A. Introduction
Although burdened, the paradigm “modernization (xiandaihua, 现代化)”Footnote 1 can still function as a basic explanatory framework for the development of Chinese socialist legality in the past forty years. In the early stages of the People’s Republic the state was underdeveloped.Footnote 2 One of the strategies adopted by the Chinese Communist Party (CCP) for developing the state and achieving China’s modernization was a systematic program of “learning from the West.”Footnote 3 This strategy played a particularly important role in the economic, scientific, technological, and legal sectors—beginning with the Reform and Opening policy in 1978.Footnote 4
Viewed historically, the western model of the state governed by the rule of law has been pivotal to the modernization of Chinese law, which effectively began from scratch after the long-term political turmoil—and the related legal nihilism—that characterized the ten years’ Cultural Revolution (1966–1976).Footnote 5 The western model of the rule of law provided the process of legal modernization in China with technical and operational references for law-making, judicial power, and the administration. The elements of the Western model are embodied in concrete institutional designs. But it also presented guiding ideas (or, more accurately, external pressure) for the pursuit and realization of some kind of Chinese version of the “rule of law” even as this concept in China departs from its original, Western ambition.Footnote 6
The CCP more-or-less completely embraced western, values-free science and technology.Footnote 7 But in the legal sector, learning from the west has always been reticent, selective, and tangled. This is due to the significant and fundamental discrepancies in the political realities in China and the West. The former is a Communist Party-state conforming to Marxist-Leninist ideology. The sum of the latter’s variants might be characterized as liberal-democratic.Footnote 8 The inherent affinity between law and politics, and the indivisibility between political values and legal ideals, led to the paradox that learning the rule of law from the West could be both constructive and destructive for the CCP. For this reason, the CCP has been scrupulously strategic about the elements of western law it adopted, and it endeavored to confine and eliminate those elements that could endanger and imperil its political and ideological primacy.Footnote 9
This delicate process took place against the backdrop of a chaotic pre-history produced by the Cultural Revolution.Footnote 10 To restore order after that period the CCP has taken an elastic and dualistic approach to modernization based on Deng Xiaoping’s utilitarian incentives for learning from the West.Footnote 11 In the political sector, the CCP has stepped back into the past, drawing on the successful experiences the Party made under Marxist-Leninist doctrine. In the economic sector, the CCP has vigorously moved toward its western counterparts, absorbing the rules and institutions that were indispensable for carrying out its internal economic reconstruction and reform. This included the embrace of rules and institutions necessary for China’s rule-based economic interaction with the West, principally in the fields of investment and trade. This strategy resulted in two different paths for legal development, one in the political sector and the other in the economic sector.Footnote 12 This article argues that the CCP’s elastic and dualistic strategy contains inherent tensions between Chinese communist political localism and the universals central to economic progressivism. This tension is the space in which legal reform and evolution has taken place, often even touching political and legal “forbidden areas.” The result has been the facilitation of some kind of limited legal modernization that can be characterized as the so-called Chinese “socialist rule of law state”.Footnote 13 That process, however, has not extended to a comprehensive adoption of or “learning” from western liberal constitutionalism. The CCP’s strategy would not tolerate the total westernization of the political and legal sectors.Footnote 14 With this clearer view of the strategy pursued by the CCP in the past forty years, this article offers an outlook for Chinese socialist legality that also accounts for changing external circumstances, including deteriorating relations between China and the USA.Footnote 15
B. Learning from the West: An Elastic and Dualistic Strategy
Notwithstanding its seventy-year history, the most relevant legal development and modernization of the People’s Republic of China (PRC) only commenced in the late 1970s with the adoption of the Reform and Opening Policy in 1978.
