The aim of the essay is to analyse and evaluate the development of rule of law in the Chinese context. This essay is based on four sections. The first section differentiates features of Socialist rule of law with Chinese characteristics in comparison with Western rule of law system. The second section analyses the driving forces why China is going to implement this kind of rule of law with Chinese characteristics. The third section of essay appraises the limitation for Chinese rule of law in relation to western countries. The fourth section assesses possible repercussions of authoritarian rule
Rule of law enclosed principles to which all institutions and people are subject to as well as held accountable to the law. These rules and regulation are fairly applied and enforced and thus, the principle of government by law. Moreover, it is a western concept and rule of law highlights that society solely regulated by the law. The law enclosed the set of general rules for society that apply to all citizens and covers almost all areas of life (Chan, Rosen and Unger, 2015).
These rules and regulation are enforced through the court of law in accordance with legal procedures as well as free from any interference from behaviour rules and sources such as politics, traditions, religions and administrative praxis. The origin of rule of law framework is based on capitalist and market-based economic system and thus, the notion is associated with democratic political regime of the western world (Silkenat, Hickey and Barenboim, 2016).
Cho (2016) highlighted that in October 2014, Chinese Communist Party (CCP) at 4th Plenum of 18th Party Congress official endorsed the rule of law. Nevertheless, Zou (2016) stated that in 1997, Jiang Zemin first coined and already used term ‘yifa zhiguo’ for work report at the 15th party congress. This enclosed fundamental governing strategy for CCP as ‘socialist rule of law’ which clearly distinguish it from the capitalist rule of law.
Research on law and China highlight that Chinese system has remained as socialist legal system for a long time which has downplayed the role of regulations and statute because capitalist rule of law is not useful for socialism. The pre-socialist legal tradition and Chinese culture there is little knowledge of western jurisprudence and law.
The legal tradition of China based on peculiarities of socialism approach and Confucianism along with administrative authority has predetermined abstract rules (Turner, 2015).
In China, the role of law is different when compared with a western society based on factors which are its unique history, tradition, political culture and socialist experience. CCP does not embrace the capitalist rule of law but rather taking socialist perspective (Yee, Tang and Lo, 2016).
Features of Socialist rule of law and differences with western system
Nathan (2015) stated that China has different perspective on rule of law and article of 5 of socialist rule of law states that People republic of China (PRC) is governed by socialist country law which upholds dignity and uniformity as well as no administrative law or regulation contravene the constitution and all public organisations, armed forces and political parties abide by the constitution.
China is a socialist country under CCP (civil dictatorship) which is led by an alliance of peasants, working class and workers. The basic economic system in China involves public ownership which allows determining the role of legal institution bounded to socialist system.
Roberts (2015) explained that in the West, the rule of law is deep-rooted in legal system and provides foundation and assumptions how relationships should be conducted. It is part of the western commercial culture based on notion that power and influence in the relationship should be based upon and influenced by law.
In western context, the law is seen as independent of influence as well as power of society member including government and those who have the ability to control the actions of government. In contrast, Chinese Communist Party (CCP) is basis of all law, power and influence and the law has been tool of the CCP (Feigon and Duxiu, 2014).
Fukuyama (2016) appraised that the idea of separation of powers in the West is for the purpose of accountability and control. For example, Australian government is based on federalism constitution and power rest on constitution which was created by states and banded in the form of federation.
In China, the structuring of CCP is opposite of Western structure and it is based on unity of powers. The government, CCP and people will are one and thus, the purpose is unified as whole rather a mere collection of independent parties. In Anglo jurisdiction such as the UK, separation of power is not limited to bodies of government but demand clear distinction between citizens and government.
Zhai (2015) added that the purpose of distinction is to limit power of government and it acts with concern of citizens. In China, the role and value of constitution are lesser because it is perceived as a political document rather strictly a legal one. For example, socialist courts need to conscious in terms of the social impact of their decisions rather an enforcing system of applicable legal rules particularly dealing with highly visible and sensitive cases (Lin, 2013).
Driving forces behind rule of law development with Chinese characteristics
Connery (2015) described that the hegemony of economic power in China has influenced the CCP approach in terms of power and control for social and political development. CCP has had changed its view of capitalism and focus on the role of the economy in society development. The adoption of open door policy by Xiaoping is associated with reconstruction of the legal system in China. The socialism in china is marked through three important characteristics. The first is political front as China has a system of political consultation and multiparty cooperation (regional ethnic autonomy) (Cho, 2016).
