Chinese Law - Rule of Law

Rule of Law

One of the most commonly used phrases in contemporary China, by legal scholars and politicians alike, is fǎzhì (法治). Fǎzhì can be translated into English as “rule of law”, but questions have often been asked whether Chinese leaders meant "rule by law", which means the instrumental use of laws by rules to facilitate social control and to impose punishment as understood in the Legalist tradition. The related concepts of yi fa zhi guo (以法治国: "governing the nation in accordance with law") and jianshe shehui zhuyi fazhi guojia (建设社会主义法制国家: "building a socialist rule of law state") have been part of the Chinese Communist Party's official policy since the mid-1990s. In 1999, the NPC adopted an amendment to the Chinese Constitution, incorporating both concepts in Article 5.

The existence of the rule of law in China has been widely debated. When discussing Chinese law, it is worth noting that various expressions have been used, including “strengthening the law,” “tightening up the legal system,” “abiding by the law in administration,” “rule by law,” and the “rule of law” Different shades of meanings have been attached to each of these terms, but Chinese officials and scholars have employed the expressions rather loosely and sometimes interchangeably.However, the central government had originally preferred the expression, “strengthening the law/legal system” to “the rule of law”. It was thought that the latter might give a controversial connotation of the instrumentality, while the former conveyed a straightforward meaning of strengthening the law and institutions. “Strengthening the law” meant reform of legislation and enforcement of laws. There are differing theories of the rule of law. One theory is the "thin", or formal, theory of rule of law, and the other is the "thick" theory.

The "thin" theory of rule of law is described by Randall Peerenboom as at the basest level incorporating a legal system that imposes meaningful restraints on the state and individuals in ruling power, that the law is supreme, and that all citizens are equal before the law (Peerenboom, 2). According to Lon Fuller’s account of thin theory, rule of law exists in a society when the laws of that society are “general, public, prospective, clear, consistent, capable of being followed, stable, and enforced” (Peerenboom, 3). The thin theory has also been explained by Joseph Raz as emphasizing the formal or instrumental aspects of a legal system regardless of whether it is part of a particular political structure, i.e. a democratic or non-democratic society. Thick theory rule of law espouses all the elements of thin theory in addition imposes a political, social, and economic concept into the rule of law. The rule of law is regarded by some as presupposing political or economic structures of liberal democracy, human rights and other ideal socio-legal order. Some scholars believe that given China's socialist and non-democratic political system and practice, it is at best regarded as a country of rule by law with law used by the state as an instrument for social control. However, others rely on the formal or thin theory of rule of law to interpret fazhi as a legal reality in China. Additionally, some believe that China may still fall short of the thin theory of rule of law.

Of particular relevance to the second principle set out above, was the enactment of the Administrative Permission Law of the PRC (APL) on 27 August 2003, effective from July 2004. The APL for the first time requires all laws and regulations that subject any civil act to approval requirements to be published.

The APL also provides that only those laws adopted by the National People’s Congress or its Standing Committee, administrative regulations promulgated by the State Council, and local regulations adopted by the local people’s congresses may impose administrative approval requirements. Individual ministries or agencies (central or local) do not have such powers except in specified circumstances. This is consistent with the hierarchy of laws and regulations provided under the Legislative Law of the PRC. The enactment of the APL represents an encouraging step forward.

Despite the newly elevated role of courts in Chinese society, there still remains some consensus about defects in China’s legal system in regards to progressing towards the rule of law. Scholars point to the following defects as slowing movement toward rule of law. These include:

• First, the National People’s Congress is ineffective at executing its constitutional duty to legislate and supervise the government.

• Second, the Chinese Constitution is not treated as the supreme law, nor is it enforced.

• Third, the judiciary is not independent from political pressure. On the other hand, direct intervention in particular cases by the CCP has lessened in recent years, as has the direct influence of the CCP on the legislative process.

• Fourth, there is a high level of corruption among public officials. Personal favors, bribery, and taking of public monies are all too common at all levels of government.

• Finally, the legal profession is inadequate for lack of qualified attorneys and judges. This failure is being remedied by legislation aimed at instituting higher educational standards for judges, opening more courts and law schools throughout China.

In the 2000s, the Weiquan movement began in the PRC, seeking to advance citizens' rights partly by petitioning for enforcement of existing laws, and partly through activism. Lawyers in the movement have seen some court victories, but in other cases they and their families have been ostracized and tortured for their activities.