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b. The consensus between political authority and spiritual or moral authority
The necessity of the rule of law is obvious, as people, including government officials, are not perfect. The rule of law acts as a rational institution and process, which checks, and controls the use of power, avoiding the caprice and arbitrariness of those people in authority.
Nevertheless, traditional political and legal theory and practice of ancient China were based on the ideal of rule of man and contrary to that common sense approach. According to Confucianism, which was the dominant political and legal theory in ancient China, the ruler should be a sage or at least be the man who had virtues deserving of his authority. The ruler should be overthrown if he does not have virtues or no longer has virtues. This was a very sophisticated theory.[33] The rule of man’s idea of Confucianism was like Plato’s idea of rule of man in his earlier time——the ideal of philosopher’s king.
However, the political and legal practice of ancient China was a different story. The reason and the result were inverted. One became a ruler not because of one’s virtue and wisdom. Rather, one had virtues and wisdom or was a sage just because one was the ruler! The ruler, no matter whatever process through which he became the ruler or the emperor, automatically had virtues and wisdom or even became a sage. He also had the authority to express the order of Heaven because he was the son of Heaven (Tian Zi). In reality, the only reason that he could do so was that he held the power and political authority. That authority legitimated itself with the help of that theory. The rule of law can not operate in such a framework, and this kind of thinking has to be overcome before the establishment of the rule of law is made possible.
III. The reality of the rule of law in China
This part argues that the rule of law is related to a society and has a very close connection with civil society and that both the ideal and the reality of the rule of law in China have to go hand in hand with the evolution of the society. It starts with an investigation into the relationship between the rule of law and society, and then deals with the development of Chinese society, especially the development of a market economy and of a democracy.
A. A dynamic connection between the rule of law and civil society and its complexity
A civil society refers to a society that is separate from the state and one in which a government does not directly administer the economy. There are also plural social forces or plural interest groups and no single authority is able to rule the others other than through the rule of law. Some examples of this could be found in Western Europe in the Middle Ages, where no single political power could rule a society entirely.[34] But the rule of law was neither fully developed nor stable at that time. The civil society has not developed until the 20th century, especially after World War Two in continental Europe. So, the rule of law is particularly a European and 20th century phenomenon.[35]
In China, the civil society is keeping up pace with the developments of a market economy and a democratic polity which are also the fundamental requirements for the realization of the rule of law and vice versa. Only this kind of society needs the rule of law.
Contemporary China is a complex and non-homogeneous society. There are vast poor and undeveloped agricultural districts in the west, as well as the rich and developed coastal areas and some big cities in China. The economic, political and cultural situations of the different areas are widely divergent. This complex and uneven social development makes the process of implementing the rule of law complicated and cumbersome. For example, it is widely agreed that the rule of law is dependent on individualism and the consciousness of the individual. However, individualism and the consciousness of the individual are hardly a reality in a clan society based on agriculture. Because clans and families are much more important than individuals, there is little call for individualism. Clans and families are still very powerful in many rural areas. The rule of law in China has a long way to go because the development of a society corresponding to the rule of law is a gradual process of evolution. The process of the rule of law has to be joined together with the evolutionary process of development within the society.[36]
B. The developments of market economy
Chinese people have done many things to transform the society since the end of 1978. There have been a lot economic reforms to facilitate the growth of a market economy. And China’s entry into the WTO will have a significant influence on the rule of law in China. For example, it will be helpful for a market economy, namely for the reform of state-owned enterprises. As they begin to face global competition, Chinese state-owned companies will have to totally restructure themselves to compete in a market economy. This provides fertile soil for the rule of law. As people will have to take care of themselves, manage their own resources and not be as dependent on the state as they did in the time of the planned economy. In keeping with this, they will have to start to rely on laws and will require the government to also abide by laws.
C. The development of the democratization at grass-roots level in rural areas
The autonomy of the people and the social units’ independence from the governments are crucial for a civil society and the rule of law. The villager’s committee is an organization of mass autonomy and the construction of it is an important part of the nation’s political reform and is significant for democratization. The construction of the villager’s committee and the autonomy of the masses started along with the economic development of the 1980s and have developed immensely, thanks to decisions of the Central Committee of the CCP and the new Organization Law of Villager’s Committee (1998). [37] 19 provinces had conducted elections, in accordance with the new Organization Law of Villager’s Committee before the end of 1999.[38] The campaign and transparency of the elections provide the foundation of grass-roots democracy and cultivate the sense of autonomy of the mass. Development of democracy and the autonomy of the mass in the countryside is a continuing process but still has a long way to go. In my observation, some places in China have experienced tensions in that development, which can be narrowed down to two factors. The first tension is between the new wishes of the mass autonomy and the old inertia of historical paternalism of the local governments (town or township). The second is between the villager’s committees whose leaders are elected by the villagers, and the system of the party’s organization, where leaders are appointed by higher-level organizations of the party (town or township). In practice the governments and the party’s organizations of the town or township hold more resources and therefore are able to influence unfairly and unlawfully the operation of the villager’s committee. The settlement of the two tensions is not only a matter of law. Political reform and economic development are also necessary.
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