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"A Culprit Before the Magistrate," illustration from George Henry Mason's The Punishments of China, public domain imagee available at Wikimedia Commons

09:12 am | 3. September 2019

Missing Agents

After four decades of legal reforms in China, "rule of law" has become a term commonly used in dialogues between European and Chinese counterparts. But if we omit the subject and object of the term this creates confusion. For any legal system, the most basic question should be: Who is rule of law meant to serve?  

By Zhang Qianfan

EDITOR'S NOTE: For more than two decades now, it has been a routine practice for various governments and institutions in Europe to hold "rule of law" dialogues with their Chinese counterparts. 

KEY POINTS: 

Missing Agent: China has made many advances in the area of law since legal reforms were undertaken in 1979. But the failure to resolve the underlying question of political reform now means that the interests of ordinary people are overlooked in so-called rule of law, while the interests of the entrenched political elites are advanced at their expense. The key question for rule of law: Who is the subject? Who does rule of law serve?

Selective "rule of law": It is a common phenomenon in China that unjust laws are implemented swiftly and strongly while just laws are often impossible to carry out: While Article 10 of the Constitution that leads to land seizure and violent expulsion is implementing perfectly, it is not the case for Article 33-36 which refer to human rights and citizens’ freedom.

New Constructive Power: Chinese civil society has grown as a result of economic reforms, it could exert some pressure on the government in some cases, which resulted in changes that brought the elimination of unjust laws. However, in recent years, legal systems have gone into retreat in China, as politics goes, so goes the rule of law​.

One prominent example of these bilateral exchanges has been the German-Chinese Rule of Law Dialogue. First proposed by Germany's federal government in 1999, the dialogue is based on a bilateral Agreement on Exchange and Cooperation in the Legal Field signed by China and Germany in June 2000. Scholars Christoph Schnellbach and Joyce Man of the University of Munich have written that the rule of law dialogue was "[the] first change in human rights policy" under the government of Chancellor Gerhard Schröder (1998-2004), and that is was a compromise reached between the coalition partners at that time, the Social Democratic Party and the Greens. 

"[The dialogue] was designed," Schnellbach and Man explained, "to offer a long-term approach to developing the rule of law and implementing human rights in China, replacing one-sided criticism with mutual cooperation." According to the language of the German-Chinese Rule of Law Dialogue, exchanges will be conducted "in a spirit of equality and mutual respect with the aim of consolidating the understanding and traditional friendship between the two countries." 

Another such program is the UK-China Rule of Law Roundtable, hosted by the Great Britain China Centre and the China Law Society, with participation from the Law Society of England and Wales. Its events, held alternately between China and Britain, have addressed such issues as "rule of law in the digital age" and "international commercial dispute resolution."

All of these exchanges are intended as opportunities for legal professionals from China and Europe to come together on the basis of mutual respect, to look one another in the eye. However, as the ostensible point of mutual interest in these exchanges is the "rule of law," it is important to be as clear as possible about what we mean by rule of law, and how this applies to the system and circumstances in China. Naturally, understandings of rule of law may differ owing to social, historical, political or institutional differences. As Finland's Minister of Justice Antti Häkkänen noted in a speech to the Chinese Academy of Social Sciences last year, even in Europe "[there] is not a single, consistent understanding of the concept." But as Häkkänen also noted, there are "core elements," including the independence of the judiciary and the effective access of citizens to justice. 

Some of these issues can hover like uncomfortable elephants in the room when bilateral dialogues assume, on the basis of "mutual respect," the equal validity of China's experiences and practices. Christina Blacklaws, the vice president of the UK's Law Society, said in one breath during her opening remarks to the 2nd UK-China Rule of Law for Business Roundtable in 2017, that her Law Society is "independent from government and apolitical," and in the next breath that "[as] well as co-operating with the China Law Society we also have a strong relationship with our counterpart, the All-China Lawyers Association."

