China's Rule of Law: Democracy, Economy, and Reform

Introduction

A kind of democratic transformation is underway in Communist China, due in no small part to China's race toward modernity. Such modernity, however, is highly dependent upon China's ability to operate according to a credible rule of law. Everywhere in China, the rule of law is touted as the center of its new and rising ethos (Peerenboom 2002:1). Meanwhile, China is poised to have the largest economy on the globe in the 21st century and desires to leave its 20th-century setbacks well behind it. If "the hallmarks of modernity are a market economy, democracy, human rights, and rule of law" (Peerenboom 2002:1), then China hopes to be well on its way to being perceived as a modernized nation. It is the last of these hallmarks that concerns this paper. Because the rule of law in China is also tied to China's stance on the economy, democracy, and human rights, this paper examines the rule of law as it touches on each of these aspects and shows how it has been shaped by the past as much as it is being shaped by projections of the future and China's presence on the world stage.

Background: What Is the Rule of Law?

China is a one-party state. Yet, while nations like the United States view democracy as something to be theoretically pursued — a kind of object-goal — China views its political system and the rule of law "as a means to achieving larger national ends" (Li 2012). Eric X. Li, writing for The New York Times from Shanghai, observes that China is changing its political direction: "Its leaders are prepared to allow greater popular participation in political decisions if and when it is conducive to economic development and favorable to the country's national interests, as they have done in the past 10 years" (Li 2012).

While China exerts authoritarian rule, it tends to view political rights not as "God-given" but as "privileges to be negotiated based on the needs and conditions of the nation" (Li 2012). PBS (2007) states that "China is racing to reshape the rules of society" as its economy grows and threatens to overtake the United States as the world's largest. In an effort to encourage interest articulation and promote the rule of law, lawyers are now traveling the Chinese countryside engaging locals with messages such as: "This is the Gonxian People's Court, according to PRC Civil Procuratorate Law number 120 — no matter how small the case is, we treat it fairly." PBS asserts that Communist China is engaging in Western-style legal reform, though a perceptive observer might argue that China is simply pursuing a system of politics as an end in itself. Alternatively, China may be attempting to stimulate interest aggregation in order to appeal to Western nations on the world stage.

The reality may be, as Randall Peerenboom states, that China's rule of law is a ruse. After all, it is "foreign investors and human rights activists [who] keep up a steady drum beat calling for realization [of the rule of law]" (Peerenboom 2002:1). Many outside observers and critics of China suggest that its so-called rule of law is nothing more than a superficial attempt at legal reform — simply a "sinister plot to hoodwink foreigners into investing in China or a jaded attempt by senior leaders to gain legitimacy abroad while actually just strengthening the legal system to forge a better tool of repression" (Peerenboom 2002:1). Such a maneuver would not be without historical precedent; Stalin's Soviet Russia similarly deceived the West. If China's sloganeering is any indication, however, then the rule of law — at least in theory — has come to China, for good or ill.

In either case, China wants the world to know that it is operating according to a rule of law. But what exactly is a rule of law, and why has it not appeared before in China? China's long and ancient history is one of dynasties and feudalism. It was only in the great race toward modernity in the 20th century that China made any serious attempt to catch up with the industrialized world. That century was also one of China's worst, culminating in the dictatorship of Chairman Mao and his violent, essentially lawless repression of the people. Today, China looks to move past that recent history by embracing a world-recognized rule of law — best described as "a system in which law is able to impose meaningful restraints on the state and individual members of the ruling elite" (Peerenboom 2002:6). In other words, the law is supreme over the government, and before it all people are considered equal.

Historical Context: Mao and the Cultural Revolution

In more practical terms, China's rule of law may be illustrated in the way its political system functions. China's government operates by means of an annual "two sessions" — "big political events of contemporary China that include all aspects of the national economy and the people's livelihood" (Shuzhen 2010). China's People's Congress System works somewhat like the U.S. Congress; its equivalent is the National People's Congress, which legislates and amends laws, reviews and approves budgets, and holds the sole right of "electing and removing officials" (Shuzhen 2010). The National People's Congress holds the top position in the Chinese government's power structure. It oversees the Standing Committee of the National People's Congress (which oversees the Chairmen's Council), as well as all Special Committees — such as the Ethnic Affairs Committee, the Law Committee, and the Internal and Judicial Affairs Committee — and the Working and Administrative Bodies of the Standing Committee (Shuzhen 2010). Each of these committees and sub-committees is given a degree of oversight that branches out to ever wider areas of the populace. It is, in other words, a highly bureaucratic pyramidal structure.

If China in the 21st century looks to capture the world's attention by announcing its commitment to the rule of law, it does so after climbing out of the deadly experiments enacted by Mao Zedong decades ago. Chairman Mao, during the Cultural Revolution of the latter half of the 20th century, attempted to secure his position and prestige through coercive tactics and Marxist-inspired rhetoric. A confirmed Communist ideologue, Mao insisted upon atheism for a nation whose religious practices ranged from Confucianism to Catholicism. Under Mao, religion was suppressed and a new vision of humanity was promoted — one not based on any objective rule of law but on the whim of Mao himself.