I. A Pre-History with Chaos and Instability
Except for a few early years,Footnote 16 the pre-history of the PRC from its founding in 1949 up to 1978 is characterized by constant political turmoil, such as the Anti-Rightist Movement (fanyou yundong, 反右运动, 1957–1958) and the Great Leap Forward (dayuejin, 大跃进,1958–1960).Footnote 17 For decades after 1949, the CCP and the whole state were gripped by the tension between revolutionary destructive inertia, on the one hand, and emergent constructive, post-revolutionary forces for order and stability, on the other hand. The revolutionary inertia generally transferred the logic and praxis of the CCP from the revolutionary phase to the state and governance. This force was hostile to any rational institutional building within the state and it impeded the growth of a new political and legal order. The relative stability experienced until the middle of the 1950s was based on the fragile balance of these two forces. The ensuing political movements were, in their essence, the direct result of the imbalance of these forces with the former—revolutionary inertia—overwhelming the latter—post-revolutionary institution building. The imbalance reached its destructive climax in the Cultural Revolution (1966–1976).Footnote 18 Prompted by the theoretical understanding of “cultures,”Footnote 19 the Cultural Revolution rapidly evolved into an over-arching class struggle within the CCP’s organs, state institutions, social fields, and organizations.Footnote 20 Guided by the “theory of continuous revolution under the dictatorship of the proletariat (wuchan jieji zhuanzheng xia jixu geming lilun, 无产阶级专政下继续革命理论)”Footnote 21 led by Mao Zedong, the recessive revolutionary force regained prominence and was used to justify the elimination of the CCP’s—mostly imaginary—bourgeoisie enemies, the so-called “capitalist roaders” (zouzipai, 走资派).Footnote 22 The class struggle within the CCP and imposed on the rest of society triggered large scale mass movements and it impeded nearly all constructive and effective economic development.Footnote 23 The fragile institutional achievements gained in the political and legal sectors in the early years after the founding of the PRC were completely wiped out.Footnote 24 State organs—including legislative, judicial, and administrative institutions—were abolished and re-organized in the form of “revolutionary committees (geming weiyuanhui, 革命委员会)”Footnote 25 at various levels. State laws were replaced by the CCP’s policies, or even the orders and instructions of the CCP’s leaders. The Constitution of 1954 was the representative achievement of the PRC’s early legal construction. Its core function had been to move China to a post-revolutionary posture in order to promote the normalization of state order. The 1954 Constitution was replaced by the “Cultural Revolution Constitution” of 1975, which legalized the ideology of class struggle, enshrined the dictatorship of the proletariat, and justified returning the state to a revolutionary posture.Footnote 26
II. The Desire for Order: Twofold Approach
As stated by Deng Xiaoping—the core leader of the CCP in the post-Mao era: “Things must be put in order in all fields.”Footnote 27 This epitomizes the fact that the desire for order was the principal driver of legal development in the period following the Cultural Revolution. The restoration of domestic order was mainly based on a reassessment of the Cultural Revolution and a subsequent real and thorough push to move the state beyond a revolutionary posture. For the restoration of order, which was facilitated by a significant reformist agenda, Deng Xiaoping generally adopted a twofold approach that relied on an elastic and dualistic, utilitarian strategy: “Stepping back into the past in the political sector” and “moving toward the West in the economic sector.”Footnote 28
1. Stepping Back into the Past in the Political Sector
In the political sector, there were two main reasons for the convulsive Cultural Revolution: the destruction of the CCP’s collective leadership and the personality cult of Mao Zedong.Footnote 29 Responding to these problems, the restoration of political order resorted firstly to, somewhat embellished, early ideal images that were deemed to be successful examples of the CCP’s self-governance and its state-governance.Footnote 30 Reviving these ideal images prioritized the correct practice of so-called “democratic centralism (minzhu jizhong zhi, 民主集中制).”Footnote 31 The principle of democratic centralism was crucial to the CCP’s organization and decision-making during the war period before 1949 and it contributed to the successful operation of state organs after the founding of the PRC in 1949. It was deemed to be an enshrined “fine tradition of the Party (dang de youliang chuantong, 党的优良传统).”Footnote 32 For a key factor in the eruption of the Cultural Revolution was the deviation from and abandonment of this principle.Footnote 33 As Deng Xiaoping pointed out concisely:
During the period from the Zunyi Meeting of the Political Bureau of the Central Committee [in 1935] to the socialist transformation [in the mid-50s], the Central Committee and Comrade Mao Zedong invariably paid due attention to collective leadership and democratic centralism, so that democratic life within our Party was quite normal. Unfortunately, this fine tradition has not been upheld, nor has it been incorporated into a strict and perfected system. For example, when major issues are discussed inside the Party, very often there is insufficient democratic deliberation. Hasty decisions are made by one or a few individuals and votes are seldom taken, as they should be under the principle of majority rule. This shows that democratic centralism has not yet become a strictly applied system. After the criticism of the opposition to rash advance in 1958 and the campaign against “Right deviation” in 1959, democratic life in the Party and state gradually ceased to function normally. There was a constant growth of such patriarchal ways as letting only one person have the say and make important decisions, practicing the cult of personality and placing individuals above the organization. Footnote 34
The extreme concentration of intra-party power during the Cultural Revolution necessitated the resuscitation of democratic centralism as one of the key political measures taken in the reform era. As Deng Xiaoping explained:
We need unified and centralized leadership, but centralism can be correct only when there is a full measure of democracy. At present, we must lay particular stress on democracy, because for quite a long time democratic centralism was not genuinely practiced: centralism was divorced from democracy and there was too little democracy. Even today, only a few advanced people dare to speak up.Footnote 35
It must be noted, however, that the “democracy” Deng Xiaoping advocated as the key political measure to restore order was not a turn toward liberal democracy in the western sense.Footnote 36 This use of the concept “democracy” must be fitted into its Chinese context and interpreted in the framework of the Chinese Communist Party’s principle of democratic centralism. Deng Xiaoping’s reference to “democracy” refers to a step back to a class-conscious democracy based on the classic theory of Marxism-Leninism.Footnote 37 This understanding of “democracy” only emphasizes its organizational function for decision-making within the Party (that is, it merely strives for some kind of intra-Party democracy, dangnei minzhu, 党内民主).Footnote 38 More significantly, this understanding of “democracy” does not grant general electoral rights and other pertinent rights to common citizens within the state. As Deng Xiaoping explained:
What kind of democracy do the Chinese people need today? It can only be socialist democracy, people’s democracy, and not bourgeois democracy, individualist democracy. People’s democracy is inseparable from dictatorship over the enemy and from centralism based on democracy. We practice democratic centralism, which is the integration of centralism based on democracy with democracy under the guidance of centralism. Democratic centralism is an integral part of the socialist system. Under this system, personal interests must be subordinated to collective ones, the interests of the part to those of the whole, and immediate to long-term interests. In other words, limited interests must be subordinated to overall interests, and minor interests to major ones. Footnote 39
The restoration of political order also involved institutional reconstruction. But, corresponding to the total repudiation of western democracy in the ideological sphere, it also was strictly forbidden that China’s reformed institutions would adopt western democratic structural arrangements such as the division of power, multi-party system, and direct elected representation. In fact, institutional reform confronted a uniquely Chinese problem, namely the readjustment of the relationship between the Party and the state to achieve a benign interaction between them. In the post-Cultural Revolution era the realization of a benign interrelatedness between the Party and the state was principally achieved through the rebuilding of state organs. The renewed state apparatus strengthened its independence relative to the Party and achieved considerable separation between the Party and the state—albeit, and paradoxically, under the leadership of the CCP.Footnote 40 The state’s independence relative to the Party does not suggest the erosion of the CCP’s absolute leadership over the state. On the contrary, it only emphasizes the institutional rationality of state organs and their regulatory functions for the day-to-day function of the state and governance of society. This replaced the Party’s role, which, in the Cultural Revolution, dominated these functions but in a manner that was characterized by fragmentation, arbitrariness, and intermittence. In truth, the function of the state in that period had degenerated into little more than the personal orders of the CCP’s leaders.Footnote 41
From the foregoing discussion it can be concluded that in the post-Cultural Revolution era a liberal democracy in the western sense was never part of the CCP’s efforts to restore domestic political order. This was true on the purely ideological level as well as with respect to concrete institutional design. Rather, the CCP appealed to its past political practices and experiences under Marxist-Leninist doctrine and insisted that the future political order should also be based on restoring, continuing, and improving these practices and experiences. This makes the underlying strategy of the political restoration and reform after 1978 a distinctly sinicized phenomenon that is fundamentally immune to any western political solutions or edifications. A series of speeches from Deng Xiaoping confirm that, in the political sector, class narrative and class antagonism would continue to serve as an ideological firewall against the influence of western political traditions as China consolidated the political particularism of the post-Cultural Revolution era. These concepts would play this role notwithstanding their abuse in the Cultural Revolution and their domestic attenuation after the Cultural Revolution. Footnote 42
2. Moving Toward the West in the Economic Sector
The reassessment of the Cultural Revolution also led to economic reconstruction by transforming the conceptual focus of the whole CCP from class struggle to “socialist modernization (shehui zhuyi xiandaihua, 社会主义现代化).”Footnote 43 Since the founding of the PRC, the CCP was committed to and practiced a centrally-planned economy informed by classic Marxism-Leninism. This kind of centrally-planned economy was regarded as one of the core characteristics of Chinese socialism, which is—and must be—distinguished from the market economy under the western capitalism. The market economy and its underlying values, such as “private property,” “competition,” “limited government,” “free market,” and its ultimate philosophical assumption “individual liberty,” were seen as natural enemies of the centrally-planned economy under socialism and were strictly rejected in a socialist state.Footnote 44
Due to the large scale of mass political movements and the concentration on class struggle during the Cultural Revolution, the centrally-planned economy did not succeed in practice.Footnote 45 But different to the political sector, there were no ideal images or “successful experiences” in the economic sector to which the CCP could turn to inspire economic reconstruction in the aftermath of the Cultural Revolution. For this reason, economic reconstruction and the ensuing economic reform did not look to the PRC’s past. Rather, it widely and deeply turned to western ideas, including an embrace of science and technology, methods for organizing and managing modern business enterprises, and the necessary state rules and institutions.