The very notion of counterparts is about a claim to shared purpose or function. In fact, the China Law Society (中国法学会), an organization directly administered by the Chinese Communist Party, states outright that its "principal mission is to organize law studies workers and legal workers in the study and implementation of the basic theories and basic political line, direction and policies of the Party." The All-China Lawyers Association (ACLA) has stated that its mission is to "support the leadership of the Chinese Communist Party, and unite members in raising the great banner of socialism with Chinese characteristics." But this too has changed as the political winds have shifted. On July 1 last year, the ACLA revised its Charter, its statement of mission becoming, "Supporting Xi Jinping Thought of Socialism With Chinese Characteristics for the New Era as the guide, supporting the leadership of the Chinese Communist Party," and so on.

Clearly, even the question of counterparts, if properly considered, can unduly complicate the notion of holding a level dialogue with China on rule of law. 

As this year marks the 40th anniversary of legal reforms in China – and also happens to mark the 20th anniversary of the original proposition from the German federal government for the German-Chinese Rule of Law Dialogue – Echowall turned to Chinese constitutional scholar Zhang Qianfan for his views on legal reform and the process of rule of law dialogues. On the latter question, Zhang rejected the idea that dialogue on rule of law with official partners could yield tangible results: "The dialogues you refer to are really only dialogues on the official level," he said. "For the Chinese side at least, this is not something to be taken seriously. Official Chinese organizations have never proven themselves able to grapple with real problems [intellectually]."

Nevertheless, Zhang agreed that this is a good time to look back on the progress China has made in the establishment and reform of its legal system, and to make an honest assessment of the state of rule of law in the country. Zhang's review of legal reform in China, which we hope will help put these questions into proper context, is below.

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Chinese constitutional scholar Zhang Qianfan. 

 

 

 

Forty Years of Legal Reform

China’s economic reforms were kickstarted in 1978, and the process of legal reform formally started the next year, in 1979. Throughout the now 40-year process of reform and opening up, we can say that China has achieved three major achievements and suffered one major setback on the road to establishing a modern legal system. 

First of all, it has made great progress in legislation. Just one year after reforms started in 1978, the National People’s Congress (NPC) enacted the Criminal Law and the Criminal Procedure Law. In 1982, China enacted a new Constitution that remains in effect today. In the years that followed the NPC passed a number of fundamental laws, including the Civil Law and the Civil Procedure Law, which addressed the vacuum of such legislation created by the 10-year gap of the Cultural Revolution. The system had its flaws, of course, but the basic structure was established. Coming out of the anarchic, lawless and destructive period of the Cultural Revolution, during which time there were no laws to obey, this was a mark of undoubted progress. 

The second point of progress has happened in the academic arena. In the past 40 years, there have been thorough and wide-ranging studies of law in China, covering many different areas of law. Soon after China opened up, there was a massive influx of concepts, knowledge and information from the outside world. The flow of information continues today. 

In the 1980s knowledge was scarce, not just in the legal field but in all areas of study. Students and scholars had an insatiable craving for books. Today, in every area of legal studies you can imagine, there is a basic accumulation of knowledge, and countless translations of foreign books are available – even if these books are not always of the finest quality. Although China has devoted immense human resources to the translation and publication of foreign-language materials, high-quality translations by people knowledgeable about the material remain rare. Most often, the knowledge to be found in these books, well translated or not, is transmitted through wider society by conscientious law students and others with an interest in legal information. 

It is true that China's political system has greatly hampered the study of law in the country. But we can say that China's research capabilities have improved considerably in Constitutional law as well as other areas of legal study – a maintaining, at the very least, a level competitive compared to other developing countries. The advancement of the knowledge of law and legal theory has created the foundation for the reform of China's legal system. This is a necessary condition, but of course still an insufficient one.  

