Now that China's leadership transition is complete, the world is asking: Where will China's new leaders take the country? Will Xi Jinping and his colleagues live up to the goal of establishing a society under the rule of law?
So far, Xi has been sending mixed signals. He has spoken of tolerance for sharp criticism of the Communist Party, abolishing re-education through labour, and "putting power in an institutional cage" to prevent official corruption. However, he has also counselled party officials against "allow[ing] any subversive errors when it comes to the fundamental issues".
China has also made significant progress in legal reform, but there are stubborn impediments to the rule of law. Chinese courts are still subject to political interference. The Chinese party-state still punishes government critics, charging them with vague crimes like endangering state security, sending them to re-education through labour, or just forcibly confining them to their homes. Local officials detain petitioners in "black jails" to prevent them from voicing their complaints.
Under the Chinese constitution, courts should be independent and citizens are guaranteed the right to free speech and to file petitions. The black jails, soft detention, political interference with judicial decisions, punishment for the exercise of free speech; these all appear to be inconsistent with Chinese law. Are these actions a violation of Chinese law or is there something about the Chinese legal system that outsiders simply do not understand?
Chinese leaders often refer to a "socialist legal system with Chinese characteristics" but what do they mean by "socialist" and what characteristics are "Chinese"? There never seems to be an explanation and we are left to speculate on why China does not seem to follow its own rules, especially when it comes to cases deemed "sensitive". Why does the government impose such harsh punishment on critics who do no more than post critical essays on the internet? Why does the government detain citizens without any apparent legal basis and without due process?
Is it possible that, despite all of the enormous changes in Chinese society, the guiding principle of the party is still the Maoist ideology expressed in the Chairman Mao Zedong's famous 1957 speech "on the correct handling of contradictions among the people"? According to Mao, there are two types of contradictions: those among the people and those "between ourselves and the enemy".
Contradictions among the people can be worked out through persuasion but when it comes to contradictions with enemies, they must either be reformed through forced labour or eliminated.
How did Mao distinguish between friends and enemies? The only guidance he gave was identification by class and a simple loyalty test: you are either with us or against us.
There was never a written standard of conduct and there was no process for reaching a determination of who was and who was not a counter-revolutionary. There was certainly no process to challenge the determination once it was made.
Mao's way of "handling contradictions" is the very definition of arbitrariness and it led to brutal political campaigns culminating in the horrors of the Cultural Revolution. Does Maoist thinking from the 1950s have any place in Chinese society today? Mao's guidance on how to handle contradictions is, in its essence, a repudiation of the rule of law.
At a minimum, a society under the rule of law demands clear standards of behaviour and due process to determine whether those standards have been violated. China has adopted a constitution that explicitly embraces the rule of law and has passed legislation that appears to set standards of behaviour. Yet the party-state seems to reserve to itself the right to disregard the constitution and the law when it interferes with the imperative to eliminate its perceived enemies.
Is there a moral or even a utilitarian justification for such apparent lawlessness? Does the party-state's imperative to maintain social order explain why China's leaders feel justified in ignoring constitutional principles and legislation? Do they still heed Mao's exhortation to identify enemies of the state and deal with them without resort to any legal constraints?
Some party leaders believe that Chinese society can remain stable only if the party maintains its monopoly on political power. Carried to its logical extreme, all criticisms of the party can be deemed to be attempts to undermine the party's authority and thus threaten social stability. This, apparently, is what justifies repression of dissent.
Yet isn't it time to challenge this ideological assumption? The Communist Party's grip on power is hardly in question. The only real risk to its authority is the potential for self-inflicted wounds that cause it to lose support among the masses. Using law to regulate citizens' relationships with each other and the state, and resolving the "contradictions" that arise, is the most stable, civilised way of resolving disputes and dissipating social conflicts.
Critics of the administration alert the authorities to social problems in need of resolution. Mass incidents that sometimes become violent are not the result of outside agitators but are actions taken when citizens' grievances are not addressed. Without the rule of law to resolve those grievances in a civilised and effective way, citizens can and do resort to actions that tend to undermine social stability.
A commitment to the rule of law does not undermine social stability; it strengthens it. The rule of law is fundamentally incompatible with the arbitrary exercise of power that Mao encouraged during a very different time in a very different kind of society.
Wouldn't this be a good time for China's leaders to abandon Mao's method of handling contradictions and unequivocally adopt the rule of law instead?
Ira Belkin is executive director of New York University's US-Asia Law Institute