Deng Xiaoping adopted a more open and elastic approach to the West for the restoration of the economic order and the ensuing economic reform. This was distinguished from the strict insistence on the class demarcation and identification between China and the West in the political sector. The open and elastic approach to the West in the economic sector involved softening and diluting the theoretical antagonism between the—socialist—planned economy and the—capitalist—market economy based on Deng Xiaoping’s pragmatic philosophy. This, in turn, achieved the de-antagonization with the West. Deng Xiaoping explained:
It is wrong to maintain that a market economy exists only in capitalist society and that there is only “capitalist” market economy. Why can’t we develop a market economy under socialism? Developing a market economy does not mean practicing capitalism. While maintaining a planned economy as the mainstay of our economic system, we are also introducing a market economy. But it is a socialist market economy. … Taking advantage of the useful aspects of capitalist countries, including their methods of operation and management, does not mean that we will adopt capitalism. Instead, we use those methods in order to develop the productive forces under socialism.Footnote 46
The flexibility and the utilitarian orientation of Deng Xiaoping’s pragmatism lowered the ideological fence between China and the West and paved the way for vigorously learning from the West in the economic area. Naturally, the adoption of Western economic models and structures never meant a total abandonment of some key economic elements of the socialist system, such as “socialist public ownership (shehui zhuyi gongyouzhi, 社会主义公有制).”Footnote 47 The basic and relatively mature theory for how western economic elements can be combined with socialist public ownership—namely, the “socialist market economy (shehui zhuyi shichang jingji, 社会主义市场经济)”—was formulated in the “Decision of the Central Committee of the Communist Party of China on Some Issues concerning the Establishment of the Socialist Market Economy” of 1993 (Decision of 1993). Footnote 48 In the same year, the “socialist market economy” was incorporated into the Constitution.Footnote 49 The establishment of the theory of the socialist market economy helped overcome the chasm between the Chinese socialist system and the western market economy. It also facilitated and accelerated learning from the West in the economic area and shaped China’s economic progressivism towards the West.Footnote 50
III. Incongruent Paths of Legal Development in the Political and Economic Sectors
The core of the elastic and dualistic strategy for learning from the West has involved, on the one hand, the strict rejection of western political values and institutions, and on the other hand, the positive embrace of western approaches to science, technology, and economic organization and regulation. This strategy has resulted in different paths for China’s legal development in the political and economic sectors.
