Western rule of law ideal one means Liberal Democratic rule of law, then I fully agree that any of the three alternatives discussed herein and possibly others as well are likely to be more useful for understanding the future path of development in China (though all are still rule of law theories). Although Clarke claims that the main problem with the IRI approach, "is that its practitioners tend to leave unstated and unjustified its most crucial component: the ideal against which the Chinese legal system is identified and measured," Clarke himself never defines in any detail what he means by "the Western rule of law ideal." As we have seen, rule of law is a contested concept, even in the West. In thinking about the role of law in China and the possible path of future development, it is necessary to distinguish between thin and thick theories and between different types of thick theories. By so doing, predictions about rule of law in China become more open-ended and less teleological (although obviously the standards of a thin theory, while allowing some diversity in institutions and practices, are teleological in nature).
Why We Can't Simply Abandon Rule of Law Talk or Reserve Rule of Law for Liberal Democracies
In light of the many different interpretations of rule of law, might it not be best simply to abandon reference to rule of law altogether? Wouldn't it be more useful to adopt, for instance, a "microanalysis approach"? Microanalysis tries to avoid or at least minimize generalizations, metaphors and conceptualizations as explanatory mechanisms. Rather, micro-analysts attempt to describe the way actions of independently motivated individuals create social systems by tracing the way individual actions aggregate to produce larger social structures and institutions.
While there is considerable merit in the suggestion that what matters most is not the label but the substance of particular legal reforms in China, abandoning reference to rule of law is neither possible nor desirable. As a practical matter, people both in China and abroad will continue to invoke rule of law. Given that fact, it is better to try to bring some clarity to the different uses of the term, by distinguishing between rule by law and rule of law and between thin and thick conceptions of rule of law and different types of thick conceptions, than to insist futilely that the term be avoided altogether.
Moreover, legal reformers have pragmatic reasons for referring to rule of law in that the normative appeal of rule of law may be used to support controversial legal and political reforms. Indeed, one of the reasons PRC scholars prefer thick conceptions to thin conceptions is that thick conceptions allow them to discuss topics that would otherwise be too sensitive to approach directly. For instance, bringing democracy and human rights under the umbrella of rule of law may open up discussion of sensitive topics such as multiparty elections, separation of powers and freedom of thought.
In addition, rule of law provides a useful heuristic guide for legal reforms in that the elements of a thin (or even thick) theory may be used to clarify and prioritize areas in need of reform and to see the relationships between the various elements. It provides some structure to what otherwise could be a chaotic, piecemeal reform process.
Assuming then we cannot abandon rule of law talk altogether, perhaps we could limit rule of law to only the Liberal Democratic version. After all, given that "rule of law" has become associated with Liberal Democratic rule of law, one might argue that the term should not be stretched to include other variants. When talking about China, one should simply forgo use of rule of law in favor of other terms.
Obviously, one is free to reserve the label "rule of law" for a particular version if one so chooses. However, one problem with this approach is that forcing PRC ideas about rule of law into our prevailing yet contingent categories smacks of cultural imperialism.
Second, the debate about legal reform in China has been couched in terms of rule of law, both in China and abroad. Again, one could protest every time the term rule of law is used or at least point out that the term is being misused. But given that "rule of law" is a contested concept even in the West, any attempt to appropriate the term for a particular usage will be futile: the debate will continue to be posed in terms of rule of law, both by those inside and outside of China. Rather than restricting the use of the term with respect to China, it is more useful to try to figure out what those who use the term mean by it and why they want to invoke it. How one defines rule of law will depend on what one's purpose is. Investors, governments and multilateral agencies, NGOs, moral philosophers and political scientists all have different purposes for invoking rule of law, and may therefore find some ways of defining or measuring it more suitable to their particular purpose than others. That does not mean that they are free to define rule of law as they like. Enough people in the relevant discourse community must accept the usage for the speech act to be meaningful for the definition to serve a useful purpose. There is, however, enough common ground to the various conceptions of rule of law, provided by the basic requirements of a thin rule of law, to render the invocation of rule of law in the Chinese context intelligible and useful.
Third, as just noted, many reformers in China want the debate couched in terms of rule of law for strategic reasons: rule of law entails at minimum some restraints on government leaders and opens up other possibilities for political reform.
