Let One Hundered Flowers Bloom, One Hundred Schools Contend: Debating Rule of Law in China

Michigan Journal of International Law Volume 23 Issue 3 2002 Let One Hundered Flowers Bloom, One Hundred Schools Contend: Debating Rule of Law in China Randall Peerenboom University of California, Los Angeles Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Comparative and Foreign Law Commons, and the Rule of Law Commons Recommended Citation Randall Peerenboom, Let One Hundered Flowers Bloom, One Hundred Schools Contend: Debating Rule of Law in China, 23 MICH. J. INT'L L. 471 (2002). Available at: https://repository.law.umich.edu/mjil/vol23/iss3/1 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. LET ONE HUNDRED FLOWERS BLOOM, ONE HUNDRED SCHOOLS CONTEND: DEBATING RULE OF LAW IN CHINAt Randall Peerenboom* I. THIN VERSIONS OF RULE OF LAW ................................................ 477 A. Advantages of Thin Theories................................................ 480 B. Normative Concerns About Thin Theories and the Relation Between Thin and Thick Theories .................... 482 II. FOUR IDEAL TYPES: STATIST SOCIALIST, NEO-AUTHORITARIAN, COMMUNITARIAN, LIBERAL DEMOCRATIC .................................... 486 A . The Economic Regim e .......................................................... 490 B . The Political O rder .............................................................. 492 C . Perspective on Rights ........................................................... 494 D. Purposes of Rule of Law ...................................................... 497 E. Institutions and Practices.................................................... 500 F . R ules .................................................................................... 504 G. Outcomes in Specific Cases ................................................. 505 III. A RESPONSE TO SEVERAL COMMON CRITIQUES ........................... 510 A. Specifying the Minimal Conditionsfor Rule of Law: Will We Know Rule of Law in China When We See It? ......... 510 B. Imposition of a Western Ideal? The Lack of Viable Alternatives to Rule of Law .................................................. 526 C. Why We Can't Simply Abandon Rule of Law Talk or Reserve Rule of Law for Liberal Democracies.................... 530 D. From Theory to Practice:Are Non-Liberal Democratic Rule of Law Systems Sustainable?....................................... 533 C ON CLU SIO N.......................................................................................... 536 t © 2002 Randall Peerenboom. * Randall Peerenboom ([email protected]) obtained a B.A. in Philosophy, M.A. in Chinese Religion, and Ph.D. in Philosophy before obtaining a J.D. from Columbia Law School. He has written extensively on Chinese law and philosophy. From 1994 to 1998, he practiced law with a major international law firm in Beijing. He currently teaches Chinese law at the University of California, Los Angeles. In addition to advising on various aspects of foreign investment in China, he often serves as an expert witness on People's Republic of China (PRC) legal issues and is Of Counsel at Yiwen Law Firm. A draft of this Article was presented at Columbia University Law School, the Sinology Department of the Katholieke Universiteit in Lueven, and at a conference on "Rule of Law and Group Identities Embedded in Asian Traditions and Cultures," held at UCLA School of Law, and at the Law and Society Conference in Budapest. I would like to thank William Al- ford, Joseph Chan, Stanley Lubman, Herbert Morris, Stephen Munzer, Arthur Rosett, Richard Steinberg, Margarett Woo, Xia Yong, and the participants at the talks at Columbia, Lueven, UCLA, and Budapest for their helpful comments. Michigan Journal of InternationalLaw [Vol. 23:471 Rule of law, like any other important political concept such as justice or equality, is an "essentially contested concept."' Yet the fact that there is room for debate about the proper interpretation of rule of law should not blind us to the broad consensus as to its core meaning and basic elements. At its most basic, rule of law refers to a system in which law is able to impose meaningful restraints on the State and individual mem- bers of the ruling elite, as captured in the rhetorically powerful if overly simplistic notions of a government of laws, the supremacy of the law, and equality of all before the law. Theories of rule of law can be divided into two general types: thin and thick. A thin theory stresses the formal or instrumental aspects of rule of law-those features that any legal system allegedly must possess to function effectively as a system of laws, regardless