In the political sector, the political requirement of regaining domestic order informed legal developments after 1978 and provided an initial incentive and continuous force for reform. Reform focused mainly on restoring the state organs and laws that were destroy after the late 1950s. Some values and virtues of law, such as stability and predictability, were emphasized.Footnote 51 The restoration of legal order first took the form of significant legislative efforts concerning the organization of state organs.Footnote 52 Deng Xiaoping strongly combined the reconstruction of the legal order with a strengthening democracy at the beginning of the Reform and Opening.Footnote 53 But laws reinforcing and institutionalizing democracy and individual freedom—the kind of laws needed to create a more open and liberal politics—never reached the standards of western liberal democracy. This, for example, is reflected in the long-term stagnation election rights for ordinary citizens.Footnote 54
In the economic field, vigorous efforts to learn from the West delivered different legal developments. In order to reduce the legal and institutional gaps between China and the West, and to facilitate the adoption of western investments and technology, law in the economic sector began to “westernize” already at the very beginning of the Reform and Opening.Footnote 55 The 1980s saw a boom of such legislation. Three important laws concerning foreign investment were enacted.Footnote 56 The aim of this regime was to lay down a “legal framework for foreign trade and investment.”Footnote 57 Other laws concerning civil and commercial activities, such as contract, intellectual property, tax, bankruptcy, civil procedure, and marriage were promulgated.Footnote 58 Naturally, legislation in this period was not limited to economic and civil subjects. Framework laws that are indispensable for a legal order, such as criminal and administrative laws, also were enacted.Footnote 59 The establishment of the socialist market economy reinforced and improved the status and function of law as part of China’s economic reconstruction. As the Decision of 1993 stated:
The establishment and improvement of the socialist market economy system must be regulated and ensured by a complete legal system. It ought to put great importance on the legal system construction, realize the unification of the Reform and Opening and the legal system construction and master the regulation of economy through laws. In accordance with principles of the Constitution, the goal of legal system construction is to accelerate economic legislation, improve civil and commercial, criminal laws and laws concerning state executive institutions and public administration, and primarily establish a legal system corresponding to the socialist market economy by the end of this century.Footnote 60
Compared with the early period of the Reform and Opening Up, the legislation enacted in support of the development of the socialist market economy in the 1990s resorted more extensively to western models for theory as well as concrete, technical details.Footnote 61 The need for economic legal reform was a matter of quantity and quality. Regulating the socialist market economy propelled the whole Chinese legal development,Footnote 62 which is characterized by continuous elaboration, sophistication, and specialization of legislation, as well as the gradual growth of judicial professionalism.Footnote 63 All of this has made it possible to speak of “commonalities, compatibilities, and convergences of Chinese law in a global context.”Footnote 64 In 2011—over thirty years after the Reform and Opening policy—it was officially declared that “the socialist legal system with Chinese characteristics has been established.”Footnote 65
C. The Tension Between Political Localism and Economic Progressivism—Legal Evolution in the “Forbidden Areas” and its Limits
The elastic and dualistic strategy for learning from the West defines the political sector as a “forbidden area” in the Reform and Opening agenda. This strategy aims to learn from the West in the economic sector while resisting the values of western liberal democracy and their political influence. The goal is to achieve ideological security and maintain the CCP’s rule. Still, the elastic and dualistic strategy, involving the simple demarcation between political and economic sectors, cannot be—and are not—maintained in reality.
I. The “Socialist Rule of Law State” as the Limit of Legal Modernization
It is inevitable that, with the opening in the economic sector, the underlying values of the western market economy, which are simultaneously of great political significance, permeated and eroded the politically and ideologically forbidden areas upon which the CCP has insisted. Deng Xiaoping’s softening of the antagonism with the West, which was viewed as necessary for carrying forward his economic progressivism, further stimulated the possibility of west-oriented political reforms within China. This imperceptibly nudged the rigid political localism of the CCP. The tension between political conservatism and economic progressivism created the necessary space for legal evolution in the “forbidden areas.”
Under classic Marxism-Leninism law is understood as nothing more than an instrument of class rule and it only reflects the will of ruling class.Footnote 66 But in the Reform and Opening era law attained connotations that previously were seen as incompatible with socialism and therefore forbidden. Similar to the minimization of the “class struggle” in the CCP’s governing ideology undertaken by Deng Xiaoping at the beginning of the Reform and Opening, the legal sector experienced changes in the 1990s. Fundamentally, the “rule of law” was no longer regarded as a thing of the western bourgeoisie. Instead, “the rule of law” was celebrated as “the common achievement of the whole human civilization, which both capitalism and socialism can employ.”Footnote 67 The traditional narratives on the class-nature of law were greatly weakened.Footnote 68
Together with learning from the West in the economic sector, western legal ideas and values have seeped into the Chinese legal sector.Footnote 69 Some crucial elements of the western notion of the rule of law were adopted and transformed into some kind of institutional reality. In the Reform and Opening era the traditional narratives on the class-nature of law were replaced, in Chinese legal scholarship as well as in official statements, with an emphasis on a number of western legal-political concepts, including: the “supremacy of constitution (xianfa zhishang, 宪法至上),”Footnote 70 the “supremacy of law (falü zhishang, 法律至上),”Footnote 71 “rights (quanli, 权利),”Footnote 72 “equality before the law (falü mianqian renren pingdeng, 法律面前人人平等),”Footnote 73 “due process (zhengdang chengxu, 正当程序),” “check and supervision of public power (gongquanli de zhiyue he jiandu, 公权力的制约和监督).”Footnote 74 These western-oriented values are institutionally implemented by corresponding legislation.Footnote 75 Learning from the West in separate legal areas eventually led to the adoption of the omnibus conception of the “rule of law” as part of the Chinese socialist legality. The constitutional amendment of 1999 confirmed, for the first time, the conception of “socialist rule of law state (shehui zhuyi fazhi guojia, 社会主义法治国家).’’Footnote 76 The establishment of the concept of the “socialist rule of law” marks the apex of the legal modernization initiated during the Reform and Opening. The concept “moves beyond ‘government of laws, not men’ to incorporate liberal democratic notions that presume limitations on the state and the expansion of individual private liberty and the market exchange economy.”Footnote 77 The “socialist rule of law” also contributed greatly to the further evolution of Chinese socialist law towards the western understanding of the “rule of law.” In the first decade of the 21st century it was embodied in the constitutional confirmation of two crucial conceptions, namely “private property (siyou caichan, 私有财产)” and “human rights (renquan, 人权).”Footnote 78 Compared with other “imported” western values, these two conceptions were more politically sensitive and had been, up that point, excluded from the learning from the West agenda.
