Building the rule of law in China
- By Josef Gregory Mahoney
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E-mail Beijing Review, October 28, 2014
In China's case, when it comes to the problem of developing rule of law, the point is to first point to the elephant in the room. Second, one must ask, is the elephant capable of change? Third, if it is then will it lead change or permit it to come as it may? Fourth, what should such change entail? The elephant, so to speak, is the Party, or rather, the political values espoused by the Party and the political model it employs.
Throughout its history, the Party has demonstrated a unique capacity for change, drawn substantially from Marxism but also deriving socialism with Chinese characteristics from it. It continues to assert the Four Cardinal Principles of Deng Xiaoping, among which one finds the principle of upholding one-party rule. On the other hand, it remains Communist and Marxist, as Xi has recently reiterated. Thus, while the Party now foresees a much longer period before the development of socialism can be completed, that vision of a more full-bodied socialist future must be dramatically different than conditions facing China today, where wide, sometimes gross inequalities still proliferate.
In many Western democracies, there is foundation and protection of bourgeois, private property rights. While many reforms in China in recent years have advanced property rights, a fully bourgeois approach has not been followed. Besides, the rule of law depends substantially on following legal precedence. Precedence, however, can be a major barrier to both reform and revolution.
The framers of the American Constitution separated powers and established a firm set of bourgeois values upon which the rule of law in the United States remains tethered, some might say hobbled. Indeed, it is widely recognized that one of the framers' primary intentions was to make any dramatic changes to either the Constitution or the legal system overall as difficult as possible, especially those that arose through popular democratic assent that might challenge the status quo.
In China, many recognize that emulating other legal systems would damage Chinese advancement. From the Chinese perspective, Western democracies have not reached the end of history, nor do their models or developments provide a normative standard to which China should try to adhere. In fact, at a fundamental level, there is no template that China can copy, no predecessor to show the way. Thus, in effect, the Party not only seeks the right balance of reform and revolution under Xi's leadership, it must also find a similar type of balance in its legal reforms. It cannot accept a legal system that merely improves upon current conditions. Rather, Chinese rule of law must also remain capable of positive if not revolutionary growth and change, even if such developments unfold slowly over a long period of time.
The author is Professor of Politics and Director of the International Graduate Program of Politics at East China Normal University
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