By Stan Abrams
The rule of law is a perennial favorite discussion topic in China, and I’ve certainly spilled lots of ink on the subject in this blog over the years. The issue had a bit of a resurgence recently due to a government conference here in Beijing in October whose theme was (I’m paraphrasing): “Law Sounds Good!”
But what does “rule of law” mean? And what does it mean in China?
These questions were addressed ad nauseam in October by academics and journalists. Important issues to mull over, to be sure, but I found the whole discussion tedious and esoteric after a while. Here’s an example from The Wall Street Journal:
In the case of 法治, that phenomenon has led to two similar but distinct translations in Chinese-English dictionaries: “rule of law” and “rule by law.”
[ . . . ]
“Rule of law,” under which the power of political leaders is constrained by laws and regulations, is generally considered a subset of “rule by law,” says Victor Mair, a professor of Chinese language at the University of Pennsylvania.
“’Rule of law’ implies fairness and predictable application,” he says. “’Rule by law’ would include, for example, rule under Hitler’s Nuremberg Laws (Nürnberger Gesetze), which were neither fair nor predictably applied.”
Uh oh. Godwin’s Law tells us that quote is not going to end well. But is this distinction between “rule of law” and “rule by law” an important one? Yes, but not as much as you might think.
Let’s start off with the usual stipulations: as a policy platform for reform, the “rule of law” is very useful. It can lead to a more independent judiciary, better training for lawyers, more transparency and less local
protectionism. It also indirectly can help a country through its painful early stages of economic development.
The rule of law is an excellent academic concept. But here’s the problem, if I can let you in on a little secret: in reality, there is no such thing as rule of law, whether we are talking about China, the U.S. or any other country.
Let’s take a look westward for some anecdotal evidence of this. Look at the current U.S. Supreme Court, which recently decided to take a case for what many are calling blatantly political reasons. This has freaked out many court watchers, who apparently feel disillusioned about that whole rule of law thing. Here’s one disheartened commentator:
The usually subdued Linda Greenhouse, who covered the Supreme Court for The New York Times for years, is apoplectic about the court’s surprise decision to take up Obamacare subsidies even as the circuit courts are still grappling with the issue. Here’s a sampling:This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect.There is simply no way to describe what the court did last Friday as a neutral act. So this case is rich in almost every possible dimension. Its arrival on the Supreme Court’s docket is also profoundly depressing. In decades of court-watching, I have struggled — sometimes it has seemed against all odds — to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week, I’ve found myself struggling against the impulse to say two words: I surrender. (‘Naked Power Grab’).
My response? Amusement. Anyone who thinks the U.S. Supreme Court isn’t a political body is hopelessly naive.
That being said, the beauty of the U.S. Supreme Court (if I may say so) is that its reliance on stare decisisconstrains the political wishes of the justices while still allowing the law to be updated as necessary from time to time. In other words, the court maintains the pretense of neutrality and rule of law while its decisions are being motivated, surreptitiously to some degree, by each justices’ individual politics. As the country changes, so does the law — but slowly and carefully, with arguments that are based in part on earlier decisions.
Rule of law at the U.S. Supreme Court is sort of a fiction, but quite a well-conceived one. And this is just one example of what goes on in the West, legal institutions that have the trappings of rule of law but are pushed and pulled (to varying degrees) by political forces. You can examine enforcement and interpretation of the law at any level and find lots of examples of politics in action.
So what about all that talk of China and this distinction between “rule of law” and “rule by law”? Certainly not a waste of breath, but perhaps a bit too much of an academic distinction.
It comes down to this: should the Party or the law be supreme in China? Western commentators, including legal scholars, vehemently believe that supremacy of the law in China would be a game changer, leading to social equality, rainbows, unicorns, etc. and so on.
But supremacy of the law is a myth. It’s not real in the West, and it isn’t possible here in China. However, as long as folks in the West believe that a Platonic Rule of Law is real in their home country, they can continue to criticize China for not adopting it over here. (Yes, I capitalized “rule of law” in that previous sentence on purpose.)
This is all rather unfair, says I. However, that doesn’t mean that folks should stop pushing for legal reform.
While no country has a pure system of rule of law, there are many nations that are much closer than others. There’s a spectrum here, and a country can move up towards that ideal by adopting reforms that institute an independent judiciary, crack down on corruption, promote transparency, yada yada yada.
So just what does 法治 mean exactly? I don’t think it matters as much as you think, and it certainly isn’t worth the effort for your average China watcher layman to parse translations. True rule of law is an unattainable goal, an artificial construct. Let’s instead spend our time mulling over specific reform policies and their real-world effects.
The views and opinions expressed herein are the author's own, and do not necessarily reflect those of EconMatters.
About The Author - Stan Abrams is a Beijing-based IP/IT lawyer and law professor with an M.A. from Johns Hopkins in International Relations, a J.D. from Boston College Law School, a B.A. from Pomona College, and writes at China Hearsay. (EconMatters author archive here)
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