Mao had already offered something of a public apology for the Great Leap Forward when, in 1959, he stated, "The chaos was on a grand scale, and I take responsibility" (Johnson 1992:551). Nonetheless, the terrible drama was not yet concluded. Mao's acknowledgment of the millions left dead was merely an intermission in the great ideological upheaval that was destroying China. He bowed out of politics briefly, but would return to center stage within half a decade. With his return, the Cultural Revolution got underway, and anti-religious sentiment ran high. Mao sought to destroy religion because it offered a rule of law contrary to what he himself wanted to establish. It was "the purpose of the Cultural Revolution as a whole to eliminate the principal features of the old society, and in particular all that [had] the taint of foreign origin" (Fitzgerald 1967:124). Christianity, obviously a religion of foreign origin, was deemed suspect and heaped with scorn in the xenophobic and intensely nationalistic environment that was turning China upside down.

Thus, it was no surprise to see suppression come to the doors of different religious institutions throughout the land: such institutions were deemed dangerous to the welfare of the State, whose identity was fused supremely with Mao himself. In 1964, Mao declared his new plans for the youth of China, recognizing that securing his ideological future required controlling their minds: "The present method of education ruins talent and ruins youth. I do not approve of reading so many books. The method of examination is a method of dealing with the enemy. It is most harmful and should be stopped" (Johnson 1992:552). Places like Sacred Heart convent in Peking were closed, the sisters expelled, and schoolchildren sent home. Not limited to Christianity, Mao's Cultural Revolution targeted "Moslem institutions and Buddhist sanctuaries" as well (Fitzgerald 1967:124).

The Cultural Revolution was fueled by Mao's own Romantic tendencies. Unable to accept reality on its own terms, Mao nursed his "hatred of Soviet Russia and its leadership, and of the new class of bourgeois bureaucrats who had frustrated his Great Leap" (Johnson 1992:554). The precise trigger that sent Mao into revolutionary mode was a personal insult in a theater play that clearly attacked his agricultural policy. Mao vowed revenge, gained military support, and attracted disaffected youth with statements like: "We need determined people who are young, have little education, a firm attitude and the political experience to take over the work... When we started to make revolution, we were mere twenty-three-year-old boys, while the rulers of that time were old and experienced. They had more learning — but we had more truth" (Johnson 1992:555). The only truth Mao had on his side was pride and force. He was the antithesis of the rule of law.

For that reason, "three out of four main creeds" of foreign origin were marked for elimination when the Cultural Revolution began (Fitzgerald 1967:124). Mao was not simply out to eliminate personal foes — he was out to purge China of everyone and everything that did not submit to him. Thus, while traditional Chinese culture offered citizens a choice among Confucian ethics, Buddhism, and Taoism, the new Chinese culture sponsored by Mao offered only Maoist doctrine — there were no other alternatives. Even Mao had earlier acknowledged the importance of engaging with Confucianism, but insisted it be filtered through a Marxist lens: "It is our task to study our historical legacy and evaluate it critically with the Marxist method" (Zhang and Schwartz 1997:195). The difficulty was that Confucian doctrine "contradicted socialism" (Zhang and Schwartz 1997:195). When Communism's cultural revolution broke with the past, Confucius had to be "totally rejected" (Zhang and Schwartz 1997:197). The Cultural Revolution's platform therefore targeted what it called the Four Olds: "old thought, old culture, old tradition, and old custom" (Zhang and Schwartz 1997:197). The media took Mao's cue and "condemned Confucius in the harshest terms" (Zhang and Schwartz 1997:198).

Mao's policies finally died with him, and out of the rubble emerged the old Chinese spirit — malformed and weakened by decades of mistreatment, but still alive. It was now being wooed by the West and tempted to join the world powers on the world stage. All it had to do was accept the bureaucratic doctrine and the superficial propaganda of the West. To fuel its economy, China did just that. Its new rule of law may therefore be categorized as an exercise in the efficacy of bureaucracy.

Conclusion

The WTO relationship remains tense, but with China's announcement of governance through the rule of law, the country hopes to ease the strain in its relationship with the West. As Jamie Horsley reports, "No one claims that China is today a rule of law country. But most would acknowledge that China has moved a long way from the primarily 'rule of man' governance approach of traditional China toward establishing a legal system that increasingly seeks to restrain the arbitrary exercise of state and private power" (Horsley 2006:1). China may still fall short of what the West would recognize as a genuine rule of law, but it may be argued that China is at least striving to build one, even if its attempts appear superficial. Deng Xiaoping's opening of China to the West at the end of the 1970s was surely a landmark turn away from the authoritarianism that characterized Mao's rule. Following that opening was the "1982 post-Cultural Revolution Constitution [which] called for upholding the 'uniformity and dignity of the socialist legal system'" (Horsley 2006:2). Unlike Mao's own declarations, this one implied that no single individual was above the law — a significant public and official reversal of Mao's subjectivist position, and at least a formal acknowledgment of a law that was universal and objective.

Whether China is any closer to following that law in practice remains the central question. Aside from all supposedly good intentions, China remains a nation ruled by one party, which has shown no intention of relinquishing control over topics it deems sensitive — such as searches relating to the Tiananmen Square uprising on the Internet. China may be steadily growing its bureaucratic government model according to Weber's design, but that is no guarantee that the rule of law it actively promotes is any closer to materializing. In reality, the rule of law that China advocates is closer to sloganeering and strategic posturing aimed at easing East-West tensions than it is to genuine legal reform. Thus, while China stands poised to become the world's largest economy, it also works to shed its image as a backwards country that can be readily exploited by the West. Instead, it wants to be seen as a nation governed by a rule of law. Just how it plans to demonstrate that remains to be seen.