The Rule of Law In China Retrospect and Prospect

Benedict Sheehy

RMIT University

11 Feb 2009

Background

Rule of Law believed to facilitate accountable, predictable cooperation among states in the international system: why?

Rule of Law government constrained by wishes of rational people of goodwill or at least mutual respect

Research Problem

Because of the importance of cooperation among states at the international level, it is important to determine which states are Rule of Law and which are not.

Is China a Rule of Law state? What are the prospects for China’s Rule of

Law?

Defining Rule of Law

View #1 RoL substantive elements: economic arrangements (such as free market

capitalist or socialist), governmental arrangements (such as

dictatorships or democracies), notions of human rights (such as liberal or

communitarian).

Defining Rule of Law

View #2 RoL Basic elements: Meaningful restraints on state actors and ruling elites Rules for empowering certain authorities to make law Laws are made only according to those rules Laws are publicized and accessible Laws be generally applicable and not focused on individuals Laws must be clear, consistent, stable, prospective Laws must be enforced Laws must be reasonably acceptable and accepted by the

majority (Peerenboom 2004)

Hidden Problems: The socio-political facets The Rule of Law is predicated upon a number

of questionable assumptions about: The nature of law The role of law The rule of law

Six Dimensions of the Discussion

Nature of Law Role of Law Rule of Law

West Metaphysical first principle

Settle all disputes Avoid tyranny of dictatorship

China Instrument of government control

Control of Criminals Instrument to contain violence, andMeans to enter world economy

Nature of Law in China

The Master said, "If the people be led by laws [fa], and uniformity sought to be given them by punishments, they will try to avoid the punishment, but have no sense of shame. If they be led by virtue [li], and uniformity sought to be given them by the rules of propriety, they will have the sense of shame, and moreover will become good." Confucius, Analects, Sec.. 1, pt. 1.

Nature of Law in the West

[law] is of universal application, unchanging and everlasting… it is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely…. There will not be different law as at Rome and at Athens, or different laws now and in the future, but one eternal and unchanging law will be valid for all nations and all times,” Cicero De Re Publica, III, 22.

Role of Law: China and West

China: a means of gaining legitimacy from external constituents in control of global

economy, from internal constituents as an alternative to

insurrection, self-help/vigilante, civil unrest West: a means of regulating a community not

based on ethnicity, religion or kin Expression of intrinsic values of liberalism Institutionalised values of justice and fairness

Role of Law: China

External: Accession to the WTO 2001 Increasingly active in foreign aid (evidence of

concern with international relations?) Internal:

Development of court system versus local village authorities

Development of commercial and civil laws Widely publicized prosecution of corrupt public

officials

Role of Law: West

Institutionalism: one set of rules in society Law:

the ultimate arbiter between parties in conflict (note that even violence of war is limited by Law of War e.g. War Crimes)

Principled system of dispute resolution Western liberal tradition as the settlement of the “war

of all against all” Impartial, non-class, non-sexist, non-ethnic, non-race

based, universal standard of behaviour

Nature of Law: Western theories

Legal: control actions of the powerful Coherent system Complete set of doctrines Solves problems between:

States (international law) State and citizen (public law) Citizen and citizen (private law)

Philosophico-political Solution to problem of controlling whims of Ruler(s)

arbitrariness Sets standards and avoids problems of inconsistent,

overly pragmatic outcomes of similar situations Allows predictability and stability in society

Nature of Law: Western Theories

Socio-political view: Law as settlement Arises when powerful actors see potential for own

interests Law emerges as legitimised theory and values

(DiMaggio 1988)

Nature of Law: Chinese theory

Until 1949 Form of control of criminals (Confucius quote)

1949-1976 Irrelevant obstacle to Chairman Mao’s rule

1980’s forward An arm of the government under political

control of CCP A support of the country’s economic

development

Rule of Law

China: No Aristotelian, liberal tradition Quing Dynasty 221-207 Attacked by Anti-Rightists 1950’s

West: Constrains all action King under God’s Natural Law In democracy limits even government Favours individual and property rights

Tests of the Rule of Law

Examples of Rule of Law: International legal cooperation Social unrest Governmental corruption Resort to state violence

*Remember: the Rule of Law is a settlement*

Problems in the West & Rule of Law Bush rejection of International Law,UK’s,

Australian and other states’ condonation Decline in cooperation in face of economic

crisis—discussion of protectionism Resort to democratic governmental

institutions for corruption, social unrest and restraint from violence

Not likely to effect constitutional division of powers (i.e. settlement) therefore still Rule of Law

Problems in China & Rule of Law Rule of Law as Settlement, based on economics: CCP keeps power, middle class emerges Economic legitimacy lost: Chinese government has kept control of population by economic growth

Domestically Needs growth of 8.0% per annum to absorb increases in population: Dec 2008 6.8% 50 million unemployed “migrant workers” expected in 2009 (20 milion as of Nov 2008) i.e. low paid ex-villagers, little to

lose, no place to return Collapse of industries and cities particularly in SE China

Internationally Currency bind with the USA: owns too much USA debt, relies too much on USA consumption IMF controlled by USA and China accused of currency manipulation

Law: Rule of Law Tests

Government Corruption Unabated corruption of government officials in privatisation and on-going government activities Censorship of Obama’s speech: “To those who cling to power through … the silencing of dissent” etc. Unfair compensation to locals for dispossession of farmland, and in court system e.g. tainted milk scandal—wealthy and

powerful keep unjust gains.

Social Unrest Highest amount of civil unrest on record, including highest amount of labour unrest Charging human rights advocate with “illegal possession of state secrets” in response to agitation for investigation into

school collapse in 2008 earthquake Environmental collapse in 1,000’s places: 130 million environmental refugees

Resort to state violence Hu Jintao and his generals have ordered the military to obey the Communist Party "at any time, under any circumstances“

in response to international and domestic environment (Feb 3, 2009), no resort to the law courts to control people

Demise of the Rule of Law

China set to lose its use for Rule of Law: Less need of international recognition

Global economic crisis is turning countries inward Successful foreign policy

Caribbean Africa

Military success: space conquest/platform for war: Satellite destroyed

Internal success and failure Based on economic wealth—private property protected by private

law: loss of private wealth Based on maintaining CCP position as sole authority: objective is

CCP survival, not survival of settlement Rule of Law no longer assists CCP stay in power as private

wealth disappears

Rule of Law in China: welcome backwards Questions:

Has Rule of Law ever existed in Communist China? Is “Rule of Law in China” the whim of the CCP through its

law-making powers? Rule of Law is Western liberal fantasy used by CCP to:

Assure western voters to ignore human rights abuse Assure western business it is safe to invest Provide legitimacy to the CCP among rising middle class

Rule of Law has not constrained powerful in government or economy Latest example: tainted milk scandal outcome: 2

sentenced to death, 10 jailed + minimal compensation to victims

Rule of Law in China: Welcome Backwards Rule of Law states require separation of

powers between executive, legislative and judicial branches

China: Supreme People’s Court is answerable to the

National People’s Congress and its Standing Committee

Local courts answerable to the local committees

Standing Committee is the final arbiter of legal interpretation