The idea of separation of power which in modern society traces back mainly to Locke and Montesquieu is based on a certain idea of man. According to this idea, on the one hand, human beings enjoy individual human rights (basic rights). On the other hand, human beings—even if they get public authority—might fail or misuse their power.¹⁷ So the idea of separation of powers is posited on the existence of three distinct functions of government (the legislative, executive, and the judicial functions) and the conviction that these functions should be kept apart in order to prevent the centralization of too much power.¹⁸ By separating powers, the misuse shall be limited and the violation of individual rights by the state shall be avoided.

Il n’y a point encore de liberté si la puissance de juger n’est pas séparée de la puissance legislative et de l’executrice.¹⁹

The different systems of the separation of power in Germany, France, and the United Kingdom do have strong impact on the lawmaking and the accessibility and transparency of the law.

In simple words, the separation of power in Germany means that the legislator only issues rules, the executive only applies the rules, and the courts only judge on the basis of the rules. In terms of legislation, this means that in principle, only one legislator—on federal or state level—issues the law. There are very few exceptions where the executive power is authorized to issue regulations to further specify the laws. But the content, purpose and scope of the power conferred shall be specified in the law²⁰ and must not be exceeded (for control by court, see Sect. 4.2.2). This provision ensures that the legislation can in any case be controlled by the only power (parliament) which is legitimated by the people. To summarize, all power to legislate is given to the parliament. Every power of the executive derives from the legislative (the parliament), meaning that the executive does not have original legislative power.

This legislative structure means that in Germany, basically one legislator (parliament) is active and that his actions have to be observed. All effective rules²¹ and all related court decisions are easily accessible. They are available via online databases²² or are collected in regularly updated commentaries to the respective rules. Any interested party²³ can therefore easily access all effective laws and court decisions.²⁴ In particular, the regularly published and updated commentaries are very useful tools. In principle, rules or decisions which cannot be found in the mentioned small number of free databases are not effective any more or do not exist. This makes it for lawyers and citizen comparatively comfortable to oversee the law consisting of a limited number of laws and regulation, to find the right provisions and to build a reliable opinion on the legal status. The downside of the German legislative system might be the lack of flexibility in addressing unforeseen problems or adjusting legislation.²⁵

In France, especially due to the mentioned rationalized parliamentary system²⁶ and due to the fact that the President is elected directly by the people, the executive enjoys much more legislative power than in Germany. While in Germany, the legislative power is assigned to the parliament and the executive has in any single case to be empowered by the parliament to further implement the laws, in France, executive bodies enjoy broad originary legislative power. According to article 37 of the French Constitution, all matters that are not explicitly reserved to the parliament fall into the responsibility of the executive power. The exclusive competences of the parliament are limited by the enumeration in article 34 of the French Constitution. Moreover, according to article 21 of the French Constitution, without any special enabling act of the parliament, the Prime Minister²⁷ can issue rules (règlement, décret or ordonnances) to implement the laws (lois). In addition, under certain circumstances, the government can issue ordonnances in matters assigned to the parliament, thereby temporarily replacing it.²⁸ This legislative system means much more flexibility to address pressing problems by way of rule-making. However, this means too that citizens must deal not only with “lois” but also with a large amount of regulations enacted by the executive power, such as law implementing règlements, décrets, or ordonnances, ordonnances substituting later laws, and règlements, décrets, or ordonnances based on the originary rule-making power. Nevertheless, to keep track of the legal status is possible. First, all French legislation is collected and can be found at http://​www.​journal-officiel.​gouv.​fr. Moreover, for laws which are implemented or supplemented by regulations of the executive, a new form of codification has been established, the so-called codification administrative, containing and citing the respective laws and regulations (e.g., Art. L. 11, Art. R. 11, Art. D. 11) thereby making the legal status transparent. Legislation can be found in combination with helpful commentaries in leading law journals. All court decisions are publicly available as well.²⁹ Building a reliable legal opinion on the legal status is possible as well.

