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In spite of the consensus that has gradually taken shape in Chinese society as regards the building of a modern rule-of-law order, there has emerged with it a series of challenges to the institutional design of constitutionalism and those paradigms fundamental to legal scholarship – challenges that have been brought to the fore by the new realities and epistemics in the structural changes taking place the world over. They have further complicated the status quo in both theory and practice confronting contemporary China.
China has experienced a fundamental change in its mode of economic management since its reforming and opening up to the outside world: from ex ante administrative permits and direct regulation to ex post judicial remedies and indirect restraint. According to a Chinese economist, it is characterized by “progressive interference of the judiciary in the market control” (Zhou 2004, p.262). The proper role of the judiciary in the market economy depends on its strict impartiality and final ruling, which call for a higher degree of judicial independence and a higher level of judicial technique. However, in light of the existing institutions and their practices, China’s judicial power is unique because the principle of judicial independence is not established in its operation.
This book was originally published in Chinese in October, 2014 right before the Fourth Plenum Meeting of the Eighteenth CPC National Congress, where the Party issued a decision on Several Important Issues on a Comprehensive Framework for Promoting the Rule of Law – a decision that had solicited the input from a group of legal experts prior to its public announcement. Arguably to a certain extent, this book, with its content, the discussions, and debates thus stirred, as well as book events and conferences organized thereof, has been an expression par excellence of a modern rule-of-law positionality, as it attempts to exert some positive influence on the direction of development for institutional reform in China. This is a target, the accomplishment of which requires that it tailors its accessibility (e.g., the length originally planned for this book and the level of complexity in its style of argumentation) to the need of such nonlegal professionals as policy-makers, government cadres, and the general public. What has remained unexplored, unelaborated, or unexplained now goes into the pages of this English version, presenting to the English-speaking audience a fuller, more nuanced, and greater detailed epistemic profile. The chapters have been expanded to incorporate more arguments, resulting in the change of the style of argumentation, thus demanding a few more words for the purpose of clarification.
The scandals in Chongqing of the arrest of the lawyer Li Zhuang, the murder of Neil Heywood, and the vice mayor (the so-called anti-mafia hero) defecting to the US consulate have revealed in a dramatic manner, albeit with a bit of comedic black humor, how powerful, ill-disciplined interested groups can create difficulties for economic reform and engender the disintegration of the power structure and distrust in government. For this very reason, since 2012, there has been an increasingly heightened social expectation of political reform. It is against this background that the Report of the Eighteenth Communist Party of China (CPC) National Congress (hereinafter referred to as the “Report”) emphasized the rule-of-law thinking (法治思维) and rule-of-law style (法治方式) in handling the interactions between reform, development, and stability. A close examination of these two rule-of-law emphases can help us to discover a new way of thinking behind political reform.
Generally speaking, ideology is as much a concept with a strong sense of politics, as a system of beliefs that is class-based, especially the ruling class. Nevertheless, Manheim’s redefinition of ideology from the perspective of the sociology of knowledge (Wissenssoziologie) has greatly expanded its connotations and extensions (Mannheim 1936, 2009). A wider conception of ideology can be put forward here, considering the sea changes occurring in China’s society and economic structures since reform and opening-up in 1978, as well as such ground-breaking statements made by the Chinese Communist Party during its Fourth Plenum of the Eighteenth Party Congress “to regulate and restrain public power” and “to improve the public credibility of the judiciary.” Ideology can be defined as principles, values, morality, political conceptions, or even scientific knowledge knitted together with utilitarian ends – all phenomena that can be used by groups and organizations to support their claims, with its scope extended to cover the communal spirit of the legal profession and the principles in legal doctrines.
It has been argued that during the Western Zhou, Chinese monarchs adopted a multicentric governance model (Wu 2013, pp.137–57). The successive Spring and Autumn Period was a time marked by a collapse of rites and corruption of norms (礼崩乐坏), while the Warring States Period by great chaos of competing to be the hegemon. Both periods were characterized by a disruption of sociopolitical order en masse – a disruption so unsettling that Chinese history moved again toward the concentration of power and a unipolar model of political governance. Qinshi Huangdi, the emperor of Qin, unified China, ended its disunity, and created a highly centralized structure of political power. Lord Shang, a well-known minister in the unified Qin Empire, once suggested that “[o]nly when a sage rules the country will he strive for singleness of purpose.” The means to achieve this goal is by the law, with its guideline being a draconian legal system that is founded on strict reward and punishment. This effective control serves the purpose of building a sense of authority among the people. In the eyes of a legalist in ancient China, inasmuch as the monarch monopolizes power and uses it as an instrument for state governance, this can easily achieve its effectiveness. As Guanzi argued, “[m]ajesty cannot be wielded by two persons; government cannot have two gates. When a ruler uses laws to govern his country, he need only put them in place and that is all.” This practice of subjugating the law to political power has one archetype – Li Kui’s The Canon of Law (法经).