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Prof. Wang Jiafu with the cooperation of his colleagues addressed the rule of law in his lecture to the top leaders of CCP including Mr. Jiang Zemin on February 8, 1996. [13] In 1997, after constant work by many Chinese scholars for several years, the Report of the Fifteenth National Conference of the CCP expressly stated their policy of “ Governing the country according to law and making it a socialist rule of law state”(Yifazhiguo, jianshe shehuizhiyi fazhi(法治) guojia). [14] This was also later incorporated within China’s Constitution when it was amended in 1999.
The superficial difference between 法治and法制is only one Chinese character. However, it took 20 years to replace 法制by法治from the end of 1978 to 1999. The significance of that development is the final establishment of the rule of law as the fundamental principle of political and legal system in China, which further provided for an institutional framework through which the ideals of the rule of law and socialism with Chinese characteristics could be realized step by step. The rationales are below.
C. The reasons why the rule of law is necessary in China
The concept of the rule of law has been developed with the consideration of the reasons of why the rule of is necessary. There are the two primary reasons why the Chinese people are striving to realize the rule of law.
The first reason is to create an environment of tranquility and order in which a market economy can efficiently operate, in keeping with China’s open door policy, and an environment of stability in which the Chinese people can conduct their daily lives. The functions of laws including guidance, predictability, stability, regulation and limitation on government power, as well as transparency not only to preserve social order and tranquility, but also prevent the government from abusing their powers. The laws in a society based on the rule of law operate as a tool of constraint upon the action of government itself. A modern government should be a government under the law.
The second reason is to prevent a repetition of the tragedy of the Cultural Revolution, during which the whole country suffered chaos without democracy and laws, and to resolve some fundamental problems. Since 1949, there have been two fundamental problems that have troubled China. The first is the relationship between the authority of the leaders and the authority of the law. The second is the relationship between the ruling party and the state.[15] If the authority of a leader is substantial, and there is no rational institution and process to control this, then this authority might be capricious, arbitrary and unpredictable. The leader of the Party could use the authority of the Party system to pursue his own purposes which may contravene the peoples’ interest and will. In a country based on the rule of law, all individuals and groups recognize an obligation to comply with the law and act accordingly. So the leader’s authority is checked by legal institutions or individual rights and channeled in such a way as to conform to the peoples’ values and wills.
D. The rule of law and Chinese tradition
China is a country that has a long history without the rule of law. However, China has developed her own ways to maintain social order and stability. The current ideals of the rule of law can not be separated from Chinese cultural tradition. Some of the legacy of Chinese cultural tradition should be kept as the basis of the rule of law, but some should also be discarded. The rule of law in China can not be successful unless these issues are dealt with correctly.
1. The legacy of ancient Chinese philosophy
The legacy of ancient Chinese philosophy can provide a very good basis for the process of the rule of law in China, provided that the historical ideas are carefully selected on the basis of current needs. In today’s world, the rule of law no longer has a merely formalist meaning lacking in substantive values such as human rights, freedom, social justice etc. However, there has been no substantive rule of law in Chinese history at all.[16] Nevertheless, the process of the rule of law can not be successful unless it has some indigenous foundations for the modern substantive rule of law. Ancient Chinese philosophy could contribute significantly to constructing the foundation needed. The foundations of the spirit of humanity, freedom and social justice can be used from ancient Chinese philosophy. It is necessary that we examine some points of that philosophy, which are and will be continuously influential in the process of developing the rule of law in China.
First, both Confucius and Mencius had certain great humanistic thoughts. Confucius said that: “ A man who has faith in humanity, while seeking to be established himself, tries to enable others to be established, too; while desiring success in everything for himself, he helps others succeed in everything, too. To know how to draw exemplary strength from handy facts may be considered the best way to pursue the principles of humanity.” He also said: “do not do to others what you would not want others to do to you.” [17] Confucius sought the base of societal norms from the relationships between people. His approach was to inquire into humans’ hearts. Human beings were the center, not gods.[18] Mencius said that: “ The empire was given to him by Heaven and the people, so I say an emperor has no right to give his empire to anybody. ……People’s eyes are the eyes of Heaven; people’s ears are the ears of Heaven.”[19] Apparently, Mencius thought the wishes of the people were the foundation of political authority. His ideas were regarded as the school of ‘people-based’ (Min-Ben) philosophy. People were the crucial underpinning of the philosophy of Confucius and Mencius. Those ideas are potentially significant because theories of human rights and democracy can be developed from them.
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