Law's Relation to Political Power in China: A Backward Transition

INTRODUCTION

By and large, for the past dozen years, China's professed transition toward the rule of law has witnessed more setbacks than progress. The extent to which the exercise of governmental power should be subject to domestic and international legal restraints continues to be a matter of enormous importance. This is true in every country and in relations among countries in our increasingly interdependent world. The earth-shaking impact of Donald Trump's election to the American presidency has made the relationship of law to power as preached and practiced by the United States a virtually universal concern. Yet, as Americans and others strive to cope with this new challenge, the world is also increasingly anxious about how a rising China—with more than four times the population of the United States and almost as much economic strength—respects the "rule of law" at home and abroad.

This essay, building on the excellent analysis by Jean-Philippe Béja (this issue, 203–30) updating his earlier overview of the political situation in the Central Realm, will focus on China's domestic legal situation. In doing so, we must be fully aware that the People's Republic of China (PRC)—an increasingly oppressive Marxist-Leninist dictatorship—denies foreign scholars, and even its own people, the opportunities for knowledge and analysis that American freedoms of expression and transparency offer domestic and foreign observers of the United States. I regret the limitations that these restrictions impose upon my comments.

THE CURRENT POLITICAL-LEGAL CONTEXT

Attempting to assess the state of law and government in any nation is hazardous, since reality is usually messy and contradictory, and surely this is the situation in contemporary China. In 2014, the fourth plenary session of the Chinese Communist Party's eighteenth Central Committee, in unprecedented fashion, devoted itself to stressing the importance of the rule of law (fazhi)—in the sense of government under law, not merely rule by or through law (Central Committee of the Communist Party of China 2014; Peerenboom 2015¹). Moreover, Party general secretary Xi Jinping on many occasions has admonished the administrators of the judicial system to strive to respect the Constitution and legislation, and to render justice in every case (see Zhou 2014, who quotes Xi Jinping: "let the public feel fairness and justice from every case"). Yet, at the same time, Xi Jinping and the current leaders of Chinese legal institutions, including the judiciary, have relentlessly emphasized that the legal system, as well as the government, the legislature, the media, and all social and economic organizations, must always operate under the Party's strict control (see Speech at the Central Political and Legal Work Conference 2014; Compilation of Xi Jinping's Expositions on Rule of Law: Chinese Law and Government 2016, 468–74, in which Xi states "the political and legal front must unequivocally uphold the party's leadership"; Finder 2017a; Zhou 2016²).

The amendments to the Chinese Constitution that were adopted in early 2018 vividly illustrate both trends. On the one hand, the existing commitment to "improve the socialist legal system" was replaced by a commitment to "improve the socialist rule of law." All state employees were required for the first time to take an oath to support the Constitution, and the name of the Law Committee of the National People's Congress (NPC) was changed to the "Constitution and Law Committee." On the other hand, other amendments made central the Constitutional assertion of the absolute domination of the Chinese Communist Party over all government institutions. This was made shockingly clear to the country and even to the Party elite by a surprise amendment that eliminated the previous restriction limiting China's president and vice president to two successive five-year terms in office. This has made possible the life tenure of President Xi Jinping, the Party's undisputed and all-powerful leader, assuring his continuing control over the government as well as the Party (NPC Observer 2018).

To consolidate the Party's and Xi's absolute domination not only of the government but also of...