Selected Aspects of Rule of Law

© The Author(s) 2015
Katrin BlasekRule of Law in ChinaSpringerBriefs in Law10.1007/978-3-662-44622-5_4

4. Selected Aspects of Rule of Law

Katrin Blasek 

Technical University of Wildau, Wildau, Germany



Katrin Blasek

Separation of powerConcentration of powerSupremacy of lawSupremacy of CPC/Communist Party/Party leadershipMentality of lawMaking

As mentioned, this analysis focuses on some recognized major, fundamental aspects of the rule of law, such as separation of power, protection of fundamental/human rights, supremacy of law, and independence of courts and judges. Regarding legal certainty, it will especially concentrate on one crucial reason for different levels of certainty in the “West” and in China: the mentality of rule-making.

4.1 Separation or Concentration of Power?

The separation of powers is a cornerstone of Western legal systems today. In contrast, in today’s China, there is division of duties1 instead of separation of powers (see in detail Sect. 4.1.2).

4.1.1 Germany, France, and the United Kingdom

In Germany, separation of powers is a fundamental principle.2 Legislation, administration, and judiciary are generally understood as separate powers with separated and independent core competences in which other powers must not intervene.3 The functions of legislation, administration, and judicature are assigned to different organizational units,4 namely the parliament5 (legislator), executive authorities (administration), and the courts (judicature) which are independent from each other and control each other (“checks and balances”). Due to historical reason (see Sect. 1.​3), the German system is fairly straightforward and clear. There are very few exceptions from the mentioned strict separation.6

In France, the separation of power is interpreted less strictly than in Germany. Of course, power is distributed to legislative, executive, and judiciary bodies, too. But due to the so-called rationalized parliamentary system7 and due to the fact that in contrast to Germany, the French President is elected directly by the people, the President as a member of the executive enjoys an extraordinary powerful position and other executive bodies enjoy broad legislative power, too (see Sect.

In the United Kingdom, power is distributed to the legislature (parliament), the executive (the government), and judiciary. Historically, they existed impartibly in the hands of the Crown, and today, they are separate institutions.8 But still, the separation of power is interpreted less strictly in the United Kingdom than in Germany. There are much more overlappings of functions among the powers, especially in the field of legislation. Not only the parliament is active in legislation, but also the executive and the judiciary by producing binding case law. (See in detail Sect.

Moreover, due to the Superiority of Parliament, there is—again in contrast to Germany—no full control of the legislation by the Supreme Court (see further Sect. 4.2.1).

To say it in the words of Alder “The separation of powers affects the United Kingdom constitution in an unsystematic, incomplete and pragmatic way in which the balance of forces is unstable”.9 And as Lord Steyn put it: “Our constitution has never embraced a rigid doctrine of separation of powers. The relationship between the legislature and executive is close. On the other hand, the separation of powers between the judiciary and the legislative and executive branches of government is a strong principle of our system of government.”10 While there is little agreement among writers as to whether the separation of power is a valuable idea or in what sense it applies to the United Kingdom,11 at least high judicial authorities have claimed the separation of power was a fundamental principle12 or an essential element of the constitution.13 And indeed, the separation of power between the legislature and the judiciary (for independence of judges, see Sect. 4.5.2) has been remarkably strengthened14 by the Constitutional Reform Act in 200515: This Act especially resolved the former unusual position of the Lord Chancellor, who was a member of all three powers of the political structure.16 Reasons for the Separation of Power

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 Impact on the Legislative System, Accessibility, and Transparency of Law

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.

4.1.2 China

In China, instead of separation of power, there is concentration or even unity of power or to say it with Pan Wei: There is a division of duties46 only. Generally speaking, in China, every power is authorized to fulfill almost every of the three functions mentioned. The legislation is made not only by the parliament but generally also by the administration and the judicature. The function of judiciary is not only taken by the courts but also by the legislation (SCPC) and the administration (State Council).47 Reasons for Concentration of Power

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., 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 Impact on the Legislative System, Accessibility, and Transparency of Law

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

The power to issue rules is conferred to

  • “two parliaments” (laws)

  • the State Council and its numerous departments (regulations)

  • the Supreme People’s Court and the Supreme People’s Prosecution (interpretations)

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. 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.

