0521816491 cambridge university press chinas long march toward rule of law sep 2002

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CHINA’S LONG MARCH TOWARD
RULE OF LAW

China has enjoyed considerable economic growth in recent years in
spite of an immature, albeit rapidly developing, legal system; a system
whose nature, evolution, and path of development have been little explored and poorly understood by scholars. Drawing on his legal and
business experience in China as well as his academic background in
the field, Randall Peerenboom provides a detailed analysis of China’s
legal reforms, adopting an institutional approach that considers the
possibilities for, and obstacles to, reform resulting from the current
state of development of Chinese institutions. Questioning the applicability of Western theoretical conceptions of rule of law, Peerenboom
develops a new theoretical framework. He argues that China is in transition from rule by law to a version of rule of law, though most likely
not a liberal democratic version as found in certain economically advanced countries in the West. Maintaining that law plays a key role in
China’s economic growth and is likely to play an even greater role in
the future, Peerenboom assesses reform proposals and makes his own
recommendations.
In addition to students and scholars of Chinese law, political science,
sociology, and economics, this book will interest business professionals,
policy advisors, and governmental and nongovernmental agencies, as
well as comparative legal scholars and philosophers.
r a n d a l l p eerenboom is a member of the faculty of UCLA School
of Law, where he teaches courses on Chinese law and international
human rights. His publications include Lawyers in China: Obstacles to
Independence and the Defense of Rights (1993) and Law and Morality in
Ancient China: the Silk Manuscripts of Huang-Lao (1993).

CHINA’S LONG MARCH
TOWARD RULE OF LAW
RANDALL PEERENBOOM
UCLA School of Law


  
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo
Cambridge University Press
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Published in the United States of America by Cambridge University Press, New York
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© Randall Peerenboom 2002
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relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.
First published in print format 2002
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For Lo, Shirley, and Rayne



CONTENTS

Preface

page ix

List of abbreviations

xvi

1

Introduction

2

The evolution of rule of law in China: the role of law in
historical context
27

3

Post-Mao reforms: competing conceptions of rule
of law
55

4

Rule of law and its critics

5

Retreat of the Party and the state

6

The legislative system: battling chaos

7

The judiciary: in search of independence, authority,
and competence
280

8

The legal profession: the quest for independence
and professionalism
343

9

The administrative law regime: reining in an unruly
bureaucracy
394

10

1

126
188

Rule of law and economic development

vii

239

450


viii

contents

11

Rule of law, democracy, and human rights

12

Conclusion: the future of legal reform

References
Index

599
653

513
558


PREFACE

Imagine it’s 1978, and you are Deng Xiaoping. Mao Zedong has just
died two years earlier. The Cultural Revolution is still fresh in everyone’s
minds. The economy is in shambles. The legal system has been destroyed.
The Ministry of Justice was shut down, along with the Procuracy. Only a
handful of law schools are open, though there are few professors around
to teach, and no students. No one wants to study law. There are only
2000 lawyers, many of them trained before 1949. You have just ascended
to power. What would you do?
Now imagine it’s 2003, and you are the successor to Jiang Zemin.
Twenty-some years of reforms have resulted in a proliferation of new
laws, so many that China’s lawyers, now well over 150,000 in number,
have begun to specialize. The Ministry of Justice has been reestablished,
as has the Procuracy. There are numerous law schools, churning out tens

of thousands of lawyers every year – law now being considered a hot, and
lucrative, area. For several years, the Chinese Communist Party (CCP)
has endorsed the establishment of a socialist rule-of-law state in which
the government must act in accordance with law, and the new policy was
expressly incorporated via amendment into the Constitution in 1999.
Recent years have seen the passage of a Judges Law, Lawyers Law, Procuracy Law, and Police Law, all aimed at raising the level of professionalism
of the various branches of the justice system. In addition, the Criminal
Law and Criminal Procedure Law have been amended to bring them
more into line with international standards. Administrative law reforms
have provided citizens with the right to sue the government, and they
are increasingly taking advantage of it.
Nevertheless, foreign investors complain bitterly about the lack of
rule of law; human rights activists denounce the repeated persecution
of political dissidents; citizens continue to complain about judges on
the take, notwithstanding the ongoing campaign to root out judicial
ix


