The dynamics from the ideal to the reality----The rule of law in China*
张骐
【全文】
I. Introduction
China is doing her best with great enthusiasm to build up a country that is based on the rule of law. The process of realizing the rule of law in China, with 1.25 billion people and five thousand years civilization is an unprecedented venture and one of the most exciting events in the world today.
This paper argues that implementing the ideals of the rule of law and making them into a reality in China is a dynamic process. There are some close connections between the rule of law and Chinese cultural tradition, which can contribute significantly to constructing the foundations of the rule of law, but there are also some hindrances, which must be overcome. The most important ideal that needs to be addressed is that “ the people demand that the government and its officials abide by law”.
As the link between the rule of law and society is a dynamic one, the huge developments in Chinese society regarding the introduction of the market economy and democratization in the People’s Congress and in the countryside will be examined below. Also, as legal institutions are the vehicles that realize the rule of law, reform in the Chinese legislature, judiciary and legal education will also be discussed below. Finally, the author will conclude that the realization of the rule of law is just like a newborn baby and there is a long way to go before the ideals become a reality in China.
II. The ideal of the rule of law in China
The ideal of the rule of law in China consists of four aspects. First, is the concept of the rule of law. The second, is the development of the ideals. The third, is how the reasons and rationales of the rule of law will be received by the Chinese people. The last aspect is how the tradition of Chinese culture impacts upon the conception and consideration of the rule of law in China.
A. The concept of the rule of law
The concept of the rule of law has been discussed in China since the beginning of the last century.[1] We can draw out some of the theoretical conclusions of those discussions, although there are still some questions left open. [2] Chinese scholars consider there to be three parts to the rule of law when relating it to China. Firstly, “the rule of law ” is contrasted with and is distinguished from the “rule of man” under which a few people are above the law and able to disregard the law. “The rule of law ” refers to the ideal of the supremacy of the law [3] and the crucial feature of it is that “ the people demand that the government and its officials abide by law. The foundation of the rule of law is that officials are bound by the law and that the rule of the people prevails over despotism.”[4] Secondly, “the rule of law ” refers to a theory and a way of governing state affairs or resolving disputes by law, which include both substantive and procedural law as well as legal formalities.[5] Thirdly, the rule of law consists of a body of inherited values which include certain fundamental human rights, social justice, equality and so on[6]. There is a strong connection between human rights, democracy and the rule of law. Some scholars point out that “the citizen’s rights are the legalization of human rights in a state; it is fundamental issue of democratic construction and a crucial function of the modern rule of law. ”[7]
B. The development of the ideal
Prof. Weiler at Harvard University said: “ In the history of all polities there are memorable ‘constitutional moments’ associated in the collective mind with important changes in the constitutional order… The constitution of a polity may be thought of in less formal ways as well—as, say, an expression of the basic tenets of a polity’s political and civic culture. In this case ‘constitutional moments’ may be linked in the mind to non-legal yet symbolic historical events and the constitutional change they reflect may be indirect and informal—the beginning or end of a deeper process of mutation in public ethos or societal self-understanding.”[8] One such ‘constitutional moment’ regarding the rule of law in China, was the Third Plenary Session of the Eleventh Central Committee of CCP at the end of 1978, after the Chinese people had woken up from the nightmare of the Cultural Revolution. As a result of the conference, a significant resolution was passed. Although the specific words ‘rule of law’ did not appear in the resolution, this was such a landmark, as a decision was made to develop a socialist democracy and to construct a legal system, implying certain ideals of the rule of law. Since then, the ideal and the concept of the rule of law became clear gradually.
Between the late 1970s and the beginning of 1980s, there was widespread debate regarding the rule of law and the rule of man in China in which many legal scholars participated. The majority of the scholars made a clear distinction between the ideals of the rule of law and the rule of man and the significance of the rule of law to the country. [9] In 1982, the Constitution was amended to provide that “the state upholds the uniformity and dignity of the socialist legal system. -----No organization or individual is privileged to be beyond the Constitution or the law. ” Although we could agree that one Chinese scholar’s observation that the Constitution thereby embodied the idea of “ the rule of law”,[10] yet there was a necessity to articulate the concept of the rule of law expressly. During 1980s and 1990s many scholars had published a lot of articles and books advocating the ideal and the concept of rule of law. One important issue that they argued for was the difference between Chinese words 法治 ( Fazhi) and 法制(Fazhi). 法means law; 治means rule; 制means institution, system and check. 法治 refers to the rule of law and 法制refers to the legal system according to the textual meaning of the word and the common usage in contemporary Chinese society. Some scholars thought that both 法制and 法治 were same because their political foundation were same and both of them meant ruling a country by law. So, it would not good to replace “legal system” by “the rule of law”. [11] However, many scholars thought that 法制 meant laws and institutions and it did not have the meanings that 法治had. They said that the two concepts belonged to two different categories. 法治 meant a principle that was opposite to the ideal of the rule of man and required the effectively checking and reasonably exploiting public power. It would be very important to prescribe the rule of law in the political and legal system of the country.[12]