4.2 Supremacy of Law

4.2.1 Western Approach

The concept of the rule of law was established to restrict omnipotent rulers and to protect individual freedom. One essential tool to protect personal freedom is the supremacy of law. The supremacy of law is meant to restrict governmental discretion and to reduce willfulness and arbitrariness of governmental actions.89

To say it with Locke, Hobbes, and von Hayek words:

Where-ever law ends, tyranny begins. (Locke)90

He that is bound to himself only, is not bound. (Hobbes)91

When we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man’s will and therefore free. It is because the lawgiver does not know the particular case to which his rules will apply, and it is because the judge who applies them has no choice in drawing the conclusions that follow from the existing body of rules and the particular facts of the case, that is can be said that laws and not men rule. (von Hayek)92

4.2.2 Germany, France, and the United Kingdom

In Germany, the supremacy of law is since 1949 clearly protected by the German Constitution, especially in the following articles:

The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice. (Art. 20 par. 3)

Should any person’s rights be violated by public authority, he may have recourse to the courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts. (Art. 19 par. 4)

These articles stipulate very clearly that any state power, be it legislative, executive, or judicature, must comply with nothing else but the law and the constitution. Moreover, according to article 1 par. 3 of the German Constitution, the individual rights stipulated in the so-called Grundrechtskatalog (literally: catalog of basic rights93) in articles 1–19 and elsewhere in the constitution94 “bind … the legislature, executive and judiciary as directly applicable law.” To guarantee the supremacy of law and of the constitution, anybody can call the courts in any case of potential rights violation.95 This does not only mean that a person can call the responsible court96 whenever he feels law has been applied in a wrong way but also against the law itself as long as the law at least potentially violates his individual rights. State organs or parliamentary entities are able to call the Bundesverfassungsgericht (Federal Constitutional Court)97 too, for instance to claim a lack of authority of legislation or a failure in a legislative procedure.98 The supremacy of law is indirectly secured as well. Any judge has to consider whether an act based on a law or a law itself does comply with the constitution, especially with the individual rights. If necessary, judges apply the law in conformity with the constitution themselves or have to suspend proceedings and to consult with the Bundesverfassungsgericht whether the respective law complies with the constitution.99

In France, all state organs have to abide by the law as well. The supremacy of law derives from Art. 16 of the Declaration of the Rights of Man and of the Citizen 1789100 and with regard to acts of the executive from the principle of légalité.101 Individual rights mainly laid down in the mentioned Declaration of 1789 or elsewhere in the French Constitution may not be questioned in its substance.102 But the invalidation of an Act of Parliament on the grounds that it infringes upon constitutionally protected rights of the citizens is alien to French constitutional tradition.103 This tradition has rested on a rejection of a “gouvernement des juges.” The idea of a judicial body modifying the will of the elected legislature and therefore the sovereign will of the people represented by the legislature has traditionally been rejected as a distortion of the democratic process and the rule of law.104 In particular, pre-Revolutionary philosopher Rousseau identified the rule of law with the rule by legislation, and the supremacy of law was understood as the supremacy of parliament.105 This conception of parliamentary sovereignty was brought to an end only in 1971 when the Conseil Constitutionnel, today recognized as the French constitutional court,106 decided to examine107 the conformity of laws on the basis of individual rights conferred by the preamble of the constitution.108 But this power remained limited until 2010 because the Conseil was only authorized to declare laws unconstitutional which had not come into force already. From March 2010, this power refers to legislative acts in force, too. When in any course of a trial, the constitutionality is in question judges must consult with the Conseil for clarification. But still the Conseil only examines whether the rule in question complies with the “droits et libertés que la Constitution garantit”109 including the violation of the proviso of legality.110

