Rule of law: one term, two characters, many meanings

A millennia-old phrase is the centrepiece of the Communist Party's judicial reform push but how accurate is its official English translation?

PUBLISHED : Monday, 10 November, 2014, 6:18am
UPDATED : Monday, 10 November, 2014, 8:52am

President Xi Jinping called for it, the Communist Party endorsed it and the country's judicial system is to be governed by it but there is still no consensus on how it should be rendered in English.

At the end of the annual gathering of the party's elite last month, leaders backed Xi's push to promote fazhi - a concept officially translated as "rule of law". But others argue that the term is better translated as "rule by law" or "rule through law" to drive home the point that whatever the changes to the system, the law is not something unto itself - it's there to serve the party.

The term fazhi is comprises two characters - fa meaning "law" and zhi meaning "to rule" and "to govern" - and dates back to the second or third century BC.

University of Nevada political science professor Xiaoyu Pu said "rule of law" and "rule by law" both meant that law should govern a nation.

But while "rule of law" in the western sense stressed that political authority should be held in check by the law, the "rule by law" in the Chinese tradition underscored the use of law to rule society.

In the West, rule of law is also associated with democracy, government accountability and human rights, elements that have long been rejected by the Communist-ruled government.

Nicholas Calcina Howson, from the University of Michigan's Law School, said the party and the government had increasingly used other rhetorical forms in the last decade, such as yifa xingzheng (to administer by law) and fazhi zhengfu (to govern by law). It is also about what is called yifa zhiguo (rule by law).

"These latter formulations conjure up a state not where there is constitutional review and civil and political rights protection - much less democratic institutions - but where government administration is pursued according to law," said Howson, who has been a consultant to various Chinese ministries, in particular on the formulation of key statutes.

Lynda Oswald, professor of business law at the University of Michigan, said that in the US the rule of law was a "constitutional system of checks and balances; in parliamentary systems, it's their system of no-confidence votes and regular elections". "But in China … it is clear that the party remains above the law," she said.

Indeed, the party has stressed that its absolute leadership is a requirement for the promotion of the "rule of law". The 16,000-character statement issued after the plenum also emphasised the strong "Chinese characteristics" in such an endeavour.

Analysts also noted that the party gathering endorsed a raft of legal changes to promote a more predictable and rule-based legal system while keeping the courts under the party's firm control.

The leadership said in a keynote document released after the plenum that the party would retain ultimate control over the legal system. "Socialist rule of law must uphold the party's leadership, and party leadership must rely on socialist rule of law," the post-plenum document said.

Howson said the party would neither introduce true rule of law nor "party rule of the judiciary".

"Is it the same idea as the form of governance used to describe how both the Kuomintang after 1927 and the Communist Party after 1949 governed China - with Chiang Kai-shek's 'party-ised judiciary' and the Maoist regime's complete subjection of the legal system to Communist Party leadership," Howson said.

However, Oswald said that the fact that the party had begun a conversation on the rule of law was encouraging. "Merely using the vocabulary - 'rule of law' - is a step forward," she said.

"That doesn't mean that this conversation might not eventually lead to significant and welcome reform at local levels of government."