Let One Hundred Flowers Bloom, One Hundred Schools Contend: Debating Rule of Law in China

Abstract

Historically, the modern conception of rule of law is integrally related to the rise of liberal democracy in the West. Indeed, for many, "the rule of law" means a liberal democratic version of rule of law. There is, however, little support for liberal democracy, and hence a liberal democratic rule of law, among state leaders, legal scholars, intellectuals or the general public in China. Accordingly, if we are to understand the likely path of development of China's system, and the reasons for differences in its institutions, rules, practices and outcomes in particular cases, we need to rethink rule of law. We need to theorize rule of law in ways that do not assume a Western liberal democratic framework, and explore alternative conceptions of rule of law that are consistent with China's own circumstances. To that end, I describe four competing thick conceptions of rule of law: Statist Socialism, Neo-Authoritarian, Communitarian and Liberal Democratic. In addition, I contrast all four variants of rule of law with rule by law, and suggest that China is in transition from rule by law to some version of rule of law, though probably not a Liberal Democratic one. I then address a number of thorny theoretical issues that apply to rule of law theories generally and more specifically to the applicability of rule of law to China. For instance, can the minimal conditions for rule of law be sufficiently specified to be useful? Should China's legal system at this point be described as rule by law, as in transition to rule of law or as an imperfect rule of law? How do we know that the goal of legal reforms in China is rule of law as opposed to a more efficient rule by law or some third alternative? Given the many different interpretations of rule of law, should we just stop referring to rule of law altogether, or at least reserve rule of law for Liberal Democratic rule of law states? Finally, turning from theory to practice, are non-Liberal Democratic rule of law systems sustainable?