In contrast to Germany and France, in the United Kingdom, the so-called Common Law system applies, a legal system which is much more complicated than the Civil Law systems in Germany and France. Due to space limit, it cannot be reflected in detail. To accomplish the purpose of this paper, it has to pointed out that under United Kingdom constitutional law, it is recognized that the parliament has the power to enact, revoke, or alter such, and any, law as it sees fit.³⁰ Of particular importance is the delegated legislation, made by persons or executive bodies to whom parliament has delegated its general lawmaking power by way of enabling acts.³¹ The output of delegated legislation each year greatly exceeds the number of Acts of Parliament.³² Statistically, in a simple quantitative comparison, delegated legislation seems more important than primary Acts of Parliament.³³ The advantage of the rules made by the enabled executive bodies is obvious: Delegated legislation can be introduced quickly and can easily be responsive to emergencies or unforeseen problems. A disadvantage is seen in a limited accessibility of law. It should be recalled that the reasoning behind the requirement of accessibility is that if everyone is bound by the law (see Sect. 4.2.1), everyone must be able to find out what the law is and how one has to behave to comply with it without undue difficulty.³⁴ But the sheer mass of such legislation makes it difficult to keep track. And as Slapper/Kelly point out: If parliamentarians cannot keep up with the flow of delegated legislation, how can the general public be expected to do so?³⁵ However, delegated legislation is controlled by the courts and can be declared void when the executive bodies exceed the limited delegated powers (see Sect. 4.2.2). Moreover, the so-called Joint Select Committee on Statutory Instruments watches over and scrutinizes all statutory instruments, drawing special attention of the parliament, for example, where there is doubt whether delegated legislation is intra vires.³⁶ Besides that, the Law Commission, a body responsible for general and systemic reform of the law, cares of the consolidation of law leaving the law itself unchanged.³⁷ Thus, those who use it are able to find the law all in one place.³⁸

In contrast to Germany and France, the United Kingdom practices a common or case law system. Its basis is a doctrine of binding precedents or stare decisis. Judges create law simply by judging cases. Strictly speaking, the judiciary works as a legislative power. The binding effect of precedents requires extensive reporting service to guarantee access to all previous judicial decisions. This access is possible via many yearbooks and law reports as well as via online databases.³⁹ Despite the fact that binding case law is an opportunity to develop law in a uniform and predictable manner⁴⁰ without waiting for parliament to enact legislation,⁴¹ disadvantages are seen as well. The stare decisis is undermined by the sheer number of cases that are being publicized and can be cited as authoritative.⁴² This does not make it easy for interested parties to keep track and to overlook the legal status. Moreover, the binding effect only applies to the ratio decidendi and not to obiter dicta.⁴³ And since courts do not separate their decisions into these two categories, it can be a difficult task to sort them out.⁴⁴ Besides that, the lawmaking power of courts is criticized as unconstitutional because the judiciary oversteps its theoretical constitutional role by making law rather than simply applying it.⁴⁵ But this critic has to be seen in conjunction with the less strict interpretation of the separation of power idea in the United Kingdom.

There are many historical, ideological, and practical reasons for the concentration/unity of power in China.

Philosophy and political theory in China look back upon a long tradition of organizing harmony within a society. In Confucian thinking, harmony was achieved by respect paid to the superior and care provided to the inferior. The Confucianists preferred to trust in a good and benevolent ruler and the absolute power of a person (i.e., the emperor). In this system, the absolute ruler was legitimated by the mandate of heaven (天命 tianming), he owed care to his people, and they owed respect to him—as long as he held the mandate of heaven. Moreover, Confucius and his followers believed in prosperity for the society to be achieved by the ruler (see further Sect. 4.2.3.2), failing rulers could be overthrown.⁴⁸ Thus, the rule of the emperor was justified and all legislative, executive, and judicial power was legitimately concentrated in the emperor’s hands.

This concept hardly changed through the founding of the Republic of China⁴⁹ and the People’s Republic of China. Nowadays, China’s Communist Party stresses the aim of a “harmonious society.” It ranks the interests of the whole society or nowadays the objective of “socialist harmony”⁵⁰ much higher than the basic rights of the individuals.⁵¹ Moreover, it is still claimed that prosperity for everyone will only be achieved under the guidance of the CPC.⁵²

Even the great reformer Deng Xiaoping, who adopted much from the economically successful Western world, held the Western understanding of democracy and the concept of a separation of power unsuitable for China:

In developing our democracy, we cannot simply copy bourgeois democracy, or introduce the system of separation of powers. […] We cannot do without dictatorship.⁵³