x

preface

corruption. Critics note that despite the rapid development of a legal
aid system in recent years, indigent defendants often cannot secure the
service of a lawyer. In their haste to attract investment, local governments
regularly flout national laws and policies, approving projects without
authority, and offering tax breaks despite Beijing’s repeated warnings
not to. What do you do?
China’s commitment to a law-based order has deepened in the past
two decades since the end of the Cultural Revolution, the death of Mao,

and the launching of China’s reform and opening policies. At the same
time, it is widely acknowledged both at home and abroad that China
has encountered numerous problems in the realization of rule of law.
What accounts for China’s woes? Are the problems ideological? China
remains a nondemocratic socialist state dominated to a large, albeit
diminishing, extent by the CCP. Historically, socialist legal theory has
conceived of law in instrumental terms, as a tool of the “Party-state”.
Is, then, socialist rule of law an oxymoron? Setting aside the role of
the CCP for a moment, does the fault lie with China’s constitutional
structure, with the lack of the kind of separation of powers found in some
Western liberal democracies? Does China lack the proper mechanisms
for checking and balancing the CCP and the administrative branch? Or
is the problem more at the level of doctrine: does China lack important laws or are there major shortcomings in the laws that do exist?
Are there other historically contingent factors, such as China’s traditions and culture, the current level of institutional development of the
major organs of state power and the legal profession, or the impact of
the transition from central planning to a more market-based economy?
Are all of the above factors, and if so, what are the implications for
reform?
This book examines legal reforms and the efforts to establish rule of
law in China. There are a number of possible approaches one could take
to such a project. One approach would be to begin with certain predetermined theories and assumptions about rule of law, the necessary
institutions for its implementation, and the historically proven path of
other countries that have realized rule of law, and then use China to test
these predetermined theories and assumptions. One could therefore use
China to test Weber’s theory of the relation between capitalism, rational
bureaucracy, and rule of law; North’s theory of the importance of clear
property rights for economic growth; modernization theory or some


preface

xi

other variant of an evolutionary theory that predicts that legal reforms
will produce not only economic development but that legal and economic reforms will lead to political reforms and in particular the establishment of liberal democracy; globalization theories that predict that
the rise of global markets will result in the convergence of legal systems
toward rule of law and political systems toward pluralist democracies;
or cultural theories that claim rule of law is the product of Western
enlightenment traditions at odds with China’s legal traditions and thus
simply not possible, or at least less likely, in China, or alternatively, that
predict that any rule of law in China will be rule of law with Chinese
characteristics.
Such an approach has obvious advantages. China is an important test
case for general theories. It is an authoritarian socialist state rather than
a democracy. It is an Asian country rather than a Western one. It is a
large, politically significant, developing state rather than a small, politically weak developing state. Certainly the failure of China to develop
as a theory would predict would be worthy of attention. Even if the
idiosyncratic features of China would ultimately allow one to save the
theory by dismissing China as an exception to the general rule, China’s
failure to conform to the theory would deserve at minimum a rather
long footnote.
There are, however, certain costs associated with this approach. Relying in a comparative law context on predetermined theories drawn from
the experiences of very different countries is dangerous. All too often, if
one approaches the target country with too many expectations of how
a legal system is supposed to function, what the role of law should be
or where legal reforms will lead, one will end up seeing oneself in the
mirror – as Stanley Lubman accurately noted in his highly regarded
1999 study of post-Mao legal reforms, Bird in a Cage. As a result, one
will miss what is important within the Chinese legal system, and in the
process miss opportunities for exploring different roles that law might

play given China’s particular context and potentially novel institutional
arrangements or practices for achieving them.
My approach was somewhat different. I did not expressly start with
the objective of testing China against any particular theory. Rather, in
1996 Carine Defoort of Katholiek Universiteit Leuven, Belgium asked
me if I wanted to coedit a special volume of Cultural Dynamics on the
concept and implementation of order in China. After I happily agreed,


