Socialist Rule of Law with Chinese Characteristics

Recently, I came across two assertions, peddled by Western liberal scholars who should know better:

1) China does not have ‘rule of law’, but only ‘rule by law’. The implication is that law is a tool or weapon of governance, and that the government itself is not subject to the law.

2) Since Xi Jinping became chairman, China has experienced an unremitting pattern of ‘authoritarian repression’. Governmental corruption, foreigners working under false pretences, unregistered educational institutions, illegal religious gatherings, malicious social media, shadow banking, prostitution – these and much more have all felt the sting. To use a metaphor used by Xi himself, it is like a hot chili dish: many have been sweating under the pressure of scrutiny.

But it is rarely asked what lies behind such a move. Is it simply because the determined Chinese government is by nature ‘authoritarian’, as Western European political terminology likes to characterise communism? Is it due to the trawling out of old Cold War rhetoric, since global communism is once more a threat to the fragile liberal ‘world order’? Or is it because Xi Jinping is simply an old-style Leninist hard man? The speculation could go on, but it routinely misses the mark.

Instead, we need to focus on the development of a socialist rule of law in China. This task entails engaging with the careful scholarship and often complex legal arguments that elaborate on the question of rule of law. While there is a plethora of such scholarship in China, I would like to focus on two recent and detailed studies: He Qinhua and Qi Kaiyue, ‘Rule by Law Becomes Rule of Law: The Constitutional Amendment Promotes Construction of a Socialist Rule of Law’ (2018); Chen Youwu and Li Buyun, ‘Forty Years of the Theory of Rule of Law in China: Development, Innovation and Prospects’ (2018). Both articles use the framework of historical development, especially over the four decades of the reform and opening up, but in the process they provide careful assessments of the debates over key legal terms and the overall framework of the construction of socialism.

Key Terms

On the 11th of March, 2018, at the thirteenth National People’s Congress, the preamble to the Chinese Constitution was amended from ‘improve the socialist legal system’ to ‘improve the socialist rule of law’. The change was only in the final character of the phrase, from 制 to 治 – although they have exactly the same pronunciation: zhì. The amendment may seem simple enough, but – as might be expected – it has a long history and entails careful differences in meaning. The following is an effort to explain, as clearly as possible, what it means.

Let me begin by identifying the main terms used in debates and government policies.

Fazhi (法制): This term is a two-character abbreviation of falü zhidu (法律制度), which has the meaning of ‘legal system’, although it is occasionally translated as ‘rule by law’. The term designates the various institutions that comprise the whole system of law in a country.

Fazhi (法治): Rule of law, with the sense that the law (fa)[1] rules or governs. In this case, zhi (治) has the senses of administer (guanli) and govern (zhili). This formulation raises the law from being one component of a larger whole to being a determining framework for the whole.

Renzhi (人治): This is the ‘rule of human beings’, and is the opposite of ‘rule of law’.

Yifazhiguo (依法治国): The most common phrase of all, with the meaning of ‘governing the country according to law’. The character yi (依) has the senses of ‘depend on’, ‘comply with’, and thus ‘in accordance with’. In many respects, ‘governing the country according to law’ is the practical reality of ‘rule of law’.

Shehuizhuyi fazhi (社会主义法治): ‘Socialist rule of law’, in clear distinction from a capitalist and ‘Western’ rule of law.

Legal System (Rule by Law) and Rule of Law

Let us focus initially on the relationship between ‘legal system’ and ‘rule of law’, especially in light of the constitutional amendment of 2018 (He and Qi 2018, 7-8).

From ancient usage to the multi-volume Cihai dictionary,[2] ‘legal system’ appears with two overlapping senses: a static meaning with reference to the existing laws and regulations of a country; a dynamic sense, which includes formulating legislation, revision, enforcement and supervision.[3] Further, a legal system is one system among others, comparable to the economic, political and cultural systems of a country. All of these are systematic components of a larger whole. Obviously, the term is in its basic sense quite neutral: every country has its legal system, in both static and dynamic dimensions.