Naturally, the “socialist rule of law” is not a total transplant of its western counterpart. The so-called “socialist rule of law” is more strongly keyed to its earlier manifestation: “governing the country according to law (yifa zhiguo, 依法治国).” The main function of that concept had been to guarantee the superior and transcendental status of the CCP over the state. Footnote 79 Core elements of the western notion of the rule of law, which are politically sensitive and at odds with the Chinese political reality of the Party-state, have been excluded from the connotations of the “socialist rule of law.” Still, the western notion of the rule of law shares with the socialist rule of law the core status of law in the modern governance of the state and society. Under the “socialist rule of law,” as distinguished from the previous history, law is used to regulate most domestic areas.Footnote 80 The space created by the tension between political localism and economic progressivism enabled institutional evolution and modernization within the state and it fostered the establishment of a more instrumentalist legal system. Still, crucial values that underpin the western notion of the rule of law were excluded because they might endanger the CCP’s rule under the Party-state reality.Footnote 81 In this sense, the “socialist rule of law” only signifies a—consciously pursued—limited legal modernization under the circumstance of the Chinese Party-state.
II. Liberal Constitutionalism: The Abandonment of Total Westernization
More radical political demands, especially the attempt to realize western liberal constitutionalism in China—a kind of total political and legal westernization—sharply contradict the political reality of a Party-state with the CCP being the unique ruling party. For this reason, western legal-political concepts such as the separation of power, a multi-party system, general and direct elections, and judicial independence encountered resolute opposition from the CCP.Footnote 82
The relatively open and loose political circumstances in the Hu-Wen era (2003–2013), the establishment of “socialist rule of law,” and the adoption of laws permitting “private property” and enshrining “human rights” encouraged more radical theoretical attempts to realize western liberal constitutionalism in China around 2013. This triggered a great debate over constitutionalism (xianzheng, 宪政).Footnote 83 Chinese liberal intellectuals’ vigorous appeals for China to adopt western constitutional democracy aimed to propel political reforms that had, at least by the standard of the western liberal democratic model, stagnated since the Reform and Opening. The aim was to achieve the political transformation necessary to move China towards constitutionalism in the western model.Footnote 84
The CCP did not treat the calls for the western liberal constitutionalism as another form of learning from the west. Instead, the CCP quickly and categorically classified this agenda as a new round in the enduring ideological struggle between China and the West. To do this the CCP revived the traditional narrative of the class-nature of liberal constitutionalism, which was an argument that had been softened and deprioritized as part of other legal reform developments that drew on learning from the west. In a top Party journal it was argued that:
The term ‘constitutionalism,’ whether it is discussed as a theoretical concept or as an institutional practice, refers to the implementation of a bourgeois constitution. It is the political standpoint and institutional arrangement of Western liberalism.”Constitutionalism is, in the final analysis, a tool for the bourgeoisie to safeguard their own domination and to implement class oppression. Although Socialist countries have constitutions, because they implement a Socialist system that is opposed to a capitalist system, they naturally do not fall into the scope of constitutionalism in the Western conception.Footnote 85
More significantly, the call for liberal constitutionalism was directly regarded as an attack on the rule of the CCP and the whole Chinese socialist system:
For a long time, some liberalist intellectuals at home and abroad saw the advocacy of ‘constitutionalism’ as the breakthrough point that was most likely to change China’s political system and a political strategy and means to deny the Four Cardinal Principles. They have done their utmost to propagate the transcendent nature and universal value of ‘constitutionalism.’ The direction of these ‘constitutionalism’ viewpoints is extremely clear, namely, they intend to abolish the leadership of the Communist Party of China and overthrow the Socialist regime.Footnote 86
The theoretical debate on constitutionalism was ended by strong official intervention.Footnote 87 The years after 2013 saw the fading away of Chinese liberal intellectuals, the disillusionment of their dream of “constitutionalism,” and the gradual reinforcement of regulation in the ideological spheres by the CCP. The attempt of a total political westernization was abandoned shortly after it began to resonate, even if only on a theoretical level. This seems to be where learning from the West in the political and legal sectors reached its limits.
