Is the Rule of Law Coming to China? (Page 3 of 5)

A parallel example is illustrative here. Since the 18th Party Congress, many observers are excited that the new leaders belong to the generation that spent considerable time working and living in the countryside as youths. Compared with the previous generation, this cohort is ostensibly more acquainted with rural life and thus more attentive to the interests and welfare of Chinese peasants. But as Xu Youyu has rightly pointed out, this may not hold true. After all, Chairman Mao was himself from a peasant family and used to help his father in the fields, yet in the 1950s he seemed to have no problem in believing the inexplicably high crop yields claimed in the disastrous Great Leap Forward movement. When the entire system is through the looking glass, it is hard for even the paramount leader to see reality. By that token, as long as China’s institutional arrangements are structured in a way inimical to the rule of law, it leaders may not be helped by their legal training.

This suggests that the future of the rule of law in China, or indeed in any country, does not rest entirely in the hands of its political leaders. Institutional change is also needed. Here, though, we must be equally careful not to go to the opposite extreme and claim the omnipotence of the system, overstressing the effectiveness and impact of structural reform while unduly downplaying the role of human agency, as if reforms will initiate, sustain and perfect themselves with little human endeavor. In this light, the hope for an era under the rule of lawyers should not be completely discarded, just kept at a healthy, balanced level.

So, while it is difficult to say exactly how these lawyer-leaders will perform at the dawn of the new leadership, and with only limited information about their past legal training and experience, we can still at least begin to think about what might reasonably be expected of them. We can start with three points.

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Human Limitations

First, as law intrinsically deals with an imperfect world, we legitimately expect legally trained leaders to be keenly aware of inevitable human limitations, especially their own. This is probably the most significant and fundamental realization a legal education can bestow. Not all Chinese leaders might have read or agreed with The Federalist Papers, in which James Madison states that, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

China’s anti-corruption efforts are a fine example. Senior leaders repeatedly emphasize the urgency of the corruption problem, with Xi Jinping famously promising just months ago to keep power within the “cage of regulations.” But China has had centuries of experience in managing and governing officials, and senior leaders have a long tradition of using rules and regulations to control the rank and file. The rules are made harsher, new levels of supervision are added, and disciplinary bodies are given new powers. But this can never be the ultimate solution, as it presupposes the infallibility of the senior, and particularly the supreme.

In reality, higher-level authorities are not always capable of identifying or eliminating corruption, nor are they by nature incorruptible themselves. “Cages” created by those at the top will never be effective on their own. Rather, for the law of anti-corruption to work, senior and supreme leaders must acknowledge their own limitations and surrender themselves to the law.

Unfortunately, this has long proven difficult in China, for both cultural and institutional reasons. Early this year, Xi vowed to fight both “tigers” and “flies” in a new round of anti-corruption campaign, but to many Chinese, whether or not the tigers are caught still depends on extra-legal factors such as power struggles among the elites. It is no wonder that more than one year after Bo Xilai’s downfall, many continue to believe that he is an innocent victim of political infighting rather than a criminal suspect pending legal judgment.

Meanwhile, there is the institutional difficulty created by the lack of downward accountability of cadres and officials to the people. With the petitioner system smothered by the pressure to maintain stability and the traditional press nowhere near being a reliable Fourth Estate, online exposure and petition is now prevalent and widely welcomed as a weapon against corruption. Unfortunately, it is a weapon that misfires and backfires. Misfires because it quickly forms a court of public opinion before the facts are verified, and is often used with ulterior motives such as libel and smear campaigns. Backfires not only because it is in no way guaranteed to be effective all the time but, more crucially, because it tends to detract attention from what is urgently needed: reliable institutions that can hold corruptible officials accountable.

Conflicts of Values

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