Sophisticated Egoism

The third area of progress is growing and maturing literacy of law in Chinese society and in the government compared to the past. Judges, prosecutors, civil servants, and lawyers have all acquired a definite degree of knowledge, and awareness of the law among private citizens has also improved greatly. Within the Chinese government, understanding of the law is actually quite good. Judges and procurators are all graduates from law schools with either bachelors or masters degrees. And today's law professionals generally have a much better framework of knowledge than could be found in the previous generation. Up to 1995, before the Judges Law and the Procurator’s Law were introduced, no explicit demands were made on judges and prosecutors in terms of education. In fact, many people found their way into these posts through the military. Starting in 2001, a comprehensive national judicial examination system was put in place for prosecutors and those seeking credentials as lawyers, and this again raised the level of professionalism among a new generation of judges and prosecutors. 

However, whether or not moral standards in the legal profession have improved is a different question altogether, and it's fair to say there has been little improvement. The norm has become what Peking University law professor Qian Liqun (钱理群) called "sophisticated egoism" (精致的利己主义). In an article called “The Sophisticated Egoists of the University“, Professor Qian criticized the university education system in China, including its leading institutions, for training its young students to become “sophisticated egoists.” “They reach a high level of intelligence, a high level of training, and everything they do is rational and legal and gives no one any cause to nitpick,” he wrote. “They are incredibly sophisticated, old-fashioned, and arrogant. They make gestures of loyalty deliberately, knowing exactly how to cooperate and perform, how to use the power of the system to reach their own goals."

From the establishment of the People's Republic of China in 1949 through to the end of the Cultural Revolution, Chinese people tended toward fanaticism in clinging to the ideologies of the day. Ideology has faded in the reform era, but people have now become cynical and opportunistic. Even knowing a decision from their superior to be wrong and unlawful, they will refuse to take any action, shrewdly recognizing that obedience serves their narrow personal interest.  

One case in point is the judge who presided over the case against Li Zhuang (李庄) in Chongqing in 2009, in the midst of Bo Xilai's aggressive campaign against organized crime in the city – which many criticized for dispensing entirely with due process. Li Zhuang, a Beijing-based lawyer, represented one defendant who was a suspected gangster, but Li was himself subsequently sentenced to 18 months in prison on charges of perjury. The judge in the criminal case against Li Zhuang a PhD law graduate, and his judgement in the case ran to more than 10,000 words, with all the refinement of an academic paper. But the judge's reasoning is biased and twisted. So while his learning testified to China's progress in terms of judicial knowledge, he could not in practice resist political pressure. 

This is a problem we can find across China's judicial system. 

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An empty Chinese courtroom in Jiangsu province. Photo by ptrump16 available at Wikimedia Commons

One clear and noticeable trend in China is that lawyers themselves have matured as a relatively independent profession. They are well-trained, and many are strongly influenced by ideas of constitutionalism and human rights. They have become the backbone in the defense of human rights according to law and in pushing forward the rule of law. 

But this “independence” is only relative – compared, for example, to journalists, academics and civil servants, who experience much greater restraints. Ostensible professional associations for lawyers in China, such as the All-China Lawyers Association, will claim to protect their members in carrying out their professional work according to the law, and they will insist that they are industry groups that defend the legal rights of their members. In fact, one of their key roles is to conduct annual examinations of lawyers on behalf of the Ministry of Justice, and this is an important means of controlling lawyers.

In recent years, many active lawyers who tried to protect the human rights of their clients have faced deliberate impediments, some were disbarred, some were even prosecuted and criminally convicted because of their actions during the representation of their clients.  

Power Unrestricted

The major setback for China is that the fundamental goal of the legal reform has not been achieved. Yes, we have laws. Our knowledge of the law and awareness of the law is has generally improved. But the Constitution and the laws are not effectively implemented. To put it another way, we can say that rule of law in China has not reached “the unity of knowing and doing” (知行合一). Knowledge is no longer the problem. The problem is that knowledge is not being translated into "doing," into action. The truth is that in practice, no-one – not the legal community, not judges, and certainly not citizens – can restrict the abuse of public power. This is a common issue that troubles China’s legal professionals and academics. 