xii

preface

we narrowed the topic down to “law and order in China.” At the time, I
had been practicing law in China for several years. I was struck by the
manifestly greater reliance on law to govern China than at any time in
the past, and the increased role of law in commercial transactions and
even daily life. No longer was it the case that China had so few laws
that a reasonably diligent lawyer could master them in a fortnight. The
regulatory regime was increasingly complicated and sophisticated, with
many laws being modeled on laws from Western countries. There were
also significant changes in noncommercial areas such as criminal and
administrative law. Even more strikingly, the theoretical underpinnings
of law appeared to be changing, as China moved away from a purely
instrumental conception of law toward a conception of rule of law where
law was meant to bind both government officials and citizens alike.
Clearly, law’s role in the Chinese polity was changing, in keeping with
the dramatic changes in Chinese society, particularly since 1992. Not
surprisingly given the rapid pace of change, much of what I read about
the legal system was out of date. What I read was often not correct as

a matter of law; more importantly, most of the available accounts of
the legal system failed to adequately reflect the changes in the actual
role of law in Chinese society. Alarmingly, the dramatic theoretical shift
toward rule of law and its potential political significance attracted little
notice in the Western press and academic literature. When the higher
profile of rule of law was mentioned, it was generally dismissed as mere
rhetoric. With some notable exceptions, the Western press continued to
focus on human rights violations; meanwhile legal scholars and other
academics, again with some notable exceptions, emphasized the many
deficiencies of the legal system, and the very different social, cultural,
political, and economic contexts in which law operated. Undeniably, the
legal system suffers from a number of shortcomings, and no one would
mistake China for Kansas. Nevertheless, the existing accounts seemed
unduly dismissive of the remarkable progress that had been achieved in
the relatively short period of twenty-odd years.
I wanted to begin therefore with a thick description (in the Geertzian
sense) of what was actually happening on the ground. Accordingly, I
began to jot down things that struck me as unusual, either because they
represented a significant change from the way law functioned in the
Imperial or Mao period, or because they were at odds with at least my
initial conception of a law-based order.


preface

xiii

A pattern soon emerged. Many of the problems that I identified were
“technical” in nature. They fell easily into categories typically cited as
part of a “thin” or procedural rule of law, discussed more fully in the

following chapters. For instance, whereas a thin rule of law requires
procedural rules for law-making and laws must be made by an entity
with the authority to make laws in accordance with such rules to be
valid, China’s legislative system was in disarray. A wide variety of entities
had vaguely defined powers to issue various types of legislation whose
legal effect was often unclear at best. Similarly, whereas a thin rule of
law requires publicly promulgated laws, knowable in advance, that are
generally prospective rather than retroactive, relatively clear, consistent,
and stable, laws in China were often vague, inconsistent internally and
with other laws, and subject to rapid change. To further complicate
matters, there was often a wide gap between laws on the books and
actual practice. Even when laws were implemented, there were often
questions as to the fairness of the way in which they were implemented.
Having taken note of the problems, the next task was to explain them,
and to explore their causes. As we shall see, the story that emerges is a
complicated one in that there are often multiple, overlapping causes
for the dysfunctional features of the PRC legal system. Moreover, in
explaining the obstacles to realization of even a thin rule of law in
China, it quickly became apparent that I would have to address issues
that exceed the boundaries of a thin theory of rule of law – including
the social, cultural, political, and economic contexts in which the legal
system is embedded.
Put differently, thick description by itself is insufficient. In the end,
one cannot avoid confronting the kinds of theoretical issues mentioned
previously, such as the relationship between rule of law and economic
development; the legal system’s role in enforcing property rights in order to ensure economic growth; the relationship between rule of law
and democracy and human rights; and the influence of Chinese culture
and traditions on the legal system. Yet in theorizing about the role and
rule of law in China, we need to avoid simply imposing concepts and
categories developed in light of the experiences of other countries. We