The “concept of dual competence” supports Deng’s opinion. It is based on Karl Marx’s theory of unity of decision-making and implementation⁵⁴ (in Chinese 议行合一 yixing heyi). Later, leaders of China did not question Deng’s denial of separation of power. Today, the Constitution of the People’s Republic of China grants eternal and unchangeable leadership⁵⁵ to the Communist Party of China (CPCh), which thereby still stands above the law.⁵⁶

The concept of dual competence, Deng’s aversion against the concept of separation of powers, and the lack of checks and balances are regarded as outdated and backward by Chinese scholars.⁵⁷

Instead of separation of power, in China, we find democratic centralism. This term describes a system, in which all administrative and judicial organs are created by the people’s congresses to which they are responsible and by which they are supervised.⁵⁸ That explains why the SCPC has the authority to interpret the constitution and laws and to intervene in the area of judiciary. However, this principle does not explain why the State Council (executive) and the SPC (judiciary) and SPP (executive) have got legislative power.

Granting legislative power to the State Council in the first Chinese Constitution of 1954 is illustrative for the Chinese mentality of rule-making, its distinction between the formalistic and symbolic use of primary legislation, and the flexible and pragmatic use of sub-statutory rules (see Sect. 4.4.3). Until today, hundreds of administrative regulations issued by the State Council and its numerous departments and commissions are regarded to

“occupy an important position by elaborating and supplementing the laws” and to “play an important role in the implementation of the Constitution and laws, … the promotion of … balanced and sustainable economic development.”⁵⁹

The Chinese Constitutions never provided the judiciary with legislative power. The reason why SPC and SPP got (limited) legislative power was simply the lack of legal qualification especially within the SCPC. From 1949, when the Communist Party took over, until 1978 for many reasons China neglected legal training and legal professions were repressed.⁶⁰ This resulted in a lack of qualified lawyers. The gap was filled by institutions who claimed to have the best lawyers of the country available. In particular, after Deng started his policy of reform and opening up, the members of SPC and SPP quickly had to draft rules implementing the vague laws to convince foreigners to invest their money in China. And it worked out: Until 2004, the SPC issued more than 2,500 judicial interpretations, whereas the SCPC issued 14 interpretations of law only⁶¹ and has not issued a single interpretation of the constitution until today.⁶²

So in today’s China, a separation of power only takes place in terms of organizational structure (different bodies in different houses) but not in terms of functions or persons (legislation in all houses made by members of the CPC). Instead of separation of power, there is a division of duties.⁶³

The Chinese understanding of unity of power produces many rule-makers/legislators.

The power to issue rules is conferred to

This enumeration only reflects the central level, and it is true for the lower levels (provinces, autonomous areas, big cities such as Beijing, Tianjin, Shanghai, and Chongqing) as well.

The “full parliament” (People’s Congress) the only parliament that legitimately represents the whole Chinese people convenes only once a year only for about 2 weeks, always in March (March Parliament). It has got the power to enact and to amend basic laws governing criminal offenses, civil affairs, the state organs, and other matters,⁶⁴ whereas its Standing Committee (SCPC) shall only enact and amend laws, with the exception of those which should be enacted by the National People’s Congress.⁶⁵ In other words, the SCPC does not have the power to issue laws of basic content. Since the SCPC only comprises 5 %⁶⁶ of the members of the March Parliament, this provision makes much sense. Nevertheless, in practice, the SPCP is the more active lawmaker in China, since it is the only permanently working body. The vague wording of the constitution makes the line between “basic laws” and non-basic laws difficult to draw. So far it has not been defined clearly in theory or practice (see in detail Sect. 4.4.3). Moreover, the power to interpret the constitution and the laws—a power which would in a system of separated powers be reserved for the judicature only—has been assigned to the SCPC.

Another—not in theory but in practice—very powerful legislator is the State Council. It consists of numerous departments (ministries and commissions) which all have the power to adopt administrative measures, enact administrative rules and regulations, and issue decisions and orders (all further named “regulations”) in accordance with the constitution and the law.⁶⁷ The State Council issues hundreds of regulations every year. It has got the power to enact every provision which is deemed necessary.⁶⁸ Since many provisions in laws are very vaguely drafted, this power seems necessary from the practical point of view.

Moreover, the “two parliaments” may assign other functions and powers to the State Council.⁶⁹ They have assigned their legislative power in a number of times to get around their own much more complex legislative procedure and to prevent legislation getting stuck in laming fights of interests.⁷⁰ In particular, investors have to deal with the result of this assigned legislation power, the so-called tentative regulations (zanxing de guiding 暂行的规定 or zanxing de tiaoli 暂行的条例). Briefly summarized: One could name the State Council—a by people non-legitimated body—the real legislator of China.