Fourth, simply relying on either Liberal Democratic rule of law versus rule by law is no longer sufficient to capture what is happening in China. It is descriptively incorrect-the legal system is no longer a pure rule by law. Nor can we capture all of the nuances in the PRC debates about rule of law if we only have the overly simplistic categories of rule of law (i.e. our Liberal Democratic version) or else rule by law. Without more refined categories, we simply will not be able to understand what is happening, either in terms of the evolution of PRC discourse or in practice with respect to the development of the legal system.
Fifth, the practical import of forcing PRC discourse and practice into our preconceived boxes of Liberal Democratic rule of law or authoritarian rule by law is that we are likely to come to the wrong conclusions about reforms. We are likely to be either too pessimistic or too optimistic-either there is no fundamental change, or China is becoming "like us" in some modern Western liberal democracies. But neither seems to be the case. Misreading what is happening is likely to lead to bad policy choices. Foreign governments and aid agencies could miss opportunities to support reforms that would improve the PRC system, for example, by failing to provide adequate resources for certain reforms because they do not believe such changes could possibly work in a rule by law system meant to serve the interests of the Party and nothing more. Alternatively, time and resources could be wasted on projects that are not consistent with the form of rule of law likely to emerge in China. Some rules or practices that work in the context of a Liberal Democratic rule of law might require liberal institutions and perhaps liberal values to succeed. They may fail to take hold in a different legal order, exacerbating the gap between law and practice.
Finally, objecting to the application of rule of law to China and other states that are not liberal democracies overstates the differences and fails to capture the considerable agreement with respect to the basic elements of a thin rule of law. Despite considerable variation, all four variants of rule of law accept the basic benchmark that law must impose meaningful limits on the ruler, and all are compatible with a thin conception of rule of law. Predictably, as legal reforms have progressed in China, the legal system has converged in many respects with the legal systems of well-developed countries; and it is likely to continue to converge in the future. At the same time, however, there will inevitably be some variations in rule of law regimes even with respect to the basic requirements of a thin conception due to the context in which they are embedded. Hence signs of both divergence and convergence are to be expected. Indeed, whether one finds convergence or divergence depends to a large extent on the particular indicators that one chooses, the time frame and the degree of abstraction or focus. The closer one looks, the more likely one is to find divergence. That is, however, a natural result of narrowing the focus. Distinguishing between thin and thick theories and different thick theories helps identify the similarities and areas of convergence while acknowledging and explaining the differences.
From Theory to Practice: Are Non-Liberal Democratic Rule of Law Systems Sustainable?
A frequent objection is that while it is possible conceptually to distinguish between these different types of rule of law legal systems, in reality rule of law is only sustainable in countries that adopt liberal democratic institutions and values. Yet Singapore and Hong Kong, among others, are examples of non-democratic, non-liberal countries that have enjoyed rule of law, and contemporary Japan, Taiwan and South Korea seem to be examples of a Communitarian rule of law. While an adequate discussion of whether or not these categories do in fact apply to these countries and if so whether they are the best way to characterize the legal systems would take us far afield, a few further comments may help clarify some of the main issues.
Critics might argue that the use of the legal system to harass opposition politicians demonstrates that Singapore does not merit the label of rule of law, and calls into question whether a non-democratic rule of law is in fact possible. Of course, all systems fall short of the ideal of rule of law, and Singapore is no exception. At times judiciaries reach decisions that reflect a degree of politicization that is hard to reconcile with rule of law. Many would argue that the U.S. Supreme Court's recent intervention in the Gore-Bush election controversy in Florida was one such instance. However, the nature of executive interference with the judiciary in Singapore arguably constitutes a difference in kind rather than simply degree, and therefore Singapore does not merit the honorific "rule of law" at all. Others, emphasizing all of the ways in which the Singaporean legal system does meet the standards of rule of law, may conclude that such shortcomings simply demonstrate that Singapore's legal system falls short of the ideal and yet on the whole may still be characterized as a rule of law, albeit an imperfect one. For those in the latter camp, Singapore will be an example of a sustainable non-liberal democratic rule of law. For the former group, Singapore will be further proof of the limited ability of law to limit state actors in non-liberal democratic state.
