© The Author(s) 2015Katrin BlasekRule of Law in ChinaSpringerBriefs in Law10.1007/978-3-662-44622-5_3
3. Rule of Law in China
Technical University of Wildau, Wildau, Germany
Socialist country of lawSocialist rule of lawChinese characteristicsLeadership communist partyCPCSocial stability
The concept of rule of law is comparatively new to China. It came into focus only at the beginning of the twentieth century when the imperial system of power collapsed.1
China did not experience the struggle for individual freedom that was seen in the West. (See Sect. 2.1) Rulers were replaced and dynasties overthrown, when they had lost the “mandate of heaven,” but the imperial system as such was rarely contested—may be because a certain degree of political participation and social mobility was granted by way of the civil service examinations.2 In contrast to Europe under imperial power, Chinese enjoyed especially a very strong economic liberty and political equality. Chinese were not kept in feudal social strata3 and even poor-born people could make their way out and become wealthy.4
When Sun Yatsen founded the Republic of China, he even believed that Chinese already enjoyed too much freedom and that individual liberties had to be limited in favor of a stronger Chinese nation5 (see for human rights understanding in present-day China Sect. 4.3.3).
How to define the rule of law in or for China is at least as much contested as in the Western world.6 Statements vary from “constrain[ing] the arbitrary act of the government” to “facilitate[ing] and ensur[ing] economic development,” from “protecting individuals against the state” to “provid[ing] fair mechanism for resolving disputes….”7 Some scholars suggest that the rule of law contains seven to ten principles or elements. Among them are the principles of freedom and equality, an independent judiciary, strict supremacy of law and its effective supervision, the protection of human rights, principle of balance of power but also the principle of leadership of the Communist Party of China (CPCh).8
Officially, the concept of the rule of law has been described soon after the beginning of reform policy in 1979 by Deng Xiaoping:
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.9
Later on, Jiang (1997) stated in a much more sophisticated way:
Ruling the country by law means that the broad masses of the people, under the leadership of the Party and in accordance with the Constitution and other laws, participate in one way or another and through all possible channels in managing state affairs, economic and cultural undertakings and social affairs, and see to it that all work of the state proceeds in keeping with law, and that socialist democracy is gradually institutionalized and codified so that such institutions and laws will not change with changes in the leadership or changes in the views or focus of attention of any leader.10
Both statements suggest a legal system in which the government will abide by the law, thereby mentioning a key element of the Western notion of the rule of law.11
Although the Chinese legal community in the early 1980s started calling for the development of the rule of law, it was officially endorsed by the Chinese Government only in 1996.12 The call was a response to the governments practice to review and approve cases handled by the judiciary and lead to a nation-wide debate on the rule of law versus the rule of man.13 It finally resulted in an amendment of the Chinese Constitution in 1999. Art. 5 par. 1 of the Constitution was amended as follows:
The People’s Republic of China practices ruling the country in accordance with the law and building a socialist country of law.
The reason why the socialist rule of law or rule of law with Chinese Characteristics was introduced in 1999 is not only the mentioned dissatisfaction with the government’s interference in the work of the judiciary and the lessons learnt from devastating ideological decisions of a few high-ranking people, like the big leap forward leading to starvation of millions of Chinese14 or like the Cultural Revolution which threw the country into chaos and drastically curtailed personal freedoms.15 Besides, other reasons such as improving the social conditions and living standard of the people by improving the economy and benefitting from the effects of globalization, as well as China’s desire to enter the WTO were important drivers to put forward the development of the rule of law in China.16
Today, the rule of law is a popular and frequently used term in China. Considering the impact of the Chinese legal tradition and the younger history since 1949, especially the legal anarchy during the Cultural Revolution, as well as the leading role of the CPCh,17 it would be adventurous to expect the rule of law in China to become a reprint of its Western counterparts.