Introduction
Traditionally, the term "rule of law" has been defined as a system of governance that affirms the supremacy of the law, maintains a high degree of predictability, and ensures that rules are applied evenly. As a one-party state that stifles dissent and encourages authoritarianism, China has failed to meet such a standard. Yet, in practice, even the most progressive of nations have been unable to fully satisfy the traditional requirements of a rule of law system (one need only look to the detention of foreign citizens at Guantanamo Bay or the persistent use of the death penalty to identify just two of many controversial examples in the United States). Given this reality, it would seem as though the true challenge resides in crafting a more helpful definition of the rule of law. In its 2008 white paper, the State Council offers the following interpretation: "[t]he rule of law in a country is determined by and conforms to its national conditions and social system". Indeed, using this new construction, it is certainly feasible for China to develop a kind of "medium-thick" rule of law (one that aspires to embrace individual rights but only to the extent practicable). That said, such an aspiration cannot be achieved easily - China must be willing to make some adjustments to their current regime. While large-scale and immediate change may not be realistic, a gradual approach informed by China's history that focuses on discrete and incremental improvements will, in the end, yield the most desirous results for the citizens and the state.
History
In order to make practical recommendations for China's future, it is imperative that one study the past. During the Confucian era of Chinese antiquity, law was viewed as a disruptive force, a tool that stood in tension with the Confucian value of cultural harmony. Instead, Confucius taught that rulers should lead by virtuous example and that the "rectification of names" (knowing one's place in the greater web of familial relationships) was essential to maintaining order. However, Laozi began to question the veracity of Confucian doctrine, proclaiming the benefits of rule by purposive inaction (wu wei) and de-emphasizing personal ties. The legalists of the Qin dynasty incorporated these Daoist notions into their ideology, but unlike their predecessors, entertained the idea that law is critical to a functioning society. It is in this era that broad principles of uniform standards, administration, and statecraft, were constructed and affirmed. Unfortunately, the legalists - with their emphasis on strong centralized rule and severe punishments - perpetuated a system more in line with "rule by law", where law merely serves an instrumental function as a means for the government to maintain social control and empower itself.
Imperial China witnessed a further weakening of the rule of law. The Great Qing Code reintroduced Confucian ideas (Article 2 on the Ten Great Wrongs perhaps illustrates this most vividly). This marked another step backwards for the rule of law though, as punishments were largely associated with one's individual status. This era was marked by a resurgent interest in mediation, an alternative method of dispute resolution that originated in the ancient Chinese past. Mediation was quite popular because it emphasized privacy and avoided the hassles of procuring the expensive services of well-educated legal professionals. Still, this process was not fully impartial (as disputes were presided over by village elders or merchants who may have had some interest in a particular result), and it was difficult to enforce these informal judgments beyond the confines of the local community. China's encounter with the West during the eighteenth and nineteenth centuries also challenged rule of law. Although the Chinese won a minor battle during the Lady Hughes affair, the policies of extraterritoriality imposed in the unfair treaties of Nanking and Wanghia revoked from the Chinese any sense of legal autonomy. The erosion of the tributary and canton systems perhaps reflects a movement away from the uneven application of laws, but left China without much of a framework from which it could design a institutional system based on the rule of law.
The first half of the twentieth century presents a notable (albeit slight) shift in intellectual discourse towards the development of a pragmatic rule of law. In The Three People's Principles, Sun-Yat Sen supported a rule of law inspired by fundamental Chinese characteristics that contained elements of selective Western concepts. Popular governance was instilled in the Four Powers of the People (i.e. suffrage, recall, initiative, and referendum), and relics of the ancient Chinese past (i.e. the censorate and the civil service system) were added to the existing administrative framework. The notion of modifying Western institutions to fit the sociocultural landscape of China was echoed in writings by legal scholars such as Roscoe Pound and John Wu.
However, these ideas stood at odds with Marxist-Leninist ideology, which asserted that the party serves as the vanguard of popular opinion and that rule of law has no place because law merely functions to further socialist ends. Movements like the Hundred Flowers Campaign - though advertising democracy and free expression - was actually used to out and punish counter-revolutionaries. Moreover, the Cultural Revolution largely undid any of the intellectual gains made during the first half of the twentieth century. The CCP launched an all-out campaign to dismantle the legal order, closing courts and law schools and replacing local governments with "revolutionary committees". The Little Red Book effectively eliminated the necessity of law - in essence, "Mao Zedong Thought" became the new guiding legal and moral principle.