Of course, even if Singapore is not a good example of a non-democratic, non-liberal rule of law, Hong Kong would appear to be so. Granted, Hong Kong may be a special case, having had the benefit, as it were, of colonial rule by the British. Nevertheless, while many commentators predicted that Hong Kong's reversion to PRC control would result in the demise of rule of law, most now agree that Hong Kong has continued to enjoy rule of law even after the handover. Undeniably, there have been bumps in the road, attributable in part to the differences between Hong Kong's common law system and the more civil law system of the PRC as well as the sheer complexity of operating a legal system based on the historically unprecedented principle of one-country, two systems. Moreover, some of the developments since reversion reflect the more conservative policies of the new administration (though it bears noting that Hong Kong was hardly a bastion of liberal democracy under the colonial rule of the British). Yet the judiciary remains independent. Beijing has been reluctant to intervene, doing so only when forced to by the arguably rash actions of the Court of Final Appeals and Chief Executive Tung Chee-hwa in the infamous illegal immigration case.
It goes without saying that Hong Kong differs from the mainland in many ways. Skeptics could still claim that as a general rule establishing and maintaining rule of law requires democracy. Indeed, one could argue that whatever the general practice, China is an unlikely candidate to implement and sustain rule of law without democracy given the limits of socialist ideology and the Party's commitment to single party socialism and maintaining its grip on power. Ultimately, the key to the future realization of rule of law in China is power. How is power to be controlled and allocated in a single party socialist state? To the extent that law is to limit the Party, how does the legal system obtain sufficient authority to control a party that has been above the law? In a democracy, the final check on government power is the ability of the people to throw the government out and elect a new one. In the absence of multiparty democracy, an authoritarian government must either voluntarily relinquish some of its power or else have it taken away by force. Naturally, Party leaders will resist giving up power so readily. They may therefore be disinclined to support reforms that would strengthen rule of law but also allow institutions to become so powerful that they could then provide the basis for challenging Party rule. The result may be that, at least on those issues that threaten the survivability of the Party, the needs of the Party will continue to trump rule of law for some time - though of course most of the issues confronting legal actors on a daily basis do not threaten the Party.
I have argued elsewhere that there are reasons to believe that the issue of power can be resolved in favor of rule of law and that law will come to impose meaningful restraints on Party and government leaders. Briefly put, the development of the legal system hinges on more than the ideas of the top leadership. Legal reforms will continue to be driven to a considerable extent by objective forces, including the needs of a market economy; the demands of foreign investors and domestic businesses; the Chinese citizenry's desire for justice; international pressure, as evidenced in the amendment of the Criminal Law and Criminal Procedure Law and China's accession to various human rights treaties; GATT requirements, once China becomes a member of the WTO; and the ruling regime's desire for legitimacy, both at home and abroad. All of these forces, taken collectively, are likely to exert a much stronger force on the pace and trajectory of legal reforms than the wishes of some senior leaders who may be lukewarm about implementation of rule of law.
Twenty years ago, few would have predicted that China's legal system would have developed to the degree that it has. Given the remarkable progress, skeptics who deny any fundamental change in the basic nature of China's legal system seem unduly pessimistic or cynical. On the other hand, liberals who think China is on the way to establishing a liberal legal system of the kind found in Western democracies seem at once overly optimistic and under-appreciative of differences in fundamental values that have led many Asian countries to resist the influence of liberalism in favor of their own brand of "Asian Values" (differences which remain even after we discount the self-interested claims of leaders of authoritarian governments).
I suggest a middle ground. While the footprint of the system's instrumental rule by law heritage remains visible, there is considerable evidence of a shift from a legal regime best characterized as rule by law toward a system that complies with the basic elements of a thin rule of law. Even assuming, as appears to be the case, that China is moving toward rule of law, which form is most appropriate for China remains hotly contested. There is little evidence of a shift toward a Liberal Democratic rule of law. China is not likely to embrace democracy in the near future, for a variety of reasons. In the long run, however, China may need to allow genuine democratic elections to enhance accountability and to provide a peaceful mechanism for alleviating growing social cleavages. But even if China becomes democratic, it will not necessarily become a liberal democracy or adopt a Liberal Democratic form of rule of law.
(The author is Acting Professor of Law at University of California at Los Angeles.)