Nevertheless, the judicial review of statutory law is regarded as a new level111 of “Etat de droit” (rule of law) in France as Valéry Giscard d’Estaing, the then acting President of the Republic, pointed out in a speech in 1977:

When each authority, from the modest to the highest, acts under the control of a judge who insures that this authority respects the entirety of formal and substantive rules to which it is subjected, the Etat de droit emerges.112

In contrast to Germany and France, the constitution of the United Kingdom is uncodified being a set of laws and principles under which the United Kingdom is governed.113 Nevertheless, it is widely recognized in theory and practice that no one is above the law and everyone must act within the law114 although this was explicitly recognized in a statutory provision, in the Constitutional Reform Act 2005.115

The United Kingdom is determined by the general principle of parliamentary supremacy or parliamentary sovereignty.116 This means that any statute, having attained a majority in parliament, repeals, at least implicitly, any earlier provision to the contrary, even if the earlier provision was one of constitutional significance. Therefore, a violation of the content of the constitution by way of legislation is impossible.117 Any parliamentary act is superior to all other sources of law and may not be challenged in court. So the parliament may enact any law that it feels necessary. There is no constitutional court in Britain, nor any other institution with the specific task of guarding the constitution. If there was a British Constitutional Court, it could—due to the principle of parliamentary sovereignty—do little more than check whether the statute had received a majority in parliament.118 However, this does not mean that any rule-maker in the United Kingdom can do what he wants to do without being subject to judicial control. First, in terms of primary legislation, the courts cannot declare laws void. But they can according to sect. 4 of the Human Rights Act 1998 (HRA 1998) issue a declaration of incompatibility if a piece primary legislation is found to be in conflict with the individual rights provided under the European Convention of Human Rights (ECHR).119 This declaration is a signal to parliament to remedy the situation through new legislation. In addition, sect. 10 of HRA 1998 provides for remedial legislation through a fast-track procedure, which gives a minister of the Crown a power to alter such primary legislation by way of statutory instruments.

No such limitation for judicial review applies with regard to subordinate legislation. These legislative acts can be declared invalid on the ground of exceeding the legislative power delegated by parliament (ultra vires doctrine) or as being in conflict with the individual rights provided under the ECHR.120 , 121

4.2.3 Chinese Approach

For a more profound understanding of the situation in present-day China, its legal history and legal philosophy shall be described in brief. Chinese Legal History in Brief

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. Chinese Legal Philosophy in Brief

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.” Present-Day China

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:

  • 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;

  • 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;

  • 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

4.3 Protection of Human Rights

4.3.1 Western Approach

As mentioned above, only for the advocates of the “thicker” or substantial theory does the rule of law require the protection of individual fundamental or human rights (see Sect. 2.​2). Germany, France, and the United Kingdom follow this substantial understanding of rule of law and protect individual rights. The content and classification of these individual rights differ among these countries.

4.3.2 Germany, France, and the United Kingdom

In Germany, there is a unique understanding of the so-called Grundrechte (literally translated “basic rights”) stipulated in the so-called Grundrechtskatalog (catalog of basic rights) in articles 1–19 and elsewhere in the German Constitution (GC) which was passed in 1949.186 Among these basic rights (hereafter human rights) are the freedom of expression, press, religion, assembly, association, the right to enjoy possession and the protection of property, and so on. Moreover, according to article 1 par. 3 GC,187 these human rights are to be observed by all state powers, by the legislature, the executive, and the judiciary as directly applicable law. Whatever the three powers do, they have to find the right balance between public interests and human rights. A non-consideration of the human rights of the people would violate the constitution no matter what the case was. Citizens can demand the observance of these rights by all state organs188 and can enforce their rights through the judiciary (see Sect. 4.2.2). To avoid the emergence of any new totalitarian regime in Germany, the principles laid down in Article 1, especially the acknowledgement of “inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world” (art. 1 par. 2 GC) and the fact that human rights are directly applicable laws for all three powers, shall be inadmissible (art. 79 par. 3 GC). Art. 79 par. 3 GC is therefore named as clause of eternity.