of whether the legal system is part of a democratic or non-democratic society, capitalist or socialist, liberal or theocratic.2 Although proponents of thin interpreta- tions of rule of law define it in slightly different ways, there is considerable common ground, with many building on or modifying Lon Fuller's influential account that laws be general, public, prospective, clear, consistent, capable of being followed, stable, and enforced.3 In contrast to thin versions, thick or substantive conceptions begin with the basic elements of a thin conception. Thick versions then incor- porate elements of political morality such as particular economic arrangements (free market capitalism, central planning, and so on), forms of government (democratic, single party socialist, and so on) or conceptions of human rights (liberal, communitarian, collectivist, "Asian Values," and so on). Thus, the liberal democratic version of rule of law incorporates free market capitalism (subject to qualifications that would allow various de- grees of "legitimate" government regulation of the market), multiparty democracy in which citizens may choose their representatives at all lev- els of government, and a liberal interpretation of human rights that gives priority to civil and political rights over economic, social, cultural, and collective or group rights. 1. Margaret Jane Radin, Reconsidering the Rule of Law, 69 B.U. L. REV. 781, 791 (1989). 2. See, e.g., JOSEPH RAZ, The Rule of Law and Its Virtue, in THE AUTHORITY OF LAW 210 (1979); Robert S. Summers, The Ideal Socio-Legal Order, I RATIO JURIS 154 (1988) [hereinafter Summers, Ideal Socio-Legal Order]; Robert S. Summers, A Formal Theory of Rule of Law, 6 RATIO JURIS 127 (1993) [hereinafter Summers, Formal Theory]; see also infra Part I. 3. Although one of the first to spell out the elements of a thin theory of rule of law, Fuller was uncomfortable with the instrumental aspects of a thin theory and its potential for abuse by authoritarian or fascist regimes, arguing that truly evil regimes would not comply with even a thin theory. LON FULLER, THE MORALITY OF LAW (1976). Spring 20021 Debating Rule of Law in China Although rule of law has ancient roots and may be traced back to Aristotle, the modern conception of rule of law is integrally related to the rise of liberal democracy in the West. Indeed, for many, "the rule of law" means a liberal democratic version of rule of law.4 In striking contrast to the many volumes on rule of law in the Western literature, relatively little work exists to clarify alternative conceptions of rule of law in other parts of the world.5 There is no reason to assume, however, that at the end of China's legal reform rainbow lie liberal democracy and a liberal democratic rule of law. The tendency to equate rule of law with liberal democratic rule of law has led some Asian commentators to portray the attempts of Western governments and international organizations such as the World Bank and International Monetary Fund (IMF) to promote rule of law in Asian countries as a form of economic, cultural, political, and legal hegemony.' Critics claim that liberal democratic rule of law is excessively individual- ist in its orientation and privileges individual autonomy and rights over duties and obligations to others, the interests of society, social solidarity, and harmony.' Significantly, although a handful of legal scholars and political scientists in China or living in exile abroad have advocated a liberal democratic rule of law, there is little support for liberal democracy, and hence a liberal democratic rule of law, among China's State 4. See, for example, the influential statement of rule of law in the report of the Commit- tee on the Legislative and the Rule of Law in Int'l Comm'n of Jurists, Rule of Law in a Free Society, in A REPORT ON THE INTERNATIONAL CONGRESS OF JURISTS 61 (New Delhi 1959). Given the many possible conceptions of rule of law, I avoid reference to "the rule of law," which suggests that there is a single type of rule of law. Alternatively, one could refer to the concept of "the rule of law," for which there are different possible conceptions. The thin theory of rule of law would define the core concept of rule of law, with the various thick theories constituting different conceptions. Yet as I argue below, from the perspective of philosophical pragmatism, how one defines a term depends on one's purposes and the consequences that attach to defining a term in a particular way. As thick and thin theories serve different purposes, I do not want to privilege thin theories over

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