The second is economic front through the market-based economic system and thus dominance of public ownership. The third is cultural front because China manages to hold its socialist cultural value and social trends and expanding common goals (Barro, 2016).
Moreover, Jiang Zemin supports the expansion of principles and stated general principle of state function in a sense that democracy development in China must combine with legal system improvement to manage state affairs, social and economic affairs under the CCP in accordance with law stipulation and constitution so that all work of state carried under law.
The goal of civil process is to strengthening of socialist legality to educate citizens, to respect of principle of socialist coexistence and to prevention of violations of the law (Peck and Zhang, 2013).
Cho (2016) elaborated that the significant milestone changed in CCP constitution at 16th party congress which acknowledged intellectuals, workers, the member of arm forces and advancement. The regime focuses on institution building and law-making for legal consciousness through codification of laws and regulations so that people enjoy more freedom and better quality of life. Countries built legal system on cultural tradition, history, legal system and actual social conditions to communicate and exchange learning. The socialist rule of law with Chinese characteristics involves China culture and tradition history along with civilisation of system reforms.
Chow (2015) added that China legal system includes both openness and inclusiveness to reflect upon its culture characteristics. The social rule of law with Chinese characteristic combines existing political system and Confucian dominant tradition. The legal reforms improve social control as well as strengthen its legitimacy to deal with protectionism and freedom of speech. For the western doing business in China, the stakeholder insists adopting a western approach of the legal system and practical reality of doing business (Chan, Rosen and Unger, 2015).
Limitation of Rule of law in China and comparison with western system
According to Zhao (2014), in the West, the rule of law is institutionalized for decades and had three dimensions are; (i) an electoral dimension, (ii) participatory process (free speech), and iii) institutions to ensure that ensure these processes are carried out. Therefore, democracy is dependent on rule of law and not rule of law dependent on democracy.
On the other hand, Lampton (2014) appraised that Rule of law is challenged in China and tradition prescribed it as punitive rules and punishments which are not suitable for social organization. Rule of law has no history in China and had no experience with rulers using law in some aspect of their rule. According to Cao’s, rule of law in China (fazhi) is consist of two Chinese characteristics which are fa (law) and zhi (to govern or rule). Fa denotes the just, fair and straight whereas zhi elaborates measurement, standard and model. CCP actively promotes unity to hold hegemony of power and oppose calls for separation of power.
In comparison with soviet style dictatorship, Chinese government model is dictatorship of national bourgeois, workers, petty bourgeois and peasants. The Chinese established under organic law and function under Central People Government Council which has legislative, executive and judicial powers (Fewsmith, 2013; Bader, 2015).
Liebman (2014) analyzed that there are two main challenges defining the rule of law in China. The first challenge is that Western commentators classified China as a socialist state and qualify for rule of law are limited to liberal democracies. The substantive element of rule of law includes governmental arrangement, economic arrangement and the notion of human rights. The rise of rule of law in the liberal is tendency to form social organization.
The second challenge to China is based on lack of separation of power because Supreme People Court directed by National people congress and standing committee as well as local courts are answerable to local committee which compromise the independence due to political influence (Liebman, 2014).
Fewsmith (2013) highlighted that the constitution for the legal system of country is determined through political and legislative system. For example, Australian constitution attempts to limit the power of political party which is in government through separation of power and independent of party control of government. However, China has unified government system and united multi-ethnic country due to economic, historical and social development (Turner, 2015).
In the context of common law in Anglo jurisdiction, judiciary is an independent body and free from interference and influence with respect to their judgement. The jurisdictions of judges are embodiment in legal tradition within fairness and law as well as sense justice. The government executive branches are separated from the party in power and thus have no power to legislation and its actions are subject to judicial review (Nelson, 2015).
Chinese relationships with friends and family have a stronger bond and in particular, special relationship (Guanxi) is part of commercial relations in China. According to Glenn, the social relations of guanxi slide towards cronyism, unjustifiable advantage, on-going cultivation of reciprocal as well as exclusion of considerations for outside world. The notion of loyalty, relationship and duty is embedded in China culture and system compares to the West.
Chinese people feel that conflict is deplorable and section interest impact public welfare. The personal obligation is to consider superior and inferior rather as impartial and impersonal providing the ethical basis of public affairs through social relationship. Guanxi is unlikely to stop through court system and judge might provide judgement in favour of relative of friend (Jia, 2016).
