Is the Rule of Law Coming to China? (Page 4 of 5)

Second, the law constantly involves value judgments. But what matters more to China’s top leaders are not value judgments within the law, but between the principles of law and other competing values. Legal principles such as due process have historically been outweighed by considerations of efficiency. The overhaul of the criminal justice system has long been hindered by the perceived need to maintain social stability.

In a fast-changing and complex society like China, the leadership must find a nuanced balance among all these conflicting but entangled values. It may not be necessary to arrive at a position where legal rights always triumph. Nonetheless, a society in which stability trumps everything else is undoubtedly neither desirable nor sustainable. Perhaps more challenging is correcting the constitutional relationship between the Party and law, or balancing the value of law with the value of the Party’s leadership. China’s Constitution stipulates that all organizations, presumably including the Communist Party should abide by the Constitution and law. But the same constitution also provides for the unquestionable leadership role of the Party, which has already taken actions outside the law from time to time as it has seen fit.

It remains unrealistic to anticipate that the current crop of national leaders, however they differ from previous generations in the seriousness with which they take the law, will soon decide to subordinate the Communist Party institutionally under the law by, for instance, allowing judicial or constitutional reviews of the Party, especially when it has for so long prided itself on its successful leadership without stringently following pre-determined rules. This flexibility is also viewed favorably in the eyes of many proponents of the Beijing Consensus or China Model, who criticize the West for being too legalistic sometimes. But we should not conclude that the existing relationship is healthy precisely because it remains to be defined more clearly. Flexibility may prove beneficial when weathering a storm but it is counterproductive and dangerous when stable expectations are needed by the market and society. Last month, the Party for the first time issued two regulations formalizing the procedures for making Party rules at the central and local levels. Whilst this is progress towards binding the Party in rule-making activities, the precise relationship between Party regulations and state laws and regulations has yet to be spelled out.

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So these two distinct but intertwined normative systems must continue to coexist, with no clear rules to determine which takes precedence should they overlap and clash. Given the perceived flexibility advantage Party rules have over laws and the practical difficulty in pinning down their exact relationship, this ambivalence is likely to continue. But we probably can count on the legally trained leaders, particularly Premier Li Keqiang, to recognize the value of an independent legal system and advocate to remove the hands of the Party from legal affairs, especially court proceedings, just as he promises to curb government interference with the market. Even if the Party retains a substantial role in formulating the law through the People’s Congress, which makes it less comparable in the British context to the Queen than to Parliament, it has to make itself more inclusive and participatory to better represent the people. Which leads us nicely to the next point.

Power of Persuasion

Third and finally, lawyers across the world earn their reputation by their power of persuasion. Politics in China, including Party politics, is widely perceived to be lacking the element of persuasion, which requires the government to convince and mobilize the citizenry with reason and argument. Just as the skill of persuasion is indispensable to lawyers, it is vital for governing a country in a legal environment. For China, this is much more than a change in the way the Party and government work; it goes to the very soul of Chinese politics and public life. To persuade, the authority must at minimum publicize its policies and decisions. It must also deliberate beforehand so that it has some reason to offer for any particular policy or decision. Sometimes it must engage the public in policy deliberation as this may help increase the likelihood of successful persuasion.

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