Finally, in China, the Supreme People’s Court (SPC)—in a pure reading of the separation of power (see Sect. 4.1.1.1) restricted to the third power: judiciary—and the Supreme People’s Prosecution (SPP)—usually seen as belonging to the executive—act as legislators as well. Laws and resolution of SCPC endow both with the power to issue interpretations to implement laws and regulations for the purpose of their trial or prosecutive work. Like other laws and regulations, these judicial interpretations have binding effect albeit it is limited to the mentioned functions and bodies. Notably, the constitution does not mention the power of SPC or SPP to legislate or to be assigned with legislative power of others at all. The Chinese Legislation Act which was promulgated in 2,000 does not mention the judicial interpretations, neither. Legal force of SPC’s and SPP’s interpretations was claimed by the institutions themselves. That the judiciary thus rules its own matters is unthinkable in a system of separation of powers. However, the good thing is that the interpretations made by SPC and SPP are often of better quality than the most of their respective administrative rules they interpret. They touch more issues, tend to be more precise in their wording, and often follow clearer structures. Still, especially, the SPC often exceeds its power by issuing interpretations which violate superior laws or regulations (see below).

Thus, the mentioned variety of legislators issue or amend huge numbers of rules every year. This makes it difficult to keep track of the legislative activities in China. How to find all effective rules and related decisions? The publication of rules, thus the transparency of the Chinese law, has been remarkably increased since China’s accession to the World Trade Organization.⁷¹ But there is still no official or officially supported database in China containing all effective rules. There are also no regularly updated law textbooks containing the effective rules of a certain area of law. Still, the majority of the rising number of judgments is not published. Only a small number of cases are collected and published in case books or provided online.⁷² Providing decisions upon request is still not common practice of courts or authorities in China. To ease the time-consuming search for the relevant laws, regulations, and judicial interpretations and to get a roughly reliable picture of the legal status in China, one must get access to commercial databases which still do not contain every effective rule or every judgment. Examples of those databases are “beida fabao” or “China law & practice” offering a single-user license for about 2,000 USD per year. The fact that not only foreign but also Chinese law firms buy those accesses shows that checking the legal status in China is not a question of Chinese language knowledge but a question of transparency and accessibility.

Moreover, there are bodies issuing rules without any power to do so according to Chinese Constitution and Legislation Act. For instance, the Beijing High People’s Court issued in 2002 “Explanations”⁷³ and in 2004 “Answers”⁷⁴ on very important issues concerning the application of laws on Intellectual Property, thereby implementing higher laws. Practitioners must deal with rules like these, although they are obviously illegal. In practice, the lack of independence (see Sect. 4.5.3) may force judges to follow these rules.⁷⁵ Any interested party therefore needs to consider these rules as well. Moreover, the huge number of rule-makers produces due to many reason⁷⁶ not only double rulings but worse many rules that are contradictory in content or are inconsistent with higher rules.⁷⁷ In the past, especially, the SPC repeatedly issued interpretations in contrast to legislative rules of the People’s Congress or its Standing Committee⁷⁸ and thereby violated the primacy of superior rules.⁷⁹ For example, Sect. 9 of the Chinese Property Act 2007 (物权法 wuquanfa) states that the property right on movables comes into existence by registration. In contrast, sec. 1 par. 2 of the SPC Interpretation of May 15, 2009 states that People’s Courts can declare non-registered persons as right holders. By ruling so, the SPC disregards the constitutive effect of registration which is clearly laid down in the Property Act.

A legislative system that produces laws and regulations in huge number does not inevitably obstruct the rule of law. As shown above, some Western legal systems produce many rules too and thereby hinder the transparency of the legal status. The crucial point is whether the legal system provides solutions for conflicts of laws in theory and whether those solutions work in practice.