Dworkin (2013) described that in the context of international law, political decisions and inactions are not based on political convenience and legal regulations function in a political international environment which provide indication and principles what needs to done, unlike Chinese legal environment. The international law environment flexibility (not at enforcement level) but the level of law production which provides the general rules for international law which can be derogated the subject of rules, custom or agreement.
The general Chinese laws and regulations which are issued at central government level are not applicable at the local level because of lack of regulation at the local level. For example, the EU directive embedded legal texts which are meant to implement at a national level in accordance with principles to harmonise the member state legislation (Muller, 2015).
The Chinese general law for long time shared some of these features and originated at central authority with view of complex system building with devolution at local levels of final authority to regulate relevant areas for harmoniously rather uniformity. The general piece of Chinese legislation devised at central level act as directive (function and nature) for lower level law-making (Fukuyama, 2016).
In the Western liberal societies hold particular privilege and thinking which resulted in the rejection of the traditional authority of monarchies and a new form of social order. For example, In the UK, powers are held by the citizens and thus, government focus on economic development which benefit not the just monarch but benefit everyone in the society. The legal rules in China are constituted of the vast system which involves the complex and intricate interaction of different sources at various territorial level and hierarchies (Higley, 2016).
The article 4 of the law on People Procuratorates of 1979 which specify the responsibility of socialist courts and it completely Procuratorates absent duty list compared to Western counterparts. For example, In Australia, contract is legally binding document to which individual and company has legal recourse in case things go wrong. It means, if one party break promise of bargain, the other side can sue and drag them in court.
Therefore, people expect transparent legal system with speed which gives business contract recognition, formal binding, rights and private recognition as well as an independent judgment on the case (Connery, 2015).
Repercussions for authoritarian rule for China
According to Tansey (2016) the non-democratic regime which is also known as the authoritarian regime does not use competitive approach to filling government and administrative office. The autocracies are classified into board categories which are military regimes, monarchies and civil dictatorship. Monarchic involves legitimate success within ruling family and family is a charge of political decisions.
In the context of the military regimes consultative council takes key decisions and civil dictatorship enclosed autocrats rule without relying on ruling family or military support base. Civil dictatorship is based on single-party regime, limited multi-party regime; leaders are chosen from ruling party as well as the highly compromised electoral process (Feigon and Duxiu, 2014).
Neilson, Pritchard and Yeung (2014) added that in the context of international political economy, authoritarian regime is the major challenge against contemporary economic trends. Autocracies maintain protectionist policies and maintain higher barriers to international trade, less reliant upon foreign direct investment and extensive capital control.
China is an important adversary for liberal democracy where ruling elite who championed its model for authoritarian modernization through combining proactive citizen engagement, market economy and ruling party monopoly.
Lorentzen, Landry and Yasuda (2014) stated that Chinese article 6 of the civil procedure stipulates the purpose of civil process is that prompt assessment is guaranteed the defense social and state structure of socialist system of socialist property and socialist system of economy, the protection of labour, political, housing and patrimonial rights of citizens protected by law, state entities protections and social rights as well as legitimate interest.
The goal of the civil process is to the strengthening of socialist legality to educate citizens, to the respect of the principle of socialist coexistence and to the prevention of violations of the law. Xu (2015) stated that the authoritarianism (civil dictatorship) is dooming the economy of China. There is lot of criticism for export-led growth strategy which is unbalanced, unstable and unsustainable. There is strict control of Chinese government through strong censorship and thus, it requires maintaining to economic growth for long-term growth (Shambaugh, 2016).
The fundamental problem for core economy of China is that it requires major restructuring but its one-party system is holding it back as it unwilling to make changes. The nature of China authoritarian model is its power for governing elite which heavy invested in the status quo (Nathan, 2015).
Wallace (2016) highlighted that the government of China has premised political stability in order to deliver economic growth. The recent slow in China economic progress requires immediate actions from leadership but if Beijing fails to implicit promise, then worst might come. In a democracy, if people failed then electoral allows changing the regime. However, in the case of the authoritarian regime such as China, the discontent can be more dangerous.
Businesses in China continue with the government; powers and party politics which are the network of rampant protectionism and all kind of social relations. In China, conceptualize of contract promises are managed in less formal manner compare to western. Chinese people view the contract as an expression of friendly relationship and long-term cooperation. The Chinese law focuses on criminal law but it has not well developed private and common law as well as there is level of mistrust on law among institutions (Dong, Li and Tse, 2013).