Let me address this problem in a bit more detail. 

The 40 years after the start of China's reform and opening-up can be divided into two or three phases. The first phase covers the first 10 years, starting from 1978 – although some will prefer to count the start of this period from 1976 and the fall of the "Gang of Four." Marked by the introduction of the 1982 Constitution, this was a golden era for China’s legal reform. Why do I say it was a golden era? Because it enjoyed that precious element most fundamental to any successful push for reform – the entrenched elites were equally keen to make it happen.

Generally, the needs of elites conflict with those of the general public, and these needs and interests are a major impediment to reform. In the 1980s, however, China had a rare moment during which the elites and the people stood side by side. Everyone in in the country, whether the elites or the huddle masses, shared a common victimhood through the Cultural Revolution. It was against this backdrop that all insisted on the establishment of a legal system and a constitution. 

Generally, the needs of elites conflict with those of the general public, and these needs and interests are a major impediment to reform.

 

The 1982 Constitution was ratified right at the start of the reform period, just a few years after the end of the Cultural Revolution. There is still a great deal of misunderstanding, in fact, about the concepts in play at the time that the Constitution was introduced. For example, there still was no concept of "rule of law" (法治), but only of "rule by law" (法制). Phrases familiar to legal scholars in later years, such as "governing the nation according to the law" (依法治国) and "rule of law nation" (法治国家) had yet to become part of the legal vocabulary, and would appear only with the 1999 revision of the Constitution. 

In the early 1980s, "human rights" (人权) were also regarded as a bourgeois concept. The phrase in the Constitution about "the nation respecting and protecting human rights" was not added until 2004. In 1982, a decision had not yet been made about whether our country should have “rule by the knife" (刀制), meaning "rule by law," or whether we should have "rule by water” (水治), or "rule of law." 

In China, it's generally felt that "rule by the knife" is a much harsher approach, in which the police and public security organs exist to control and tame the citizen – what we would call in English "rule by law," in which the law is an implement of control. In this view, the Qin dynasty, which enacted undeniably cruel laws, is a representative example of "rule by the knife." And therefore Legalism – the idea that human beings are inherently inclined to do wrong and so much be restrained – is seen by some as the deep origin of Chinese totalitarianism. By contrast, “rule by water” is thought to be softer and more humane. This is what we generally translated as "rule of law." 

This binary view, however, is entirely misleading. 

Legalism certainly may have some totalitarian elements (as does Confucianism). But whether rule is by the knife or by water is not something determined by law. Law is only the object in this equation. The key point is not a legal one but a political one: who will rule, and who will be ruled? 

When we speak of "rule of law" we habitually omit the subject or the object of the sentence – the root of endless misunderstandings. 

When the making of the Constitution is in the hands of entrenched elites, the following inevitably happens. On the one hand elites need a constitution because it maintains appearances – standing in for democracy, the rule of law, and the protection of citizens’ rights. On the other hand, if the constitution becomes implemented in daily life and practice, this does harm to the interests of the elites. For this simple reason, elites do not wish to see the constitution put into practice. So in China the case is that we have a Constitution, but we do not have constitutionalism. There is no magic or sophistication between these two. It is simply a question of implementing the Constitution.

This same logic applies not just to the Constitution, but to other laws as well. In most cases, ordinary legislation is not a sensitive matter, but when it touches on the privilege enjoyed by certain elites, then the entire judicial system becomes corrupted by interference and obstruction – and all the codes and laws become nothing more than decoration. Having laws does not mean having rule of law.