cannot assume that what works for economically advanced, Western liberal democracies will necessarily work for China. In theorizing about the
future of legal reforms in China and the form of rule of law most likely
to take hold and flourish in China’s different soil, we need to bear in


xiv

preface

mind the differences in political and economic institutions, differences
in the level of development, and differences in cultural practices and
values. We need to keep our minds open to the possibility that China
may develop an alternative to liberal democratic rule of law – a form of
rule of law with Chinese characteristics, as it were.
At the same time, we need to avoid the opposite mistake – that is,
treating China as so different from other states that none of the same
rules and assumptions apply. As a result of economic reforms, China
increasingly has a market-oriented economy. As a result of legal reforms,
China has passed many laws and established institutions similar to those
in other countries. As result of its policy of opening to the outside world,
China’s citizens now enjoy a wide variety of cultural products enjoyed
by others around the world. In other words, rule of law with Chinese
characteristics is still rule of law.
Research for this book has been supported by grants from the Smith
Richardson Foundation, UCLA Academic Senate, UCLA International
Studies and Overseas Program, and UCLA School of Law. Various draft
chapters and articles from which parts of this book have been drawn
were presented at conferences and colloquia at the Columbia Law School,
Harvard Law School, City University of Hong Kong, Hong Kong University, Van Vallenhoven Institute at Universiteit Leiden, Katholiek Universiteit in Leuven, Southwestern University of Political and Legal Science
in Wuhan, UCLA Law School, University of Washington Law School,

and Yale Law School. I thank all of those attending for their insights
and comments. A “salon” organized by Mike Dowdle in Hong Kong was
most enjoyable and informative. I am grateful to all of the attendees
for the lively debates and constructive criticisms, including Jean-Piere
Cabestan, Albert Chen, Carol Jones, Fu Hualing, Lin Feng, Song Bing,
Lutz-Christian Wolf, Wang Shaoguang, and Yu Xingzhong. I am also
grateful to many individuals who have read and commented on parts or
all of the draft manuscript or earlier versions of chapters, or with whom
I have had discussions on these topics, including Bill Alford, Joseph
Chan, Don Clarke, Sean Cooney, Mike Dowdle, Paul Gewirtz, Fang
Shirong, Hu Yunteng, Jiang Mingan, Liang Zhiping, Stanley Lubman,
Herb Morris, Steve Munzer, Arthur Rosett, Richard Steinberg, Wang
Liming, Wang Xixin, Calla Wiemer, Margaret Woo, Xia Yong, and Shirley
Xu. I also thank several anonymous reviewers for their helpful suggestions. Needless to say, none of these individuals bears any responsibility


preface

xv

for the mistakes herein, or necessarily shares my views. In many cases,
several rounds of edifying conversation were most helpful in clarifying
our positions and bringing the differences in our views into sharper
relief, without resulting in either side being persuaded by the other’s arguments. Yet the process was invariably both immensely enjoyable and
intellectually stimulating, at least for me.
Our superb library team has been invaluable in locating materials.
Chen Xia deserves special mention for her efforts in tracking down
some obscure Chinese sources. I was also fortunate to work with two
very qualified research assistants, Tim Fitzpatrick and Heather Stern.
This book draws in places on previously published works, including Lawyers in China: Obstacles to Independence and the Defense of Rights

(Lawyers’ Committee on Human Rights, 1998); “Globalization, Path
Dependency and the Limits of Law: Administrative Law Reform and
Rule of Law in the People’s Republic of China” (Berkeley Journal of
International Law, 2001); “Human Rights and Asian Values: the Limits
of Universalism,” China Review International (2000); “The Limits of
Irony: Rorty and the China Challenge,” Philosophy East & West 50: 56–89
(2000); “Ruling the Country in Accordance with Law: Reflections on the
Rule and Role of Law in China,” Cultural Dynamics 11: 315–51 (1999).
My thanks to the publishers for permission to quote from these works.


