© The Author(s) 2015Katrin BlasekRule of Law in ChinaSpringerBriefs in Law10.1007/978-3-662-44622-5_1
Technical University of Wildau, Wildau, Germany
Rule of lawCalls for rule of lawUnderstanding of rule of lawWestern civilizationSocialist legal systemChinese characteristics
1.1 Calls for Rule of Law
When looking into the younger history1 of China,2 many calls are found concerning, in one way or another, the rule of law. The need to further improve the rule of law was expressed not only by foreign entrepreneurs, especially by those from the Western hemisphere, but also by other representatives of the so-called Western civilization (see Sect. 1.1.1). China officially called expressly or in other ways for “rule of law,” too (see Sect. 1.1.2).
1.1.1 Western Calls
Since Deng Xiaoping started the policy of reform and opening up in 1978, several Western institutions have urged China to adhere to the rule of law.
Two prominent policy papers published in 2012 may serve as example. One is the “Business Confidence Survey” initiated and published by the European Chamber of Commerce in China (EUCCC). It shows that the interviewees, European entrepreneurs and companies, consider the “rule of law”3 as the most important among five top drivers for China’s economic performance in the coming years.4 The survey shows
The development of the rule of law and more transparent policy-making and implementation is rated as the most important driver for future Chinese economic growth.5
Shortcomings of the rule of law6 in China are one of the reasons for nearly a quarter of respondent companies to consider moving existing investments out of China.7
The other important policy paper “China 2030”8 has been issued jointly by the World Bank and by the Development Center of the State Council of China (see further Sect. 1.2). It heralds
China’s economic performance over the past 30 years has been remarkable. It is a unique development success story, providing valuable lessons for other countries seeking to emulate this success9
But the same authors warn Chinese leaders that to continue the economic progress and
to become a modern, harmonious, and creative high-income society by 2030… China must change its policy and institutional framework.10
To achieve a sustainable development, the authors of “China 2030” propose six targets for China’s new development strategy, one concerning the “rethinking of the role of the state…in the economy.”11 More precisely, to achieve sustainable growth
the government will need to transform itself into a lean, clean, transparent, and highly efficient modern government that operates under the rule of law.12
Both papers name the rule of law as a cornerstone for China’s future prospects. Like many other policy papers, they do not come up with a definition of the rule of law. They confine themselves for mentioning constituent elements of it, e.g., legal certainty.13 These elements will be analyzed and evaluated from a legal point of view at the respective section of this paper.
1.1.2 Chinese Calls
As shown, the World Bank and one body under State Council of China have jointly expressed their opinion that sustainable economic development requires a “government that operates under the rule of law.” Before that, Chinese leaders themselves have called many times for development of the rule of law as a whole or of certain elements of it (see Sect. 2.2). Actually, these calls have started soon after the policy of the reform and opening up was begun in 1978. Obviously, the concept of rule of law must have seemed new and strange to many of the Chinese leaders, since it contrasted tremendously with the old system. Thus, statements from that time often do not explicitly refer to the rule of law, but link the concept to other principles like democracy or the legal system as such.
For example on December 13, 1978, Deng Xiaoping stated at the Central Working Conference:
To ensure people’s democracy, we must strengthen our legal system. Democracy has to be institutionalized and written into law, so as to make sure that institutions and laws do not change whenever the leadership changes, or whenever the leaders change their views or shift the focus of their attention. The trouble now is that our legal system is incomplete, with many laws yet to be enacted. Very often, what leaders say is taken as the law and anyone who disagrees is called a law-breaker. That kind of law changes whenever a leader’s views change.14
Deng clearly recognized that the execution of power in China had to be disconnected from the personal opinions of its leaders. Leaving aside the discussion on Deng’s interpretation of “people’s democracy,” he obviously calls for supremacy of law thereby referring to one of the core elements of the Western understanding of the rule of law (see Sect. 2.2).
Deng’s proclamation has since then been repeated by various Chinese leaders in varying words, such as a government “in accordance with the law,” the adherence to “rule of law” or the establishment of a “socialist rule of law” or “rule of law …” or “legal system with Chinese characteristics.”
For instance, Jiang Zemin, one of Deng’s successors, stated in 1997 the governance of the country in accordance with the law essential for the development of China:
The smooth progress of the undertakings of the Party and the state inevitably requires that there must be laws to go by, that the laws must be observed and strictly enforced, and that law-breakers must be prosecuted. We shall strengthen legislation, improve the quality of laws and form a socialist legal system with Chinese characteristics by the year 2010. We must safeguard the dignity of the Constitution and other laws; we must see to it that all people are equal before the law and that no individuals or organizations have the privilege to overstep it. All government organs must perform their official duties according to law, guarantee in real earnest the citizens’ rights and implement the system of responsibility for law enforcement and the system of assessment and examination in this regard.15
Two years later, in 1999, China formally introduced the rule of law in its Constitution.16 In order to emphasize that China must not copy any other country’s system or concept of a rule of law, it was introduced as a rule of law with Chinese characteristics. Chinese scholars use historical, cultural, ideological, and political reasons to justify this specification.17
Under Jiang Zemins reign, in 2000, China signed an agreement with the UN for cooperation and training on individual rights and rule of law.18
Also the then Chinese president and successor of Jiang Zemin, Hu Jintao, observed, that:
We must build a system based on the rule of law and should not pin our hopes on any particular leader.19
And in 2012 on the occasion of the 30th anniversary of the Chinese Constitution, the actual president of China, Xi Jinping, also confirmed that:
No organization or individual has the privilege to overstep the Constitution and the law, and any violation of the Constitution and the law must be investigated.20
The most recent policy papers concerning the development of the rule of law in China are the White Papers 2008 and 2011 both issued by the State Council Information Office. In “China’s Efforts and Achievements in Promoting the Rule of Law” (White Paper 2008) expressly points to the rule of law is explicitly mentioned:
The development of democracy and the rule of law still falls short of the needs of economic and social development;…