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From left to right: Nie Shubin, Tang Hui and Sun Zhigang, three citizens whose cases led to public outrage and ultimately changes in policies that are important in the recent history of legal reform in China. Nie Shubin and Sun Zhigang images public domain from social media, Tang Hui image screenshot of VOA coverage

This has led to a common phenomenon in China, where unjust laws are implemented swiftly and strongly while just laws are often impossible to carry out. The logic behind this is identical to the logic of having a Constitution without constitutionalism. What should we consider a just law? It is a law that protects the majority of people, which is to say ordinary people. But the problem is that once you implement such laws, they harm the vested interests of elites, who have benefited from impunity. What, on the other hand, is an unjust law? It is a law that is good for a very few people but does harm to ordinary people. 

Those charged with implementing the laws are rational people who make rational decisions. They will implement the laws with force, in consideration of their own interests. In the case of land seizure, or expropriation, in China – something I often use as an example to make my point – it is not accurate to say that the Constitution is entirely not implemented. In fact, in such cases Article 10 of the Constitution is implementing perfectly, distinguishing between urban (state-owned) and rural/suburban (collective) ownership of land.

IMPORTANT CASES IN CHINESE LEGAL REFORM
2003: The Sun Zhigang Case
Sun Zhigang was a college graduate who had just arrived in the city of Guangzhou to begin work as a graphic designer. Following detention by Guangzhou police due to his not having a temporary residence permit in his possession, Sun was beaten to death. The local newspaper Southern Metropolis Daily published an investigative report on this case despite huge pressure from the police. Sun’s death triggered public outcry across the country and resulted in the abolition of the so-called custody and repatriation system.
2005: The She Xianglin Case
She Xianglin, a farmer from Hubei province, confessed to the murder of his wife in 1994 under police torture. He served 11 years in prison until finally, in 2005, his wife was proven to be alive. The case caused widespread debate about torture, the need for an independent judiciary, and state compensation.
2009: Tang Fuzhen Case
Tang Fuzhen was a woman from Chengdu, Sichuan province, who self-immolated and died while trying to stop the government's forced demolition of her home. Self-immolation cases take place across the country as local governments are highly incentivized to seize land for infrastructure and real estate projects. In 2011, China issued a new version of regulations on demolition and eviction under public pressure.
2012: The Tang Hui Case
Tang Hui, a resident from Hunan province, had petitioned for years because she refused to accept a local court verdict following the rape of her daughter. In 2012, she was sentenced to a labor camp for her petition activities but was released after a few days when lawyers and journalists revealed her case online and this generated public outcry. Tang’s case played an important role in the abolition of China's re-education through labor system.
2005-2016: The Nie Shubin Case
Nie Shubing, a young man from Hebei province, was wrongfully executed in 1995. Beginning in 2005 with the confession of the real perpetrator of the crimes Nie had been alleged to have committed, Chinese lawyers, scholars and journalists called for Nie's exoneration. China's Supreme People's Court finally decided to exonerate Nie in 2016. The case had a major impact on procedures concerning the death penalty in China.

Article 10 of the 1982 Constitution suddenly stipulated that “city land is state owned,” and this robbed those who formerly held private rights to their land of those rights. At the same time, it stipulated that “land in the countryside and on the outskirts of cities, unless otherwise specified as state-owned land, is owned collectively.” Under this two-tiered land system, there was a huge gap in price between city land and rural land, and local governments across the country actively sought to expropriate land from the rural collectives in order to designate it as urban land and thereby reap huge profits. The forced expropriation of land, which often came with violent expulsion and demolition of properties, naturally generated a great deal of local resistance that could often turn bloody and deadly. We can say, from a moral perspective, that Article 10 was a “vicious law” (恶法), but it was faithfully implemented. Why? Because elites in China had a clear vested interest in doing so.

Articles 33-36 of the Constitution are about the protection of human rights, the right to elections and to stand as candidates in elections, and about freedom of expression and freedom of religion. These are, from a moral perspective, very good laws – but they have not been implemented. There is hardly any need for me to re-state why this is the case. 