So how to deal with inconsistent rules, with rule-makers who exceed their legislative powers or issue rules without any legislative power in China? Of course, there are provisions⁸⁰ how to solve conflicts of rules in China. But judges or officers are not authorized to solve every conflict that comes to their desks. Some conflicts need to be resolved by certain legislative bodies. Their authority depends on the hierarchical level of the conflicted rules. This “report followed by action” system⁸¹ in theory describes a way to ensure uniform dealing with conflicting rules in China. Unfortunately, in practice, the responsible bodies often do not do their job⁸² and leave many conflicts unresolved. Even in cases where the judges are authorized to solve conflicts by themselves, loyalty⁸³ is stronger than the adherence to the rules provided to solve conflicts. In addition, training programs show that many Chinese judges are still not familiar with the provisions for conflicts of rules or their application.

Concerning the exceedance of legislative power or illegitimate legislative activities—in contrast to the above-mentioned situations in the West—the courts, including the Supreme People’s Court, do not have the power to declare rules void. Like conflicting rules, according to the Legislation Act, the legislative body which stands above the rule in question is responsible to do so.⁸⁴ But again, the “report followed by action” system does not work in practice and does not apply to judicial interpretations which are not dealt with in the Chinese Legislation Act. According to the Supervision Act, the authority to declare judicial interpretations void is the SCPC which has not declared a single judicial interpretation void yet. The reason for the reluctance of the SCPC might be to demonstrate unity among the state organs.⁸⁵ Surprisingly, the SPC itself abolished some of its own judicial interpretations which conflicted with laws, but only a few, and there is no formal right to claim these annulments and no transparency or guarantee whether and when the SPC will take these actions again.

Neither ordinary citizens nor entrepreneurs or judges have the legal authority to petition that rules are illegal and to push for a formal decision. Only a few high-ranking state organs are endowed with formal rights and reach decisions. Ordinary judges, citizens, and entrepreneurs are limited to making suggestions to SCPC to check rules they consider illegal.⁸⁶ Whether those suggestions will be dealt with or not is unforeseeable and reasons will not be made public.

To summarize, reaching an accurate legal opinion in China is time-consuming and expensive. Even using commercial databases, the risk of incomplete and therefore unreliable considerations remains. Even if all relevant rules are found, conflicts of law and their non-solution in practice make it difficult to foresee which rule the relevant administrative body or judge will follow. Moreover, one must be on the watch for rules which are made by institutions without legislative competence but might be followed in practice.

The Chinese government has identified the problems and the need for changes. In its White Paper 2011 on “The Socialist Legal System with Chinese Characteristics,” it announces some measures but does not shake the legislative system to the very foundations. China especially does not want to refrain from the broad legislative power of the State Council. More participation and representation of the Chinese people could be reached, if the legislation power was assigned exclusively to People’s Congress or its Standing Committee. Instead, China wants to

… improve the revision mechanism as applied to laws and regulations … in order to make [the] legal system more … consistent.⁸⁷

Chinese official consider administrative regulations of the State Council obviously to be too important for the implementation of the law:

Administrative Regulations occupy an important position by elaborating and supplementing the laws” or “Administrative regulations play an important role in the implementation of the Constitution and laws, … the promotion of … balanced and sustainable economic development. ⁸⁸

Looking to the number of rules enacted every year, the practice of enacting and later on rectifying regulations solution takes much time and resources. Moreover, once enacted, flawed rules are effective until their consolidation. Regrettably, the mentioned White Paper does not address the inconsistencies caused by the judicial interpretations of the SPC.

Chinese legal history can roughly be divided into four periods: During the first period, the San Huang Wu Di (Three Sovereigns and Five Emperiors) period (2850–221 B.C.), the Xia Dynasty is regarded as the starting point of the Chinese legal system.¹²² During Xia Dynasty, a set of rules of etiquette was codified based on social norms. They were called Li (translated as “the rules of property” or “rites”) and evolved into the behavior rules of the state and developed later into the standardized and systemized social norms. The second concept Xing (punishment) was used to implement Li. Since Xing mainly contained penalties for criminal offenses, Xing is nowadays considered to be the initial form of criminal law.¹²³

In the second, the imperial period Li and Xing remained and developed into a synergy of Li and Fa (Law).¹²⁴ Norms and rules were codified and became the primary source of law. The Tang Code is regarded as the most influential code of this period. Fa was only used secondarily to supplement Li, and the heart of Li was to protect the authority of the emperor.¹²⁵ Therefore, imperial China can be classified as a system of rule by man.¹²⁶

