Retreat of the Party and the state

Abstract

This chapter examines the theoretical relationship between single party socialism and rule of law as well as the actual role of the Party in legal reforms and the daily operation of the legal system. I argue that although single party socialism is not compatible with a Liberal Democratic or Communitarian rule of law, it is theoretically compatible with a Statist Socialist or Neoauthoritarian rule of law. In practice, however, the Party, Party organs, and individual Party members often act in ways that are inconsistent with any form of rule of law. Nevertheless, the Party is only one of the obstacles to rule of law. In terms of the daily operation of the legal system, the most significant obstacles are systemic or institutional in nature. The Party plays only a limited role in the day-to-day operation of the legal system. Its role in law-making and administrative rule-making is increasingly indirect and limited to macro policy guidance and review; moreover, only rarely does the Party directly intervene in the adjudication of specific cases. Rather, the Party's main relevance to rule of law lies in its ability to promote or obstruct further institutional reforms required to implement rule of law. The Party's role in the legal system must be understood against the backdrop of the changing role of the Party in the Chinese polity as a whole.