We have, then, a Constitution in which Articles 33-36 are good laws that are not effectively implemented, and in which Article 10, an unjust law, is implemented very effectively, which consequences that are clear across the country. 

The Constitution of any country is a mixed bag in which lawmakers put many things they regard as important. Many of them are just laws, but some are also unjust. Which articles are implemented and which not depends entirely on the people in power, and on which laws they regard as crucial to implement and which they decide to ignore. This year, a process of “constitutional review” was added in an amendment to the Constitution, which sounds like  a positive change. But as to what about the Constitution should be reviewed and implemented through such a process, this is still unspecified. Can we really be so optimistic? 

Back in the 1990s, certain areas in Sichuan and Guangdong provinces made experiments with the direct election of county and township directors, what many saw as breakthrough experiments in local democracy. The pilot projects went very well, but in the end the Standing Committee of the National People’s Congress call these programs off. The Constitution provided the justification. After all, the Constitution states that county and township heads should be indirectly elected – and what justification could there be for electing them directly? The latest change is that in June this year, the Central Office of the Chinese Communist Party and the General Office of the State Council jointly released their “Guiding Opinion Concerning the Strengthening and Improvement of Rural Governance,” which demanded that “the secretaries of village Party organizations must serve as heads of village committees through legal procedures.”

According to Article 111 of the Constitution, the village committee is “an autonomous grassroots mass organization, and the head of the village committee is elected by residents.” The Village Committee Election Law drawn up for this purpose states that “no organization or individual may designate, delegate or remove members of village committee.” The notion of village autonomy once gave many people hopes about the possibilities of local democracy in China, and the European Union also for many years provided financial support for such endeavors. Few have paid much attention in recent years. But what can we say about the constitutionality of this recent Opinion? 

In the absence of real political reform, most people cannot influence how the Constitution is interpreted and implemented. As a result, just laws in the Constitution fail to be implemented, and unjust laws are given priority. This kind of rule of law can very conceivably become rule of unjust laws. Cases in which unjust laws were abolished, as with re-education through labor and forced demolition, happened only because the central government faced immense public pressure. 

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An image of Qin Shi Huang, the first emperor of China, creating in the 19th Century, artist unknown. Image public domain available at Wikimedia Commons

Lessons of the Ancients

I always tell my students that if you talk about the law itself, there is not much difference between China’s ancient law and the modern rule of law in the West. Like Confucianism and Taoism, Legalism in China is an ancient but quite developed school of thought. At its base, Legalism is no different from Western law, as both make the assumption that human nature is rational and selfish. If you compare the legalist works of Han Fei and Shang Yang from the Qin dynasty with “The Common Law,” written by American Supreme Court Justice Oliver Wendell Holmes, you will actually find very similar opinions about law. 

I said earlier that the argument between the “rule of the knife” and the “rule of water” is misleading. This is not because the law itself distinguishes between “knives” and “water,” but because the political soil for the law is completely different. This is where the fundamental difference lies. The Confucianists often accuse the Legalists of being too harsh. But why was the law of the Qin dynasty so harsh? At the end of the day, it was because the law was the emperor's law – serving only the interests of the emperor and a few entrenched elites. Harsh punishments were applied to protect these vested interests.

And why are laws in democratic countries as soft as water? Because the law in a democracy is applicable to everyone, even to the ruler. In fact, the people are the ultimate rulers. The law in a democracy is established by representatives elected by the people, and it is applied to the people. In this context, the laws can never be too harsh. If a democratic representative legislates in a way that is too harsh, this entails terminating his political life. He will be out in the next election cycle. 

In the Han dynasty book Discourses on Salt and Iron (盐铁论), which essentially notes a series of policy debates held in 81 BCE, we can find what has become a classic debate between the Confucianists and the Legalists. The Confucianists criticize exorbitant taxes levied not just on salt and iron manufacturers by the previous emperor, Emperor Wu, but for all manner of things and activities in societies. These taxation policies had been encouraged by the Legalists. 