The present-day Constitution of France does not contain a catalog of human rights,189 although the French history with the Declaration of Rights of Man and Citizen in 1798 provides for an early contribution to the progress of individual rights. Following the French legal tradition, only a few liberties are expressed in a very general way at the beginning of the constitution,190 some guarantees concerning a fair trial can be found, too.191 However, in continuous jurisdiction, the Conseil d’Etat established the droits et liberties or the droits fondamentaux as general legal principles. Moreover, to the surprise of all, the Conseil Constitutionnel started in 1971 to establish the protection of individual rights.192 This is based on the preamble of the constitution and its reference to the solidarity with the human rights and the preamble of the Constitution of 1946. The latter preamble takes reference to the rights and liberties of the citizens as laid down in the Declaration of 1798 and to the recognized essential principles “principes fondamentaux reconnus.” These essential principles were the starting point for the further developments of human rights.193

With regard to human rights, the distinction is made between special individual liberty rights, especially the freedom of speech and the freedom of the press, the freedom of association, the freedom of movement, etc.,194 and other individual liberties, e.g., the right to enjoy possession and the protection of property. This distinction has an effect on the question how especially the legislator may intervene in these liberties.195

British philosophers have been early (seventeenth century) pioneers in stipulating individual rights.196 The Bill of Rights 1689197 is one of the milestone documents resulting from these early thoughts about and struggles for individual rights. Today, notions of individual rights can be found in most written constitutions in the world.198 Unique among democratic countries, the United Kingdom does not have a written constitution which would guarantee individual freedoms. Nevertheless, British citizens do enjoy individual rights, since rights and freedoms are traditionally considered to be protected by the presumption that people are free to do whatever is not specifically forbidden by either legislation or the common law.199 By consequence, citizens of the United Kingdom have traditionally been dependent on the protection of their rights in an ad hoc manner by the statutes of the elected parliament or through common law by the judiciary—and increasingly by referring to the European Conventions of Human Rights and European Community Law. Accordingly, rights in the United Kingdom have been both fragmentary and uncertain. Citizens are left in doubt about their rights,200 and they do not have a single written authoritative document which they could use as sword or shield against government action.201 Therefore, in the United Kingdom of vital importance for the protection of individual rights was the passing of the Human Rights Act 1998. It incorporated the rights provided under European Convention on Human Rights (ECHR).202 Before judges used the Convention as an aid to interpretation, it provided guidance in resolving ambiguities in domestic law. However, given the supremacy of parliament, judges previously had no jurisdictional basis on which directly to employ the Convention to protect rights.203

Before the HRA 1998 was passed, especially the courts felt a strong desire to ensure the protection of human rights: As the then High Court judge, Sir Stephen Sedley, pointed out in the The Guardian newspaper in May 1995:

…And, if in our own society the Rule of law is to mean much, it must at least mean that it is the obligation of the courts to articulate and uphold the ground rules of ethical social existence which we dignify as fundamental human rights…204

His view denies that the rule of law can be satisfied by a merely “thin” or formal understanding205 and more importantly, it denies the fundamental principle of sovereignty of parliament (see Sect. 4.2.2). This principle has not been abolished by the enactment of HRA 1998, but the Act has the potential to create frictions between the judiciary206 on the one hand and the legislature and executive on the other hand.207 Section 2 of the Act requires future courts to take into account any previous decision of the European Court of Human Rights (ECtHR). Section 3 requires all legislation to be read, to give effect to the rights provided under the ECHR. Notwithstanding the fact that the court may not declare primary legislation invalid (parliamentary supremacy), this provision provides the court with an extended power of interpretation. In particular, it is possible to read statutes in conformity with the human rights incorporated by HRA 1998.208 Moreover, the court can undermine the sovereignty of the parliamentary by declaring primary legislation incompatible and subordinated legislation invalid (see in detail Sect. 4.2.2). Hence, the HRA 1998 has suggested a compromise which leaves the last word to the parliament, but gives the court power to influence its decision.209