Imported western values that accompanied the market-oriented reform led to the eruption of the more radical call for realizing liberal constitutionalism in China, a development marked by the constitutionalism debate in 2013. This sounded the alarm for the CCP. In order to resist the penetration of the western constitutional thought, the CCP has strengthened its control over the ideological realm. During the Xi-era, the CCP began to emphasize the “Four Confidences (sige zixin, 四个自信),” namely, “confidence in the path, theory, system and culture of socialism with Chinese characteristics.”Footnote 88 This new theoretical construction aims to strengthen the legitimacy of the CCP and the capacity of the pattern of Chinese socialism to resist the path of the western democratic-liberal system. Further, the overall leadership of the CCP (dang de quanmian lingdao, 党的全面领导) has been stressed in a series of decisions of the CCP and a recent remarkable move is that the leadership of CCP was re-incorporated into the main body of the Chinese Constitution by the constitutional amendment of 2018.Footnote 89
D. Changing External Circumstances and Their Possible Influences on the Future of Chinese Legal Development
In the last forty years, the CCP has fostered the modernization and transformation of Chinese socialist legality from a system dominated by the narrative of the class-nature of law to a system now shaped by a limited form of the “rule of law.” It cannot be denied that this legal modernization depended on the CCP’s will to advance the reform and was the result of the CCP’s positive embrace of parts of western legal civilization.Footnote 90 But this has not been a process of thorough positive adoption. The CCP’s interaction with the western mode of the rule of law exerted crucial influences on China’s legal evolution. Western law provided the Chinese legal modernization with technical and operational points of reference for law-making, judicial power, and the administration. But, objectively, it also provided externalideological pressure on the CCP to propel the internal political and legal reform towards the West. The external pressures carried within all that China has learned from the west set up the basic preconditions that forced the Party-state under the leadership of the CCP to embrace the same game rules on the international plane.
The CCP successfully resisted a total westernization in the political and legal areas. Still, many western values managed to penetrate into the Chinese constitutional framework and legal order. These included values such as “private property” and “human rights.” And they included many concrete institutions, notwithstanding their local adaptation undertaken by the CCP. To some extent, all of this evolution fulfilled the West’s “expectations” for Chinese legal and political transformation and, most importantly, enabled and facilitated the CCP Party-state’s access to and its engagement with the western world in a wide range of fields—especially economy, investment, technology, and trade. In this process the western model of the rule of law has been an attractive paragon to which the CCP’s legal reform could refer—albeit selectively and cautiously.
The external western pressure on Chinese legal reform has been dramatically counteracted in recent years. On the one hand, this is the result the resurgence of the CCP’s mighty narratives in the political and legal areas since the emergence of Xi’s leadership.Footnote 91 On the other hand, the west’s declining influence has been greatly facilitated by aroused national and populist emotion that has accompanied the deterioration of China-US relations.Footnote 92 The latter has become the biggest variable of the external circumstances for China since the Reform and Opening policy began. The years 2018 and 2019 saw the eruption and gradual escalation of the trade war between China and USA. The tariff measures and other protectionist and unilateralist measures taken by the USA according to its domestic laws against China were widely viewed as “arbitrary, capricious and hegemonic” by Chinese officials, intellectuals, as well as ordinary people.Footnote 93 Further, the Trump Administration’s intention to use the “whole-of-government” to counter China led to aggravated sanction measures aiming to force China to change its “improper activities.”Footnote 94 This induced greater nationalist sentiment in China. The aroused nationalist and populist feeling strengthened the authority and legitimacy of the CCP, as it depicted itself as the resolute defender of the interests of the Chinese state and the Chinese people.