ABBREVIATIONS

ALL
ARL
ARR
ASL
BERI
BGB
BPC
CASS
CCP
CCTV
CIETAC
CIM
CRIT(s)
CSRC
DPP
FBIS
FDI

FIE
GATT
GDP
HPC
ICCPR
ICRG
IPC
IMF
JV(s)
MFN
MOFTEC

Administrative Litigation Law
Administrative Reconsideration Law
Administrative Reconsideration Regulations
Administrative Supervision Law
Business Environmental Risk Intelligence
Bu¨ rgerliches Gesetzbuch (German Civil Code)
Basic People’s Courts
Chinese Academy of Social Sciences
Chinese Communist Party
China Central Television
Chinese International Economic and Trade Arbitration
Commission
contract-intensive money
Critical Legal Studies Scholar(s)
China Securities Regulatory Commission
Democratic Progressive Party
Foreign Broadcast Information Service
foreign direct investment

foreign-invested enterprise(s)
General Agreement on Tariffs and Trade?
gross domestic product
High People’s Court
International Covenant on Civil and Political Rights
International Country Risk Guide
Intermediate People’s Court
International Monetary Fund
joint venture(s)
Most Favored Nation
Ministry of Foreign Trade and Economic Co-operation
xvi


list of abbreviations

MOJ
NGO(s)
NPC
NPCSC
NSC
OECD
PLC
PRC
SAFE
SAIC
SOE(s)
SPC
SPP
TLSS

TVE(s)
UCLA
UDHR
UN
USTR
VAT
WFOE(s)
WTO

Ministry of Justice
nongovernmental organization(s)
National People’s Congress
National People’s Congress Standing Committee
National Seed Group Corporation
Organization for Economic Co-operation and
Development
Political–Legal Committee
People’s Republic of China
State Administration of Foreign Exchange
State Administration of Industry and Commerce
state-owned enterprise(s)
Supreme People’s Court
Supreme People’s Procuratorate
township legal services stations
township and village enterprise(s)
University of California at Los Angeles
Universal Declaration of Human Rights
United Nations
United States Trade Representative
value-added tax

wholly foreign-owned enterprise(s)
World Trade Organization

xvii



1
Introduction

The hallmarks of modernity are a market economy, democracy, human
rights, and rule of law. Not surprisingly, China first began to grapple with
the need to reform the legal system in earnest during the Qing dynasty as
part of its attempt to come to grips with modernity. Although those early
reforms could not gain a foothold in the chaotic civil war conditions of
the Republican era, and law subsequently took a back seat to politics
during much of the Mao period, legal reforms and rule of law again
became a hot issue when China emerged from the Cultural Revolution
in the late 1970s and Deng Xiaoping announced his ambitious platform
to modernize China. Twenty years of economic and legal reforms have
only served to raise the temperature.
Nowadays, it is virtually impossible to open any Chinese newspaper
without seeing reference to rule of law. Signs painted on buildings in
the countryside proclaim the need to act in accordance with law. Flyers
posted in cities urge passersby to steadfastly uphold the law. Scholars
have produced literally hundreds of books and articles on the topic
in the last ten years. And in 1999, the Constitution was amended to
expressly provide for the establishment of a socialist rule-of-law state.
On the other hand, the initial reaction of many members of the general
public to any attempt to link rule of law to China is one of shock and

amusement. The less informed genuinely if bemusedly still question
whether China even has laws. Lamenting the absence of rule of law,
foreign investors and human rights activists keep up a steady drum
beat calling for its realization. Meanwhile, skeptical legal scholars and
longtime China observers query whether China actually is, or should
be, moving toward rule of law. Some critics dismiss legal reforms as part
of a sinister plot to hoodwink foreigners into investing in China or a
jaded attempt by senior leaders to gain legitimacy abroad while actually
just strengthening the legal system to forge a better tool of repression.
1