I always tell my students that if you talk about the law itself, there is not much difference between China’s ancient law and the modern rule of law in the West.

 

Observing democracy in America many centuries later, French political scientist Alexis de Tocqueville would note that problems such as exorbitant and ad hoc taxes did not exist in democratic countries, where people generally lead comfortable lives unencumbered by such concerns. The democratic case is not a difficult one to understand. You have a minimum of two candidates competing to represent a constituency, and if one candidate offers lowers taxes and provides similar public services, voters naturally will choose to put them in office, right? This is basically how electoral democracy works – and what we mean by "rule by water." This has nothing whatsoever to do with the law itself. The real questions become: Who is the lawmaker, and who is the law enforcer? How are they elected? Who are they responsible to? 

Ultimately, the logic of the rule of law follows the political logic of its environment. The philosopher Mencius essentially said so more than 2,000 years ago when he said that “the law alone is not enough” (徒法不足以自行). And yet, this is something many people still fail to grasp. When they talk about the law, they think of it as an abstract concept or system capable of "ruling" all on its own. It is subject-less law, object-less law. But law is lifeless unless people bring it to life. Laws are made by human beings, and they serve and are implemented by human beings. 

When a Special Counsel was established in the United States to conduct the Russia investigation, President Donald Trump must have ground his teeth wanting to have Robert Mueller removed as special prosecutor. But this was impossible. Why? Because even senior Republican officials warned Trump that such an action, and even such an idea, was dangerous.

Logically speaking, the special prosecutor is appointed by the Attorney General, and the Attorney General is appointed by the president. If the special prosecutor acts in a way the president does not like, the President can choose to fire him at any time. It is convenient to argue that the president do not dare to do so is because Congress acts as a check on his actions and can impeach him if he acts unlawfully. But why would the Congress do this if the Senate has a Republican majority? Why not simply allow the removal of Mueller and then support the president against impeachment proceedings? The reason, ultimately, is concern for how voters will respond. If representatives stand on the wrong side of critical questions like this and act entirely out of political expediency, they will be at risk in the next election cycle. 

When we talk about “rule of law,” we too often fail to consider the subject. Whose rule of law? Who needs and benefits from the rule of law? Who is to exercise and implement the rule of law?

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Protesters gather on the steps of the Minnesota capitol building to protest the ouster of U.S. Attorney General Jeff Sessions, fearing special investigator Robert Mueller is next. Photo by Fibonacci Blue available at Flickr.com under Creative Commons license.

Missing Agents

Without the people standing behind, the shouts of the liberal camp in China are too weak a force to push meaningful rule of law. But this is a common misunderstanding that liberal thinkers have. They don’t truly believe in the people. Yes, “the people” are those brainwashed masses on the streets. They often speak out of ignorance and act out of ignorance. But other than these people, who can we rely on? 

The alternative is to place your bets on those “above,” as we say in Chinese – on the shangmian (上面), by which we mean of course the elites. We can imagine that they might be “wise and capable rulers,” who can educate China and guide it to rule of law. This frame of mind actually shows no development from that of the Spring and Autumn and Warring States periods. At that time, Confucianism, Mohism and Legalism all shared the same essential logic – that we might all rely on the benevolence of those “above,” on their wisdom and grace. 

But can we truly rely on “the above”? If we understand as a matter of course – and I think most everyone does – that the President of the United States cannot simply be relied upon, even under a system of checks and balances, to always have the best interests of the people at heart, what makes us assume that un-elected and unaccountable leaders will make and enforce laws that are in the interests of the people? Will their rule of law look after the best interests of the rest of us, of the people down "below."