The traditional link between Li and Fa further weakened in the republic period, when China felt forced¹²⁷ to modernize—mainly due to shameful defeats¹²⁸ and revolts. For this process, China looked to the modern and “stronger”¹²⁹ nations and their legal and governmental systems, e.g., by sending “study committees” to Europe, Japan, and the USA.¹³⁰ This led to many drafts of laws that—for the first time in Chinese history—strictly separated morality and law.¹³¹ One of the results was China’s first draft for a Civil Code in 1911, which was primarily based on German law.¹³² In particular, due to the Chinese Revolution in 1911, this code was changed again and further codes were developed and put into force.¹³³

At the beginning of the fourth, the communist period, all effective codes, and all other existing legislation were abolished. In particular, Mao Zedong praised the abolishment of the old system and claimed that the new socialist legal system could only be painted on a “piece of white paper” which bears “no burdens.”¹³⁴ Extremely influenced by the legal philosophy of the Soviet Union law was mainly understood as an expression of the will of the dominant or ruling class.¹³⁵ The Communists based their legal system for the People’s Republic of China on the legal and administrative practices they had developed in the areas under their control before 1949 and enacted new laws and regulations which stressed the ongoing “class struggle.” These rules were eventually replaced by the party’s policies (Zhengce) or the quotations of Mao¹³⁶ or regularly ignored by officials when they were inconvenient.¹³⁷ The following “legal anarchy,”¹³⁸ especially the 10 year period of the so-called Cultural Revolution, obliterated the legal system. During that period, legal institutions, such as the Ministry of Justice, were gradually abolished.¹³⁹ Although a few law schools remained formally open, in fact, legal education came to a halt and most of the traces of a formal legal system disappeared.¹⁴⁰ During that time of repression and arbitrariness, people could not trust in or count on written law. After Mao’s death in 1976 and the end of the dark period of Cultural Revolution, China’s economy was in a very desolate state. Therefore, Deng Xiaoping reversed Mao’s course and started the vast economic reform that is still going on in China. Realizing the importance of legislation, a massive legislative reform went on simultaneously with the economic reform. Since the start of the policy of reform and opening in 1978, China had enacted 240 effective laws by the end of August 2011, including the current Constitution; 706 administrative regulations and more than 8,600 local regulations¹⁴¹ and numerous judicial interpretations (sifa jieshi) were passed by the Supreme People’s Court.

For the purpose of this analysis, some remarks on two of the big four major Chinese school of thoughts¹⁴² are indispensable. Representatives of the two most influential schools, Confucianists and Legalists, had quite different understandings how to govern a state. While the “Ru Jia,” the Confucianists, believed that the country must have a social order under which all people behaved within the limits of Li, the “Fa Jia,” the Legalists, emphasized the importance of law in governing a country.¹⁴³

Confucianism dominated the development of the Chinese legal thinking¹⁴⁴ not only when it was declared to be the ruling orthodoxy in the Han Dynasty.¹⁴⁵ The idea of Li extensively refers to norms of social behavior and moral standards. Li played an important role not only to regulate human activities but also to define the relationships between humans and nature.¹⁴⁶ Confucius is believed to have promoted a strict social hierarchy in which no one could ever step beyond their limits. This rigid hierarchy should in Confucius words be as follows

Jun Jun, Chen Chen, Fu Fu, Zi Zi,

meaning let the monarch (ruler) be the monarch, the minister a minister, the father a father, and the son a son.¹⁴⁷ Emphasizing hierarchical social roles, Confucius strengthened the idea that lay people owed obedience to government officials who knew best their interests and the interests of the whole society.¹⁴⁸ The dominance of Confucianism is founded in its aims. Not only that it aimed to maintain imperial power, it also served as an ideology to unify the country around the emperor, granting him exclusively absolute power.¹⁴⁹ Confucian governments installed far-reaching authoritarian bureaucracies to rule the country.¹⁵⁰ They believed in the authority of carefully selected officers, not in an abstract legal system and the rule of law. As Xunzi put it:

There are men, who can bring order about, but there is no model, that will produce order.¹⁵¹

The efficiency of the Confucian political system and its ancestral legitimation as well as the absolute power a person (emperor) long suppressed the development of common sense for justice and law in China.¹⁵²

As mentioned above, the Legalists stressed the importance of law in governing a country and suggested a system of laws that would enable a ruler to govern the country in a good manner.¹⁵³ Moreover, they promoted the idea of “equal punishment,” meaning that the social status should not be taken into consideration when punishing lawbreaker. Although equal law application is one of the recognized core elements of the Western notion of the rule of law, Legalism did not mean rule of law as understood in the Western sense above shown. Legalism justified the reign of the emperor and his state, and it thus ensured the supremacy of the imperial power¹⁵⁴ instead of the supremacy of law.

