Let One Hundred Flowers Bloom, One Hundred Schools Contend: Debating Rule of Law in China

Abstract

Historically, modern conception of rule of is integrally related to rise of liberal democracy in West. Indeed, for many, the rule of law means a liberal democratic version of rule of law. There is, however, little support for liberal democracy, and hence a liberal democratic rule of law, among state leaders, legal scholars, intellectuals or general public in China. Accordingly, if we are to understand likely path of development of China's system, and reasons for differences in its institutions, rules, practices and outcomes in particular cases, we need to rethink rule of law. We need to theorize rule of in ways that do not assume a Western liberal democratic framework, and explore alternative conceptions of rule of that are consistent with China's own circumstances. To that end, I describe four competing thick conceptions of rule of law: Statist Socialism, Neo-Authoritarian, Communitarian and Liberal Democratic. In addition, I contrast all four variants of rule of with rule by law, and suggest that China is in transition from rule by to some version of rule of law, though probably not a Liberal Democratic one. I then address a number of thorny theoretical issues that apply to rule of theories generally and more specifically to applicability of rule of to China. For instance, can minimal conditions for rule of be sufficiently specified to be useful? Should China's legal system at this point be described as rule by law, as in transition to rule of or as an imperfect rule of law? How do we know that goal of legal reforms in China is rule of as opposed to a more efficient rule by or some third alternative? Given many different interpretations of rule of law, should we just stop referring to rule of altogether, or at least reserve rule of for Liberal Democratic rule of states? Finally, turning from theory to practice, are non-Liberal Democratic rule of systems sustainable?