The human rights incorporated by HRA 1998 into domestic law of the United Kingdom include among other fundamental individual liberties and rights such as freedom of thought, expression and religion, freedom of assembly and association, the right to fair trial, the right to enjoy possession, and the protection of property. Torture and forced labor are prohibited. Any person, non-governmental organization, or group of individuals210 can rely upon the incorporated rights which are indirectly binding the legislative and executive, too. Regarding equality or non-discrimination, the fairly new Equality Act 2010 has to be mentioned. It convenes all earlier discrimination law under one piece of legislation and contains issues of substantive equality, such as welfare and access to resources, which have not been addressed in the ECHR document.211

Obviously, there is no standard universally agreed how and in how far the individual human, fundamental, or basic rights bind or restrict state organs or citizens. However, many Western countries agree that human rights are natural law or natural rights and do preexist or exist apart from the documents that recognize them.212 The difficult task to substantiate their content is left with the courts.

The fight against terrorism, especially after the attack on the World Trade Center on September 11, 2001, has subjected individual freedoms to derogation in all mentioned countries. There is a creeping erosion of liberty by passing numerous acts of legislation213—each of them seems harmless, but they add up to a “formidable armory of state powers.”214

4.3.3 China

While in many countries of the so-called Western civilization, individual human rights are deemed natural, this is not the case in today’s China.

Politicians,215 not only from China, and entrepreneurs216 like to explain this with references to Chinese history or culture, especially to Confucius. They argue that Chinese do have completely different values than Westerners, meaning that any understanding of or striving for human rights are alien to Chinese and that human rights are virtually inconsistent with Chinese culture and that Chinese do not know rights but duties and that Chinese owe respect only for superior powers. In particular, the fact that Confucian legal philosophy emphasized a strict social hierarchy (see Sect. seems to serve as sufficient evidence. However, an analysis of the classical thoughts of Confucianism does not necessarily support this conclusion.217 When looking into what Confucius’ most known followers Mengzi and Xunzi attributed to their master, one will find evidence for human values and desires that every human possesses by nature. Inborn characteristics of any human being are humanity, justice, and morality.

Cornerstones of the Confucian codex are not only morality (“li”), but also humanity (“ren”). It requires to treat others as equals218 and leads to the basic formula:

Do not do to others what you would not like yourself.219

It describes the relations between citizens, but as well between the ruler and his people. Confucian thinking presumes that any human owns a “good” dignity due to his natural moral abilities. It must be respected in particular by the powerful. Moreover, humans are of fundamental violability and in need of protection, especially against the power of the rulers.220

In particular, there is no contradiction between strict hierarchical orders emphasized by the Confucianists and the recognition of fundamental human rights because the demand of a ruler for loyal people required him to fulfill his duties toward the people.221

Mengzi: The folk is the most important … the ruler is of no importance at all.222

And if the ruler forfeits his mandate and becomes an evildoer, he can be overthrown by the people.223 Confucianists believed that a society needs a clear hierarchical order and that this order necessarily brings social inequality. But to make social differences acceptable, the ruler had to ensure social peace and prosperity or at least the well-being of the people.224 Assuming that every human by nature possesses the same individual demands, the ruler had to respect his subordinates like himself.225 For Kongzi (Confucius), Mengzi, and Xunzi alongside with a kind, tolerant, and noble behavior of the ruler, good subordinates should act in critical loyalty.226 This shows again that being a member of hierarchy never meant to pass on individual rights.

Confucianists did not think in the terms of law like rights and obligations but in terms of personal morality, thereby emphasizing the obligation. Taking the critical view of the classical Confucianists on laws into account too, it does not really surprise that they did not take care of ruling human rights by way of formal expression.227

The recognition of inviolable fundamental human rights and the statement that “All human beings are born free and equal in dignity and rights”228 seems incompatible with a system that eternally grants power to one party. Hence, the understanding of individual rights in present-day China is rather obligation based. In the Chinese Constitution of 1982, a catalog in Chapter II “Fundamental Rights and Duties of Citizens” lists many individual liberties and rights, for instance, the freedom of speech, press, religion and assembly, and the right of equality of all citizens.229 Moreover, the fourth amendment of the Constitution in 2004 added a paragraph to art. 33 which explicitly states:

The state respects and protects human rights.