Simplifying the differences between Confucianism and Legalism, one could say that the former stood for a “rule of Li,” while the latter fought for a “rule by law.”

As mentioned above, in 1978, Deng Xiaoping and, in 1997, Jiang Zemin stipulated that one task of the political reform agenda was to strengthen the legal system so that the laws would not change with changes in leadership or changes in the views or focus of China’s leaders. Moreover, to rule, “the country in accordance with the law” was introduced in the Chinese Constitution (art. 5 par. 1) in 1999. This statement is further specified by art. 5 par. 4 of the Chinese Constitution:

All state organs, the armed forces, all political parties and public organizations and all enterprises and institutions must abide by the Constitution and the law.

By reading this, it seems that the supremacy of law in China goes without saying. However, there are contradictions in theory and practice. Firstly, paragraph 7 of the preamble the Chinese Constitution sets out the framework and limitations, thereby relativizing the statement:

…under the leadership of the Communist Party … the Chinese people … will continue …to improve the socialist legal system….

Chinese scholars in Constitutional Law in their majority believe that the preamble has binding effect for interpretations of the Constitution.¹⁵⁵ Second, the statements of article 5 are confined by the reference to socialism (art. 5 par. 1: “building a socialist country of law”) and therefore to a model of society where people are governed by a dominant force or ruling class, but not according to law.¹⁵⁶ But this contradiction in words does not seem to be a contradiction at least for some Chinese scholars.¹⁵⁷

Not surprisingly, the “leadership of the Communist Party” and the reference to socialism pave the way for special requirements in terms of the application of law, such as the “Three Supremes”¹⁵⁸ or the “mass line,”¹⁵⁹ which would be deemed extra-legal from a Western understanding of the rule of law.

Confucian thinking¹⁶⁰ may have left its traces in today’s China in the form of a still existing belief¹⁶¹ that the law alone is not sufficient to govern a country properly and that a “right” or “great” man is needed for good governance.¹⁶² Emphasizing hierarchical social roles, Confucius strengthened the idea that lay people were supposed to defer to the superior judgment of government officials who knew best their interests and the interests of the whole society.¹⁶³ Deeply influenced by Soviet legal theory, the CPC did nothing to challenge these fundamental beliefs, but followed Leninist ideology, which assumes that because the Party had no other interests than what was in the best interests of the people (and knows what the interest is), there was little need for external restraints on the Party or government that carried out Party policy.¹⁶⁴ Moreover, Vyshinsky’s¹⁶⁵ view was adopted that in a socialist state, the Communist Party, as the representative of the ruling proletariat, should enjoy absolute control over the creation of positive law by the organs of the state and determine the content of the law according to the requirements of its evolving program of economic and social development.¹⁶⁶ Nothing really changed but the name of the ruler from “emperor” to “Communist Party.”

However, many Chinese do not necessarily regard the CPC anymore as the “right force” or to say with Xunzi as the “good ruler.”¹⁶⁷ Two statements may illustrate this feeling: According to Zhao Suisheng¹⁶⁸, the elites of the CPC:

are no longer concerned with ideological correctness or even disciplined grassroots-level organizations.” But “…with its ultimate authority over the state, the party remains a ticket that must be punched and the main avenue of upward mobility for many politically ambitions elites. Most of those elites still want to join the party in order to advance their careers.¹⁶⁹ No longer seeking to penetrate society, the CCP [CPC] has become a network of bureaucratic elite committed to retaining a large reservoir of power translatable into personal status and affluence.