With the emergence of Deng Xiaoping, an emphasis on growing the economy and rule of law (both integral elements of his "Two Hands" policy) returned. Although a number of views regarding law reform exist - ranging from Peng Zhen's party-guided notions to Wei Jingsheng's adherence to the primacy of law - most modern intellectuals believe that rule of law must be present for China to advance to its next stage of development. There remains just one question, then: how should China alter its existing system to reflect a veritable commitment to rule of law?
Constitutionalism and State Institutions
There is perhaps no better way to begin evaluating the rule of law in modern China than to assess the 1982 Constitution. The Constitution is a document that inscribes not only the rights of Chinese citizens but their duties as well. The spirit of some Confucian ideals are retained in the form of provisions on marriage and women, but the document moves away from status distinctions towards rhetoric of equality and empowerment. However, one should note that it is a static, socialist constitution that is not actionable and, in line with traditional Marxist thought, promotes the view that law serves to support and reinforce the underlying economic institutions. Although the State Council's white paper references the Constitution on numerous occasions, most of its language is largely aspirational and, therefore, does little in promoting an actual rule of law. In order to further develop the rule of law, the Constitution should be given the force of law (reaffirming the Qi Yuling case). Constitutional amendments (the most recent of which recognize human rights and private property rights) serve a functional end and should be added by the NPC in response to contemporary societal issues. Nevertheless, Chinese characteristics would be able to be retained.
Several problems arise from the complex system of governance known as the hierarchy of legal norms, but possible solutions can be identified. First, because courts can only review specific applications of laws, their ability to be fully independent and review the constitutionality of other organs of government is hindered. Second, because provincial and lower level governments have equal authority and because agencies report simultaneously to the national ministry under the State Council and to their local People's Government, it is difficult to have internally consistent laws. The NPC and Standing Committee should perhaps give more guidance with regard to overlapping provisions or discretely define the bounds of authority and reporting for lower level governments and agencies. Third, because the NPC passes basic laws on broad areas such as state sovereignty and political rights, sometimes there is confusion about the particulars of these laws. Although the Standing Committee does pass more specific laws, it should aim to clarify those points that have been especially problematic (perhaps by receiving popular notification via the petitioning system).
There are additional problems with the ALL. Admittedly, the ALL does enable private parties to launch private suits against administrative officials on the grounds of infringement of their rights. However, because these offenses are deemed to be "personal", citizens are barred from suing the party (instead, they must assert their claim against a specific individual, usually a lower-level official). This allows higher-ups to evade punishment. In addition, citizens are disallowed from suing on anything that relates to state secrets or foreign affairs. If the ALL was expanded to allow for suits to be brought against the party (or at least some higher level officials) and if actions concerning state secrets and foreign affairs were authorized (even if only a particular subset of them), this would further advance the rule of law while still serving the goals of the CCP.
Judges and Courts
Although China heavily relies on the civil law system, such a system does not prohibit the development of a rule of law. Judges in China are much more like career bureaucrats, which may in fact provide a higher degree of neutrality than in nations like the United States, where judges must either jockey for votes or be appointed by agenda-motivated politicians who value an attorney's long record of representing individuals and companies (which could create some conflicts of interest). China has been criticized for its lack of judicial independence. While the party does wield much influence over the judiciary, it would be a fallacy to forget that the Chinese view on independence rests not on the individual but on the greater whole (as is the case with having bureaucratic judges). The Confucian idea of systemic unity and legal uniformity may trump the necessity for judicial independence (especially in light of a civil law context where precedent is not given as much deference). Moreover, there already exists a system of what could be termed internal judicial review known as the Adjudication Committee, where more senior judges take domain over more difficult or politically sensitive issues. It is true that juries are less common (which seems to strike at the heart of democratic civic participation); however, the uniquely Chinese practice of having people's assessors allows citizens to still engage meaningfully in the legal system. Rule of law, then, can exist in a society of civil law (as long as the nuances of Chinese legal order are recognized and encouraged).