The same amendment improved the protection of private property, especially against unlawful expropriation or takeover.230 Together with earlier fundamental amendments231 of the Constitution, it shows the understanding among Chinese leaders that a modern market economy and society require a reassessment of the rights of citizens. In contrast to Germany, France, and the United Kingdom, China does neither grant the freedom of movement nor the possession of land.

However, the value of the human rights expressly conferred by Constitution is limited by article 51:

Citizens of the People’s Republic of China, in exercising their freedoms and rights, may not infringe upon the interests of the state, of society or of the collective, or upon the lawful freedoms and rights of other citizens.232

Policy papers, vague by nature, confirm that the understanding of human rights is rather obligation based. They are considered subordinate to the demands and needs of the Chinese state and the society. According to the CPC, these are economic development of the country and stability within the society.

China takes as its constant goal the elimination of poverty, enjoyment of human rights to the full by everyone and building of a prosperous, strong, democratic, culturally advanced and harmonious modern socialist country. China’s basic stand on the development of human rights is: placing top priority on people’s rights to subsistence and development, making development the principal task, and promoting citizens’ political, economic, social and cultural rights to achieve their all-round development.233

In practice, governmental authorities exclusively define which actions help to achieve these goals and which are off-limits. Citizens are constantly at risk that authorities opportunistically change their point of view. Since the responsible institution, the SCPC, does not execute its power to interprete the constitution,234 there is hardly any guidance, what the “interests of the state, of society or of the collective” are. Moreover, it is neither recognized that courts check governmental acts with regard to a violation of human rights which are guaranteed by the constitution235 nor do judges today have the self-confidence to do this (see Sect. 4.5.3 for detailed considering of the situation of judges). Besides that, no independent institution checks the adherence of state organs to the constitution236 and no citizen has the right to require a decision by court or any other state organization on the basis that its human rights have been violated.237

The strong obligation-based understanding of human rights is criticized by Chinese scholars as being incompatible with a market economy and democracy.238 Moreover, Chinese scholars suggest that the balance between human rights and the interests of the state, society, or collectives shall not be defined by governmental authorities, e.g., by way of administrative rules. Since human rights have been granted through the constitution which was enacted by an institution that is (at least somehow) legitimated by the people, any limitation of human rights can only be defined by an institution which represents the will of the people, too.239

4.4 Legal Certainty: Mentality of Rule-Making

4.4.1 Western Approach

According to both the thinner and thicker definition of rule of law, law must be clear (see Sect. 2.​2) so that citizens can know lawful conduct. “Clear” rules are also meant to restrict the discretion of governments and reduce willfulness and arbitrariness. Furthermore, based on clear rules, government officials can be held accountable for their actions.240

As simple this statement might be, as difficult is the job for rule-makers to come up with it. Unavoidably, any legal system is undetermined to some extent, because language necessarily leaves room to different interpretation which allows different ways of application.241 Moreover, legal rules can become obsolete as social views and circumstances change.242 Besides that, the application of existing rules to unanticipated situations or changed circumstances can have unfair consequences and lead to socially undesirable outcomes.243 In addition, since the legislator cannot foresee every situation, the need to close legal gaps will occur from time to time. Therefore, all legal systems depend upon judges or other decision-makers who share the “common sense” in their understanding of rules244 and use the common accepted methods of application of rules (see also Sect. 4.5) to deal with vague rules or to fill gaps in the law in a prompt, acceptable, uniform, and constitutional manner.

4.4.2 Germany, France, and the United Kingdom

The German Constitutional Court (Bundesverfassungsgericht) has demanded rules in Germany to be precise, clear, and unambiguous.245 But of course, due to the above-mentioned problems of rule-making, the degree of precision differs and can differ. But the more important a rule is, especially the more a rule influences the life of the citizens,246 the more precisely the legislator has to draft the rules.247

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