China’s party-and-state leader tries to bring government officials under the reach of the legal system. But the purpose of this approach is less about ensuring compliance with the law than about ensuring the top leadership’s control over its bureaucracy.
Chinese concepts of the law differ in many important aspects from those in Western democracies. In imperial China, the term “governing the country by law” (rule by law) referred to the law as an instrument to guide and control the population. This is why scholars of Chinese law usually translate the term 法治 to “rule by law” instead of “rule of law.” This aspect still dominates under China’s current Communist rulers, although the current legal system contains more rules than in the past to protect citizens’ rights against the state.
Another feature of China’s traditional view of the law is that it was not evenly applied, as would be demanded under “rule of law” in a Western sense. It typically only applied to ordinary people who had to fear rigorous penalties for trespassing. By contrast, high-ranking government officials had little or no legal accountability.
This situation seems to be changing dramatically under China’s President Xi Jinping, who added the word “comprehensively” to the term “governing the country by law” in his often-quoted speech at the 2014 plenary session of the Congress of the Chinese Communist Party (CCP). With an inflationary use of the term, the CCP leadership plans to intensify control over the daily work of party cadres and government officials at all levels of government.
Recently, Xi stated, “the rule by law is our historical mission.” Hu Haifeng, former President Hu Jintao’s son and mayor of Jiaxing, responded immediately by taking more than 100 local government officials with him to attend a trial held by a local administrative court. The trial was about a legal dispute in which an operator of a quarry sued a county government for illegally closing down its site. That trial focused on whether the administrative decision made by the government was consistent with the law. After the hearing, Hu told his subordinates that government officials must pay homage to the law.
“Rule by law” increasingly means CCP’s control of government officials
Previous leaders used the term “rule of law” to signal improvement in legal clarity and judicial recourse for its citizens. In 1999, the term “governing the country by law” was written into the Constitution. China’s entry into the World Trade Organization in 2001 required a more predictable and reliable domestic legal system – at least in the areas of business and trade.
Yet the leadership kept stressing distinct “socialist and Chinese characteristics.” Based on this rationale, they objected to the introduction of a Western-style “rule of law.” Then-President Jiang Zemin advocated a combination of “rule by law” and “rule by virtues.” His successor Hu Jintao preferred a “harmonious rule by law” (the fewer lawsuits, the better).
This rule-by-law model is largely a duplication of China’s ancient rule-by-law ideals. Party cadres paid daily lip service to the law but they knew that the CCP would make sure that these laws would not be enforced against them. Towards the end of Hu’s term, government officials often disregarded laws and orders from the top CCP leadership. In practice, powerful cadres such as Zhou Yongkang and Bo Xilai acted without any boundaries.
When Xi ascended to the helm of the CCP, he sought to reassert control through his relentless anti-corruption campaign. This campaign had the undesired effect that numerous cadres at lower levels slowed down their work for fear of being punished for corruption or out of a lack of motivation. For Xi, however, the “rule by law” approach offers the solution. Rather than just exerting pressure through the CCP, he lowered the thresholds for citizens to sue government organs over wrong and unfair decisions.
Rule of law remains a remote vision
Certainly, this rule-by-law approach differs from that under Xi’s predecessors in that it expands the law’s reach to government officials and party cadres. Yet the rule-by-law approach remains an instrument to control civil society. Between 2014 and 2017, the Party-state enacted several laws that restrict civil rights using the notoriously vague concept of “national security”: the Anti-espionage Law, the Anti-terrorist Law, the Overseas NGO Law, the National Security Law, the Cybersecurity Law, and the National Intelligence Law.
Ultimately, Xi’s emphasis on equal application of the law serves his goal to bring certain “corrupt” officials and cadres to justice. It is inspired not by the “spirit of the laws” in the sense of Montesquieu, but by the famous dictum “I am the State” (L’état, c’est moi) ascribed to Louis XIV. The “rule of law” cannot take hold in China as long as the Party stands above the law. Xi Jinping has taken this notion one step further. It would seem that for him, the Party is the law.
A slightly modified version of this blogpost was previously published on the Oxford Human Rights Hub Blog on July 26, 2017.