The Legal Profession
A robust and empowered legal profession is also critical to the development of a rule of law. Although the Chinese bar has certainly grown over the past thirty years since the close of the Cultural Revolution, many problems still persist. Because the state is a largely bureaucratic with great administrative power over the legal profession, attorneys play a rather minor role in pushing forward progressive policies. Moreover, widespread corruption directly undermines the very principles that the rule of law is designed to protect. However, particularized improvements can be made to combat some of these problems. The license renewal process could be extended beyond a year to allow attorneys to take on politically controversial cases with at least some semblance of freedom from reprisal. In addition, strengthening the "letters and visits" by being more receptive to mass petitions and increasing official responsiveness would not only give peasants in the countryside more political will, but it would allow the government to address the concerns of its citizens in a manner and through channels that are congruous with the government's desire of order.
Rice-roots legal workers should also be preserved, as they provide necessary legal services to residents in the Chinese countryside who often lack access to justice. (This would perhaps ease the legal troubles of citizens such as the fictional Qiu Ju.) Of course, some have complained that the lack of professional education makes these workers less useful; however, these same scholars typically ignore the fact that the most highly trained lawyers generally do not wish to work in the countryside. The Chinese government could still embrace the idea of a "unitary state", but would just need to acknowledge Hu Angang's idea of China's Four Worlds - namely, that different areas of China have differing needs. A paraprofessional legal class, then, would be able to cater to the particular needs of oft-ignored Chinese citizens while, at the same time, strengthening the "medium thick" rule of law.
Criminal Justice
The criminal justice system, perhaps more than any other area of Chinese law and policy, is in dire need of reform. The system of administrative punishments known as re-education through labor wholly conflicts with a legitimate rule of law, and the party discipline process (shanggui) is equally problematic. Articles 9 and 10 of the Law on Administrative Penalties hold that all restraint on liberty must be prescribed by law, and the 2000 Law on Legislation bars the State Council from making any laws related to the deprivation of political and personal rights. Admittedly, efforts for reform have been offered: in 2005, the Standing Committee proposed to limit the period of incarceration for re-education through labor to eighteen months and provide judicial remedies (however, this idea has gained little support). Yet, Liu Renwen's suggestion to transform re-education through labor into a disciplinary sanction process for maintaining public security administered by low and medium-level people's courts seems to be a practical and effective way to reform the system.
China's laws on state secrets should also be revised. The cases of Yang Jianli and Xue Feng highlight the degree of unfairness that such a policy - which can be applied even after being charged with another crime - can yield. The NPC could pass legislation strictly defining the boundaries of state secrets, and declassified information could be made publicly available after a period of time to allow for greater transparency.
Environment
Although it has not yet met its full potential, China has made some progress in the area of environmental rights. As detailed in Rachel Stern's field research study, the Environmental Protection Law and revised 2009 Tort Liability Law have made polluters liable for damages even when they are following government standards, and a number of recent laws - in addition to a ruling by the SPC - affirm that the burden of proof is on defendants to show that pollution did not cause losses. In addition, China has acceded or joined a number of international conventions (such as the UN Framework Convention on Climate Change and the Convention on Biological Diversity). The passage of an Agent 21 policy eventually culminated in the creation of the State Environmental Protection Administration in 1998, a ministerial body that performs high-profile environmental campaigns. Of course, the general populace is unaware of the ways in which one can make environmental claims actionable, lawyers are loathe to take these cases, and judges often just refuse to hear these cases. To strengthen rule of law, citizen education campaigns could be implemented, attorneys could be paid more handsomely if they bring class action instead of individual action suits, and judges could be required to write the reasons for refusing a case. Jiang Ping's suggestion to give provinces and local governments more authority for environmental regulation would further assist in cementing a rule of law that recognizes environmental issues.
Economy
Much of the last thirty years has been shaped by China's rise as a global economic power. China's accession to the WTO marks a major change in its policy on trade. However, the market access and Xinhua cases illustrate China's reluctance to fully comply with the key tenets of non-discrimination. Rule of law would be supported if the WTO recognized the particular challenges of China's rapidly changing economy by granting it greater leeway in some of its policies but holding them more accountable for transparency violations (which undermines the fundamental trust needed for the WTO system to function). The 2007 Property grants private and public property the same degree of legal protection, however the benefits of this legislation has been undermined by Land Administrative Law (allowing the government to take land for the "public interest") and the Law on the Contracting of Rural Land (which treats rural land differently and less fairly than urban land). The NPC should clearly define what it means by "public interest", and reasonable compensation for farming land should be enforced and rural landowners should be given greater extensions on their leases. This would further fortify rule of law by upholding procedural fairness.