As for ‘rule of law’ (fazhi), the modern Chinese meaning has three influences. The first is from the Western liberal tradition’s notion of ‘rule of law’. Chinese scholars are more than willing to acknowledge this influence, especially its role in spurring the development of a distinct Chinese approach. At the same time, they are also very clear that the concept should not be appropriated in its full liberal sense, in which rule of law has been developed within a capitalist framework in order to bolster bourgeois democracy and the sacrosanct private individual. Instead, it has – like Marxism – been ‘sinified’ (zhongguohua). Thus – secondly – a common move is to go back to classical texts to locate usages of fazhi. We need to be very careful here, since ancient usages of fazhi do not have the modern sense of ‘rule of law’. Instead, the basic position is that if standards, regulations, and thereby the law is the underlying basis and is systematically enforced, a country’s governance will be stable and strong; if not, the result will be chaos.[4] Intriguingly, it was the oft-maligned ‘Legalists’ (fajia)[5] who proposed that ‘strong governance arises from standards and the law’ (zheng qiang shengyu fa), and that governance should work ‘according to law as the basis’ (yifaweiben) (He and Qi 2018, 7).

Third – and most importantly – is the Marxist tradition. This is where the ‘socialist rule of law comes into play. As Chen and Li (2018, 73) observe, there is a fundamental difference between ‘socialist rule of law with Chinese characteristics’ and the rule of law found in Western liberal traditions. How? China follows the socialist road, which entails Marxist jurisprudence, takes account of China’s concrete conditions, and embodies the will the Communist Party and the people.

In light of this brief exposition, it remains unclear why there was a distinct shift in the constitutional amendment of 2018, from ‘legal system’ to ‘rule of law’. On initial appearances, there appears to be relatively little conflict between the two terms, for they demarcate distinct realms. A legal system has both static and dynamic senses, and it is one among a number other systems in any country. Rule of law is different, for it frames not only the nature of the legal system but also the other systems in question.

Rule of Law versus Rule by Human Beings

At this point, another crucial distinction needs to come into play: between rule of law and rule of human beings (renzhi 人治). As Chen and Li point out (2018, 67-68), this opposition was the real impetus for emphasising the rule of law.[6]

On this matter, the debates from 1978 to 1997 are instructive. They may be divided into three positions: 1) Laws are made human beings and carried out by human beings, which in a Marxist framework entails the proletariat, Communist Party and people. It follows – so the argument went – that all a country needs is a legal system developed by human beings; it does not need rule of law; 2) The opposition between ‘rule of law’ and ‘rule of human beings’ is a false one, for a country requires both; 3) The superiority of the rule of law over the rule of human beings. Thus, the rule of human beings risks emphasising that it matters not whether the law is good or bad, but rather that the ruler is wise and virtuous (sheng zhu xian jun). By contrast, the rule of law is inseparable from socialist democracy: socialist democracy is the basis of rule of law and rule of law is the guarantee of socialist democracy.

The third position came to be accepted by the end of the 1990s, for the following reasons. To begin with, one can see a certain influence of ‘rule of human beings’ on the ‘legal system’. In its proper usage, ‘legal system’ is a neutral term – as we have seen earlier – but when connected with the ‘rule of human beings’ it may become ‘rule by law’, in which the law becomes an instrument of rule. In fact, it was precisely this influence that led to the alternative translation of ‘legal system’ (法制) as ‘rule by law’. The catch is that such a translation may be misleadingly ambiguous in English: on the one hand, it can mean ‘rule according to law’; on the other hand, it may suggest ‘by means of’, with law as a tool of governance, deployed by those in power as they see fit.

This connection facilitated a greater emphasis on rule of law, and thus the shift from ‘legal system’ – now understood as ‘rule by law’ – to ‘rule of law’. At the same time, there continue efforts to ensure that ‘legal system’ remains uncontaminated by ‘rule of human beings’. This approach is especially evident in the study by He and Qi: after delineating the different positions concerning ‘legal system’ and ‘rule of law’,[7] they argue that one must maintain distinct senses for both terms but also maintain their mutual viability. They are distinct entities but they operate in a fruitful dialectical relationship: the legal system requires rule of law to enable its improvement; at the same time, rule of law is meaningless without a legal system in which rule of law can be embodied. In other words, the legal system is the basis of the rule of law, but rule of law constitutes the goal and value of the legal system (He and Qi 2018, 11).