Naturally, it is somewhat unjustified to argue that the deterioration of the China-US relation and the tit-for-tat measures from both sides would reverse the existing CCP’s rule-based practices in regulating its domestic affairs and ruin the achievement of the limited “rule of law.” Actually, as one crucial measure to counter the USA’s hostile acts, the CCP has endeavored to describe itself as the defender of the international multilateralism in the changing word.Footnote 95 This puts China in the position of emphasizing more rule-based governance in domestic and international affairs as a way of maintaining its gesture to advance the process of Reform and Opening.Footnote 96 Further, in a series of decisions as well as institutions in the Xi-era, the CCP expressed continuously its firm will to strengthen the role of law in the governance of state and society.Footnote 97
Still, the soaring nationalist and populist sentiment has allowed the CCP to continue to advance its political localism with the perpetuation of its leadership as the core. By doing this, it located itself in a more conducive environment to resist the liberal-democratic transformation that has been externally expected or, more accurately, required by the West. Isolated from western ideological pressures, the CCP is also more determined to practice those means for legal reform that not only obviously depart from China’s practices of the legal reform in the past forty years with the functional separation between Party and state as their keynote and precondition,Footnote 98 but also more sharply depart from the western model of the rule of law. The legal reform in the Xi-era is aligned with the increased political localism characterized by the Party’s overall leadership and the functional atrophy of state organs against their Party counterparts.Footnote 99
E. Conclusion
Trapped in the ideological conflicts and the discrepancies of the political reality between China and the West, learning the West in the political and legal areas has been a double-edged sword for the CCP to achieve its legal modernization. To maintain its leadership, the CCP generally adopted an elastic and dualistic strategy based on the political localism and the economic progressivism. The positive embrace of the western rules and institutions in the economy and other related areas gave birth to the so-called “socialist rule of law”—as a kind of limited legal modernization—which was not designed to challenge the prerogative status of the CCP over the state, accelerated, however, the growth of a functionally independent state characterized with the continuous rationalization and institutionalization in the day-to-day governance of state and society. Under the elastic and dualistic strategy, the model of the western liberal constitutionalism has never become a choice for the CCP to advance the Chinese political and legal reform during the Reform and Opening era. This rigid standpoint of rejecting the western liberal constitutionalism was defined by Deng Xiaoping at the very beginning of the Reform and Opening policy, insisted on in the following forty years and newly evidenced and reinforced by the rapid abortion of the theoretical debate over the constitutionalism in 2013.
The resurgence of the CCP’s mighty narratives in the political and legal areas since the Xi’s leadership as well as the nationalist and populist emotion in China aroused by the struggles against the USA facilitate the CCP to strengthen its further control over ideological spheres and the tendencies of the political localism in the Xi-era which fortify the Party-state system, enshrine the comprehensive leadership of CCP will aggravate. In this sense, the basic direction of the legal reform in the past forty years with the functional separation of the Party and the state as its precondition will be inevitably reversed. Consequently, in the foreseeable future, the hope of some kind of democratic transformation towards the West and the realization of liberal constitutionalism will become, when not totally impossible, slim.
Nonetheless, the continuous institutional and legal evolution within the state will not likely cease. With describing China as the defender of the international multilateralism during the trade war and the ensuing struggles between China and the USA, the CCP can be further open to its trade partners and the whole world which will enhance the necessity to achieve the adaptions of China’s domestic rules with the international, and western, rules and practices abided by the most countries. This will propel the Chinese legislators and reformers to rely more and more on the western experiences and rules and advance the further consummation, professionalization, and sophistication of the Chinese socialist legality. Those “marginal”—that means they don’t directly threaten and challenge the rule of the CCP—imported values of the western rule of law accompanied the market-oriented reform will also obtain the continuous institutional guarantee and realization under the framework of the “socialist rule of law state.” The newest evidence is the adoption of the Civil Code of the PRC in 2020, which signifies the further rationalization of the Chinese socialist legality. However, it is also predicable that—with the full resurgence of the fusion of the Party and the state—the formal legal system and state organs can confront greater pressures from the Party’s direct and expedient interventions in various forms like in the pre-reform era.
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