In China, the law and morality must work in tandem to contain party elite
Lanxin Xiang says Beijing's recent legal reform, when not coloured by Western filters but understood in the context of China's political history, is a groundbreaking effort to curb corruption
Montesquieu's has for more than 200 years led many in the West into believing that the tension in the Chinese political system is created by the lack of "democratic legitimacy" and the suppression of individual freedoms. This is a common misunderstanding based on ignorance of Chinese political history. Western observers tend to make a distinction between the "rule of law", Western-style judicial justice, and "rule by law", dictatorial rule by legal provisions, for example, Hitler's Nuremberg Laws.
It is not surprising that comments in the Western media on the Communist Party's recent fourth plenum were largely negative. However, the assumption that China only practises rule "by" law, rather than the rule "of" law, for the purpose of strengthening its one-party dictatorship, is too simplistic and misleading.
This argument overlooks the fact that the Communist Party has to align its interests with those of the people, or the regime will fall. This is because the Chinese people understand political legitimacy through Confucius' eyes, that is, they expect correct moral behaviour from the political elite. The party is no exception; thus, even its publicly declared principle of judging legitimacy is a kind of Confucian "deeds legitimacy", in the "spirit of morals", rather than a "procedural legitimacy", which is in line with the more mechanical "spirit of laws".
Clearly, not all the party elite put the people's interests above their own. The regime is rotten from within, as the unprecedented level of corruption and rent-seeking under the leadership of Deng Xiaoping , Jiang Zemin and Hu Jintao showed.
The Chinese leadership is facing its biggest legitimacy crisis since 1949, at least in the eyes of the population. It is apparent that corrupt officials have successfully taken advantage of the flaws and loopholes in the procedures within the dysfunctional party disciplinary machine, the Byzantine state administration and the mafia-style judicial games.
After decades of inaction, the emperor of China was the only one who did not know that he wore no clothes. But the party's new generation of leaders refuse to be naked in the eyes of the public and wisely recognise that the party must repair its crumbling reputation through legal reforms, to enforce the party rules more efficiently by due procedure.
But, of course, the sense of urgency in the legal reforms is not motivated by creating Western-style rule of law. It is driven by the desire to restore the credibility of the party, deeply rooted in its glorious past and based on a popular belief that, as President Xi Jinping has argued, there are no party interests above the interests of the people.
Mere propaganda on this point - through such esoteric slogans as the "three represents", "a harmonious society", or "scientific development" - is no longer credible. Hence, legal reform creates the only bright spot to reinvigorate popular hope and support for the real reforms China urgently needs for the transformation of its economy and society.
In this sense, the central purpose of the legal reforms is to control the party officials through rule "by" (presumably "good") law, not to provide Western-style rule of law. The key reform goal is to insulate judicial procedures from direct interference by the party elite. It hopes to achieve this by introducing a semi-autonomous circuit court system, to separate judicial procedures from administrative power.
Though hardly a ground-shaking step, the potential consequences of the reforms proposed at the party plenum will be far-reaching, because, for the first time, the party's almighty and ubiquitous power will be contained within due procedures.
More importantly, if the proposed legal reforms work, one could even foresee a trend towards convergence with Western-style rule of law while certain Chinese characteristics may remain. For thousands of years in China, a dynasty's rise and fall has been dependent on the performance of the leadership, rather than on a particular decision-making mechanism. Politics in the Chinese context is all about ethics-based human action, unrelated to space. Power can never be separated from human character and behaviour; how could it be turned into three or more "divisions", as Montesquieu suggested?
The argument of the rule of law is predicated on the principle that all are equal before the law. The Western concept of "rule of law" is based on individual rights; the law is the ultimate protection for these rights against the state. In traditional China, individual rights were never considered superior to collective rights. Laws were created as a supplement to social rituals, useful for articulating administrative duties to overcome the deficiencies of these rituals in maintaining social stability.
Thus, the evolution of the law in China may be described as a devolution of ritual into law, and of law into punishment. Institutionally, the Chinese state never developed a ministry of "justice", but only one of "punishment". Confucius, who once served as a chief minister of punishment, explained the principle of "shame" in Chinese legal thinking: "Lead the people with administrative injunctions and keep them orderly with penal law, and they will avoid punishments but will be without a sense of shame. Lead them with excellence [virtue] and keep them orderly through observing ritual propriety and they will develop a sense of shame, and moreover, will order themselves."
Hence the Western contractual concept of law derived from the fictional "social contract" hardly makes sense in the Chinese legal setting. It is impossible for the Chinese to accept that more lawyers and litigation would be the right way towards social stability and justice; rather, they are seen as a worrying symptom of social chaos and general moral decay.
The current leadership has actually made much progress towards the rule of law; implicitly, the Communist Party has now accepted the universality of the rule of law principle. But it will be hard for China to abandon its tradition of giving priority to morality rather than judicial punishment. This is why Xi has stressed again and again the importance of recreating party virtue, while at the same time implementing proper legal procedures as a supplementary measure to control the political elite.
