China Is Closer to the Rule of Law than Ever, But...

03/03/2015 01:17 pm ET | Updated May 03, 2015
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BEIJING -- In China, the tradition of placing power in the hands of a strong leader has a long and deeply rooted history. Although Chinese feudalist societies produced such legalist icons as Shang Yang and Shen Dao, with their maxims "rule according to law," the more dominant position was held by Confucius, whose maxim was that government is a human matter. That ideology has allowed a particularly stubborn "strong-man complex" to develop in China.

The strong-man ideology gets some things right, at least in the abstract. History shows that when a good emperor leads good ministers, it is indeed possible for the country to be both functional, prosperous and peaceful. The difficulty is that good emperors and officials are hard to find, and have relatively short lives. It is simply too dangerous to base the security and well-being of the nation and its citizens on such a weak foundation. Yet the Chinese system presumes that the person or group holding power are good, and so lacks provisions against those who abuse their authority. Just a single "emperor" going bad is enough to send the system into a vicious cycle of corruption.

Since the 1970s there have been many indisputable legislative successes in China, which have brought the country from anarchy to relative lawfulness. Nevertheless, the Chinese have not yet cultivated behavior conducive to rule of law. The state of Chinese society is not one of insufficient legislation, but of legislation insufficiently applied and adhered to. In other words, the reality in China today is that the laws are often ignored. To give one example: "Red light means stop, and green light means go" is a rule known to every child, yet on city streets in China, it is common to see drivers, bicyclists and pedestrians run red lights. It should perhaps come as no surprise that government officials dare also to "run red lights."

As system operators, many officials continue to think that power stands above the law, and so certain people stand above the law: internal policy is above the law, as are the demands of superiors. In many places, the officials in charge operate according to this principle: if there is no instruction, the law is followed; if there is an instruction, then the instruction is followed, not the law. Selective application of the law is also a sign that the law is not being followed strictly enough. Some officials turn their backs on the basic principle that all are equal in the eyes of the law, and instead treat people differently based on who they are.

In China there has long been an emphasis on guanxi, or relationships, between people. Certainly all people who live in societies become involved in all manner of relationships, good, or bad, close or distant. The law is not opposed to relationships; on the contrary, the law is meant to set behavioral norms and standards for them. But what this author refers to by the term guanxi is that sort of relationship that "opens doors" to "hidden paths," and this sort of guanxi goes against the spirit of the law.

The Chinese emphasis on guanxi to accomplish various tasks dates from the mid-1970s. Gradually, it seemed that guanxi was necessary to accomplish anything desirable, like entering university; seeing a doctor; finding goods to purchase; eating at restaurants; getting a job; asking for a raise; being promoted, and doing any kind of business. Guanxi was even more critical to government bureaucracy. Thus, taking sides and forming cliques became and continues to be a common feature of socio-economic life in China.

In a society that places such high emphasis on guanxi, the laws are often overlooked, because when guanxi is available, the rules can be ignored -- they can be applied when needed, and not applied when not. This is especially true when rules are unclear or never made public: there will be a difference in the treatment of those who have guanxi compared to those who have none. Those with none will have a hard time of it even if their demands are simple. And those who have guanxi may find that their needs are met smoothly even when they are far from reasonable. The result is that the people will do anything to obtain or construct guanxi. Also, the sheer use value of guanxi also keeps increasing, from purchasing rationed meats to land-and resource-development deals, from amounts in the tens of yuan up to hundreds of millions of yuan. Never strong in the first place, laws and customs weaken further in Chinese society, as its members consider the law to be of little consequence or use. Those who ignore the rules are counted all the bolder for it, while those who find ways around them are admired for their talent.

The Fourth Plenary Session of the 18th CPC Central Committee concluded in Beijing on Oct. 23, 2014. The Communique issued after the meeting lays out the general objective of building a system serving "the socialist rule of law with Chinese characteristics" and a modern state with the rule of law, in order to fully advance rule of law in China.

The Ming dynasty statesman Zhang Juzheng once said: "Of all things under Heaven, the difficulty is not in establishing law, but in enacting it." The best measure of a country's progress toward rule of law is not legislation, not the laws on the books, but rather the enactment of the law in real life, the place it holds in the eyes of the people. Therefore, the fourth plenum emphasized the concepts "the life of a law lies in its implementation" and "realizing scientific legislation, strict enforcement, judicial justice, and cultivating law-abiding citizens." The goal is not far from us, but the only question is how fast can we act to achieve it?