The reason for China political system might not pull is its elite ruling class. The major problem with Chinese system it looks efficient as well as monolithic but its officials and administration lack political autonomy. The Chinese economy is in the phase of transition towards consumer economy this requires rule of law. China growth has created interests and powerful industries which are owned by the business elite (Roberts, 2015).
According to Ralf (2016), the leadership of China has failed to reforms and necessary measures. On the other hand, a tendency of the Chinese government to intervene in the economy would upset the balance of investment decision and capital allocation with powerful stakeholder resist transfer of wealth to new constituencies (Fewsmith, 2015).
The rebalancing agenda for China is not merely economics but the political viability of Chinese system. For sustainable consumer-driven economy, there is a stronger need for independent and free institutions. The benefits of free markets are that it is unwilling to stand the short-term costs but prefer to retain control of banks and divert money towards elite interests and state-run industries. The purpose of socialist rule of law with Chinese characteristics is that CCP does not receptive to reforms because of weaken of party power and jeopardize the ability to control powerful constituencies (Xing and Shaw, 2013).
Shambaugh (2016) elaborated that the autocratic regime like China has history working against them such as Cold War which highlights the inability of the authoritarian regime to sustain economic growth. The loss in the economic growth could lead to loss of legitimacy which results in the collapse of the state and thus, authoritarian regime is associated with instability. The abandonment of protectionist, isolationist and socialist economies in China has resulted in economic growth in last decades. The authoritarian concern with sustainability as economic reversal could result in the collapse of the state and poor autocracies have experienced fall in GDP twice as much as poor democracies (Roberts, 2015).
The financial perks and political power of the ruling elites may face brutal repression. However, the social and economic success in Chinese way highlights the success of such regime. Moreover, the same formula has been used by ruling elite of Moscow, Cairo and Beijing. The autocratic regime does not rely on fear of repression or fear but also secure the loyalty of substantial population through increasing functioning services, wealth, public order, upward social mobility which are sources of legitimacy to compensate for the lack of civil liberties. This bargain is described as authoritarian social contract between population and ruling elite (Goodman, 2014).
The reforms for rule of law in China have uncertainty and contradictions and conflict between the socialist system, Chinese culture and rule of the party (CCP) has made little process. The reforms are becoming more complex, irreconcilable and intense in its scope. The need of reforms for the legal system is required to achieve goals and balance between state administration and socioeconomic development to preserve legitimacy and retain Chinese characteristics.
The purpose of China legal system reforms is to achieve economic growth but retain existing political system. The objective is to enhance administration efficiency but do not undermine the power of party-state power. The process of legal reforms has blurred the state ideology and weakens the part-state power. The current political environment makes it hard to recognize and categories China with socialist rule of law with Chinese characteristics when compared to rule of law in the West.
In China, the increasing quality and amount of the law is serious problem in terms of effectiveness because of de-generating a total lack of enforcement.
In the western context, the law is seen as independent of influence as well as the power of society member including government and those who have the ability to control the actions of government. The CCP interest and ideology has resulted in intensifying conflict with the process of legal development and existing legal system is a powerful tool for CCP to achieve its goals rather controlling the state.
CCP aims to maintain the balance between political legitimacy and rule of law and it has not proven difficult for sophisticated and pragmatic ruling party of the country. Although, CCP has made efforts for legal reforms through linking Confucian values and traditional legalist perspective by introducing free market rules and modernise style of state governance. The socialist rule of law with Chinese characteristics is the blend of Confucian morality, legalist rule, Leninist state structure and capital market rules.
The law and constitution defined the multilevel and unified structure of China with Chinese characteristic. These includes conditions, practices and conform to Chinese political, social and economic perspective headed by constitution, composed to multilevel legal norms including local and administration regulations.
The shift in rule of law for China requires considerable theorising the concept of rule of law in Chinese context but it means significant changes in language, innovation in thinking, law and legal institutions. Chinese Communist Party (CCP) at 4th Plenum of 18th Party Congress official endorsement of rule of law focus on the independence of the judiciary and decrease political influence on the individual decision. The notion of rule of law provides the foundation for liberal Western states which guide the legislation, strategy and operation to evaluate the actions of government.
The failure of the government to follow rule of law results in removal from power through revolt and political processes. A democratic government not under threat of rebellion but works on economic with the support of institutions to foster and protect growth. The CCP control the government institution including state council, an executive branch and government organisation to ensure party policies are carried out. The socialist value is more suitable for CCP compared to rule of law because it resolves the contradictions between rule of law, model of legitimacy and authority of the party.
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