The logic is simple. If a leader is no good, rule of law regresses. How can that be rule of law? By any definition, it is “rule by man” (人治). But this is a logic we easily forget. If we fail to believe in the people, and if we fail to involve the people in the process of governance, then rule of law in China will always lack a subject. And legal reforms in the name of rule of law will remain powerless. The liberal scholars and intellectuals who push for rule of law will remain isolated and locked in self-contradiction. Society will move in the opposite direction of democracy and rule of law. 

This is why, barring real political change, it will be impossible to preserve the fruits of reform and opening. The new order established in the wake of Deng Xiaoping’s “southern tour” in 1992, as China accelerated economic development but excluded the option of political reform, contains a basic genetic flaw that will ultimately make the gains that have come with reform unsustainable.

China’s rule of law, with its missing agents that no one seems capable of acknowledging, will deteriorate in the end. 

Finding New Constructive Power

The only way to preserve the fruits of reform is for the nation to progress beyond reform and opening, beyond the DNA of the “southern tour,” and beyond even the original and revolutionary ideas of 1978. China must put ordinary people in charge of the country’s political system. To say this is neither so radical nor so terrifying as it may sound. It means only implementing that actual spirit and “basic system” (根本制度) of the 1982 Constitution – real representation through the people’s congress system, and real elections for representatives at the county and township level. 

If no progress can be made on people’s congresses, then legal reform in China is truly stuck, and the “constructive power” (健康力量) within the system can no longer be depended upon. Why do we refer to the 1980s as a golden era for reform? Because many constructive forces for reform actually existed within the political system. After 1989, the constructive power of the system shrank dramatically and those working within the system to further narrow self-interest over broader public interests gained the upper hand. We might say that the start of legal reforms in 1999, and the limited pursuit of political reform as an agenda in the Hu-Wen administration from around 2003, are signs that constructive power has not yet been exhausted. But the forces, though not extinct, are dangerously weak.

Power within society, meanwhile, has grown substantially as a result of economic reforms, particularly as people have gained more access to information, and potentially more channels through which to speak. In some cases, public opinion has been able to exert some pressure on the government. In a number of cases, this has resulted in reform that has brought the elimination of unjust laws, as in the example of the detention and repatriation system, and the re-education through labor system.

If there is another milestone of the development of “rule of law” in China it is the growth of civil society. The 2003 “Sun Zhigang Incident,” in which the death of a young migrant worker while in police detention in Guangzhou caused a national outcry, much of it mobilized through the internet, that eventually led to the repeal of the national law on migrant detention and repatriation, remains the most outstanding example. In that case, civil society was able to pressure the government to make institutional changes. There are a number of other examples, few but precious, that I have highlighted in the timeline accompanying this article. All are examples on the Sun Zhigang case model, in which citizens sacrifice their freedom, or even pay in blood, for hard-won institutional progress.

But we must recognize the serious limitations of the Sun Zhigang case model – not least the immense human cost of protecting the rights of citizens, and the lack of predictability and replicability. In the case of Sun Zhigang, the positive results were determined by many incidental factors, such as the political moment afforded at the time by the SARS epidemic, which exposed China’s government to huge international pressure. 

When it comes to deciding whether a law or policy should change in China, the concerns to be weighed are those, first and foremost, of the leadership, of the elites in power. The logic of the needs of society are subordinated to the logic of the needs of those in power. This should remind us that examples like the Sun Zhigang case are not really models that point to a rule or way forward so much as precious and precarious exceptions. They are not an alternative to democracy. 

In recent years, rule of law has gone into retreat in China. And why should that surprise us? As politics goes, so goes the rule of law.

China Myths

Perceptions of China are often driven by frames, or myths, that hinder our understanding of the facts. Where do these myths come from? And what assumptions are we making when we employ them? 

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Missing Agents

3. September 2019
Author
Zhang Qianfan

Zhang Qianfan (张千帆) is a constitutional law professor at Peking University Law School, and a leading constitutional scholar and public intellectual in China advocating constitutionalism and judicial reform. He is the author of Constitutional Law, one of China's most-read texts on constitutionalism.