And Yu Guoming, a pollster of the famous and top ten-ranked People’s University of Beijing states:

The government’s credibility crumbles away.¹⁷⁰

The second aspect, and may be the most important one for the rule of law, is the challenge to overcome the traditional attitudes of government officials and to create a culture of legality.¹⁷¹ Due to the insignificant status of formal law in history and especially during the period from 1949 to 1976, Chinese officials still regularly abused their authority and ignored the law.¹⁷² Today, some drastic cases¹⁷³ show that officials still abuse their authority. Moreover, lower legislators often enact inconsistent implementing rules,¹⁷⁴ thereby avoiding the requirements of higher regulations. But laws are not only ignored or bent by corrupt officials to promote their personal interests. An additional reason to take liberties with the law, especially the rules on environmental protection¹⁷⁵ and land use,¹⁷⁶ might be the pressure from the central government to promote economic success in the entity governed.¹⁷⁷ The fact that many officials are businessmen as well has further weakened the authority of law.¹⁷⁸ Moreover, the lack of a culture of legality of many Chinese officials is also based on the weakness of the Chinese judiciary.¹⁷⁹ When those who are responsible to apply the law are unreliable, other mechanisms, such as long-term social or business relationships, might replace the law, rendering the law secondary or unnecessary.¹⁸⁰ Thus, the inadequacy of the administration and the judiciary has preserved the so-called guanxi system in China. Personal relationships to influential people are often more efficient, or even sometimes the only way, to solve problems instead of calling the law.

The problem of corruption in China, which obviously not only applies to local officials far away from Beijing¹⁸¹ or to lower governmental levels has been addressed by many governmental speeches as well as by the White Paper 2008.

in some regions and departments, rules are not observed, or strictly enforced, … local protectionism occurs from time to time; some government functionaries take bribes and bend the law, abuse their power when executing the law, abuse their authority to override the law…, thus bringing damage to the socialist rule of law…

This again sounds like a clear call for the supremacy of law, very much in the mentioned Western understanding, meaning that everybody, even members of the CPC, must obey the laws. But when reading further, this “clear” statement seems to be devaluated again. According to the White Paper 2008, the following principles—reflecting the structure of Chinese state and society and Chinas history—must be observed to carry out the fundamental policy of governing the country by law:

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  adhering to the leadership of the CPC, the people as the masters and ruling the country by law, ensuring that the CPC always plays the role as the core of leadership in directing the overall situation and coordinating the efforts of all quarters in legal construction, ensuring the people’s position as masters of the country according to prescriptions of the Constitution and the law, and making sure that all work is carried on according to law;
  
  
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  persevering in focusing on both construction and the rule of law, continuously improving the legal system in the light of the objective needs of economic and social development, and making legal construction serve economic and social development as well as the construction of a harmonious society;

…

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  and persisting in basing legal construction on institutional building and enhancing the public’s awareness of the rule of law, and unremittingly enhancing the level of legal civilization of the whole society.

Thus, the White Paper 2008 not only changes in wording between “rule of law” and law merely as a tool (“ruling the country by law”) to govern China. Furthermore, it disguises the supreme force to govern China: Should it be the constitution and the law, which applies equally to anyone? Or shall the CPC continue to be the leading force and the law be nothing more than a tool of the CPC to rule China? Maybe the White Paper reflects the contradictory opinions within the CPC on the future of China and reflects the different voices within the CPC instead of telling a clear direction.

On the one hand, at least, the content of the last bullet gives reason to believe that the authors of the paper wish to follow the path toward the supremacy of law. But this would on the other hand—at least from the Western point of view—mean to give up the guarantee of the leading power for a certain political force. Otherwise, the supremacy of law cannot be ensured.

The situation in China has changed tremendously since 1978: The culture of legality and the awareness of law have increased as one example shows: Before China’s accession to WTO in 2001, many administrative acts, so-called final administrative acts,¹⁸² were not subject to any further judicial or even administrative control, there was no remedy against these acts which left the citizens completely to the government’s discretion. The remedy was a mandatory condition for the accession to WTO and has strengthened the legal position of ordinary citizens and entrepreneurs and more importantly the awareness that an average person can challenge a governmental decision. But of course, many officials have been slow to accept the notion that the rule of law requires them to act in accordance with the law and to be subject to the law.¹⁸³ Until today, they find their ways to ignore the law (see especially for the enforcement of court-rulings Sect. 4.5.3).

Although party leaders may be skeptical about the rule of law, some of them appreciate its advantages. For instance, notwithstanding Guangdong’s reputation for flexibility and finding ways to circumvent the rules, Guangdong officials were among the first to jump on the rule of law bandwagon because they felt that implementing rule of law would help them maintain their competitive edge over other provinces.¹⁸⁴

Internal and external pressure to improve the culture of legality will continue and will be fueled by factors such as the needs of a market economy, the demand of foreign and Chinese investors, and international pressure which became evident in China’s accession to WTO.¹⁸⁵