Further, we may identify a distinct historical reference (recent and ancient), which is embodied in the observation that the ‘rule of human beings’ brings eguo – evil fruit or results (He and Qi 2018, 14). The more recent reference is to the trauma of the Great Proletarian Cultural Revolution, in which Mao Zedong – through the ‘cult of personality’ – was raised to a whole new level as the leader who would keep matters on the right path against all those who would ‘deviate’. This is clearly the allusion in Deng Xiaoping’s observation in 1986: ‘Through the reform, we intend to straighten out the relationship between the rule of law (法治) and the rule of man (人制)’ (Deng 1986, 176-77). The twist is that during the Cultural Revolution Mao unwittingly embodied the ancient Confucian sage-king, whose virtuous will would ensure that all was good irrespective of whatever laws were in place. And this is the more ancient register of this point, for there is a tendency in Confucianism is to elevate the ‘rule of human beings’ above the ‘rule of law’ – as long as the human beings in question were rulers who embodied virtue. After the Cultural Revolution, the response has been to emphasise more and more that the rule of law requires human rationality, legal principles that are conducive to the maintenance of legal authority, and the need to protect human rights for the sake of a good and orderly society (He and Qi 2018, 8).[8]

Governing the Country According to Law

Finally, we come to the practical implications of all this complex legal debate. The practical dimension is embodied in the phrase, ‘governing the country according to law’ (yifazhiguo). In other words, this phrase indicates the connection between theory and practice: the development of the theory of rule of law is inescapably related to the practice of governing the country according to law. ‘Governing the country according to law’ is particularly favoured by Chen and Li – not least because it is a preferred designation by Xi Jinping – and they connect its development closely with the four decades of the reform and opening up (gaige kaifang). They identify (2018, 65-67) three main stages in its development:

1) 1978-1996, the early stage of fermentation, in which rule of law begins to appear as a term, in opposition to the rule of human beings.

2) 1997-2011, the gradual formation of the rule of law, with the landmark identification in September of 1997, at the fifteenth national congress of the CPC, that connected ‘governing the country according to law’ and building a – literally – ‘socialist rule of law country’. This phrase was incorporated in the Constitution in 1999.

3) 2012 to the present, which entails the development in all respects of both practice and theory. This period is based on the principle (from 2012) that ‘the rule of law is the fundamental way of ruling the country’. This principle was elaborated further at subsequent congresses and in statements by Xi Jinping.

This is all very well, but what does it mean in practice? The key term here is ‘in all respects’ or ‘in an all-round way’ (quanmian). At this point it is best to quote Xi Jinping, from his lengthy report to the nineteenth congress of the CPC in2017: ‘We must promote the rule of law and work to ensure sound lawmaking, strict law enforcement, impartial administration of justice, and the observance of law by everyone’. He added that the law must be ‘enforced in a strict, procedure-based, impartial, and non-abusive way’ (Xi 2017b, 35; 2017a, 16).

Simply put, it means that everyone in China – whether citizens or foreigners – are subject to the observance of the law. The socialist rule of law applies to all, from the highest official in the Politburo, through the common person working hard for the advancement of China, to any foreigner who happens to be in China for whatever reason.

To return to the (deliberately) misconstrued point with which I began: it is not that Xi Jinping is a communist hardman, repressing what Western liberals regard as ‘freedoms’. And it is certainly not the case that socialist China deploys ‘rule by law’ to achieve its aims – the use of this phrase is an ignorant and malicious misreading of the actual situation in China. Instead, it means that Xi Jinping and the government are serious about strict observance of the socialist rule of law. Anyone who takes time to study this matter will soon realise that this is the reality in China today.

These days, you simply cannot get away with paying lip-service to the law and doing otherwise, with a carefully targeted wad of cash for the official involved. This applies to a whole range of activities that were regarded as somewhat normal a decade ago: prostitution, which has been effectively shut down in more and more places in China; unregistered educational institutions that used compliant visa officials to give foreigners dodgy visas; fake student identity cards for discount travel in the holiday seasons; gifts during festivals for compliant government officials; unregistered religious activities, through which foreigners used to think they might undermine the Chinese government; foreign involvement in protests in Hong Kong in the recent past; or indeed foreigners working in China in a grey zone of tourist or business visas.

The list could go on and on, but the point should be clear: socialist rule of law in China is here to stay and it will be developed much further.

Bibliography

Chen Youwu and Li Buyun. 2018. ‘Zhongguo fazhi lilun sishi nian: Fazhan, chuangxin ji qianjing’. Zhengzhi yu falü 2018 (12):64-75.

Deng Xiaoping. 1986 [2008]. ‘Guanyu zhengzhi tizhi gaige wenti (1986.09-11)’. In Deng Xiaoping wenxuan, Vol. 3, 176-80. Beijing: Renmin chubanshe.

Graham, Angus Charles. 1989. Disputers of the Tao: Philosophical Argument in Early China. La Salle: Open Court.

He Qinhua and Qi Kaiyue. 2018. ‘Fazhi chengwei fazhi: Xianfa xiugai tuijin shehuizhuyi fazhi jianshe’. Shandong shehui kexue 275:5-15.

Liu An. 2010. The Huainanzi: A Guide to the Theory and Practice of Government in Early Han China. Translated by John Major, Sarah Queen, Andrew Meyer, Harold Roth, Michael Puett and Judson Murray. New York: Columbia University Press.

Xi Jinping. 2017a. Juesheng quanmian jiancheng xiaokang shehui, duoqu xinshidai zhongguo tese shehuizhuyi weida shengli (2017.10.18). Beijing: Renmin chubanshe.

———. 2017b. Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era: Report to the 19th National Congress of the Communist Party of China, October 18, 2017. Beijing: Foreign Languages Press.

Notes

[1] I follow the modern Chinese approach in seeing fa (法) as primarily meaning ‘law’. Traces of its earlier meanings may be found in its semantic field, especially the two senses of ‘method’ and ‘standard’.

[2] The earliest appearance is in the ‘Yueling’ (Proceedings of Governments in Different months) chapter of the Book of Rites, dating back to the fifth-second centuries BCE. Here we find ‘restore the legal system’ (xiu fazhi), in the dynamic sense (https://ctext.org/liji/yue-ling). The Cihai is the most comprehensive dictionary in China, having first been published in 1915. It will appear in yet another revised version in 2019. The Cihai distinguished three senses of ‘legal system’: the widest, which incorporates all the laws (written and unwritten) of a state and its various political, economic and cultural systems; a medium, which incorporates legal system and legal order; and the narrowest, the legal system itself (falü zhidu). The narrowest is the most common usage.

[3] One may see this distinction in the use of the zhi (制) character, which can mean both ‘system’ (zhidu) and ‘formulation’ (zhiding).

[4] This is particularly the case with Huainanzi (compiled in the second century BCE), in the ‘Fanlun ’ chapter: ‘Knowing the origin of law-governance [法治], one can change with the times; not knowing the source of law-governance [法治], although following antiquity, one ends in chaos’ (zhi fazhi suo you sheng, ze ying shi’er bian; buzhi fazhi zhi yuan, sui xun gu zhong luan) (https://ctext.org/huainanzi/fan-lun-xun). Or, as the relatively recent translation of the Huainanzi puts it, somewhat more voluminously: ‘‘If you understand from whence law and governance arise, then you can respond to the times and alter. If you do not understand the origin of law and governance, even if you accord with antiquity, you will end up in disorder’ (Liu 2010, 611).

[5] ‘Legalism’ presents us with a classic trap of inadequate terminology that continues to be used widely, albeit always with caveats: the ancient fa is not restricted to ‘law’ and they were not a ‘school’ as such. Added to this is the denigration – based on selective readings of certain texts – of ‘Legalism’ as ‘an amoral science of statecraft’ (Graham 1989, 267-92).

[6] Notably, the fabled Cihai dictionary makes this distinction: rule of law is opposed to rule by human whim (He and Qi 2018, 8)

[7] He and Qi also delineate three positions, although now in relation to ‘legal system’ and ‘rule of law’ (2018, 8-11): 1) the two terms largely mean the same, whether ruling ‘according to’ law, or ‘rule of law’; 2) they are quite distinct, where ‘legal system’ can tend towards an instrumentalist and autocratic view, while ‘rule of law’ is closely connected with (socialist) democracy, the universally binding function of law, and the ability for the term to be more closely attuned with the times; 3) connection and difference, in which one can see certain overlaps (as with the first point), but also distinct differences (second point). Perhaps the best formulation is that every country has a legal system, among other systems, but not every country has rule of law.

[8] We may detect here an influence from the ‘Legalist’ tradition – which was praised by Mao in his anti-Confucian moments as an alternative path for the sinification of Marxism – with their implacable emphasis on the foundation function of law.