2

introduction

A few minority voices, all but drowned out in the din over the wonders
of rule of law, suggest that the economy is doing fine without it, and
hence question whether China really needs it. Ironically, although most
in China proudly chant the rule-of-law mantra, many Western legal
scholars and political scientists dismiss it as a meaningless slogan –
“just another one of those self-congratulatory rhetorical devices that
grace the public utterances of Anglo-American politicians.”1 Worse yet,
some condemn it as a mask for oppression and injustice.2
Notwithstanding such reservations about its value and the selfproclaimed failure of earlier efforts to transplant Western liberal democracy and rule of law to developing countries in the 1960s and 1970s,
multinational agencies continue to pour millions of dollars into legal
reform programs in China.3 If anything, Russia’s collapse and the Asian
financial crisis have only increased faith in the importance of rule of
law and opened the funding floodgates even wider. Bilateral programs
also abound. In 1997, for instance, Presidents Clinton and Jiang signed

a broad-ranging agreement widely touted as a rule-of-law initiative in
the Western press. Not to be outdone, the EU entered into a Legal and
Judicial Cooperation Program in 1998.4
What is one to make of such wildly divergent perspectives? Is China
in the process of establishing rule of law? If so, is that good or bad? What
has prevented China from realizing rule of law? Assuming China does
implement rule of law, will rule of law in China differ from rule of law in
Western liberal democracies? This book attempts to sort through these
and related issues, beginning with the basic question of the meaning of
rule of law.

What is rule of law?
Rule of law, like other important political concepts such as justice and
equality, is an “essentially contested concept.”5 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 members 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.


introduction

3

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 nondemocratic society, capitalist or socialist, liberal or theocratic. 6 Although proponents of thin
interpretations 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.7
In contrast to thin versions, thick or substantive conceptions begin
with the basic elements of a thin concept of rule of law but then incorporate elements of political morality such as particular economic
arrangements (free-market capitalism, central planning, etc.), forms of
government (democratic, single party socialism, etc.), or conceptions
of human rights (liberal, communitarian, “Asian values,” etc.). Thick
conceptions of rule of law can be further subdivided according to the
particular substantive elements that are favored.
Thus, the Liberal Democratic version of rule of law incorporates free
market capitalism (subject to qualifications that would allow various degrees of “legitimate” government regulation of the market), multiparty
democracy in which citizens may choose their representatives at all levels
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.8
In contrast, Jiang Zemin and other Statist Socialists endorse a statecentered socialist rule of law defined by, inter alia, a socialist form
of economy, which in today’s China means an increasingly marketbased economy but one in which public ownership still plays a somewhat larger role than in other market economies; a nondemocratic
system in which the Party plays a leading role; and an interpretation
of rights that emphasizes stability, collective rights over individual rights,
and subsistence as the basic right rather than civil and political rights.
There is also support for various forms of rule of law that fall between the Statist Socialism type championed by Jiang Zemin and other
central leaders and the Liberal Democratic version. For example, there
is some support for a democratic but nonliberal (New Confucian)
Communitarian variant built on market capitalism, perhaps with a


4

introduction

somewhat greater degree of government intervention than in the liberal version;9 some genuine form of multiparty democracy in which
citizens choose their representatives at all levels of government; plus an
“Asian values” or communitarian interpretation of rights that attaches
relatively greater weight to the interests of the majority and collective
rights as opposed to the civil and political rights of individuals.10
Another variant is a Neoauthoritarian or Soft Authoritarian form
of rule of law that, like the Communitarian version, rejects a liberal
interpretation of rights but, unlike its Communitarian cousin, also rejects democracy. Whereas Communitarians adopt a genuine multiparty
democracy in which citizens choose their representatives at all levels of
government, Neoauthoritarians permit democracy only at lower levels
of government or not at all.11 For instance, Pan Wei, a prominent Beijing
University political scientist, has advocated a “consultative rule of law”
that eschews democracy in favor of single party rule, albeit with a redefined role for the Party, and more extensive, but still limited, freedoms
of speech, press, assembly, and association. 12
A full elaboration of any of these types requires a more detailed account of the purposes or goals the regime is intended to serve and its
institutions, practices, rules, and outcomes in particular cases, as will be
provided in Chapter 3. Nevertheless, this preliminary sketch is sufficient to make the following points. First, despite considerable variation,
all forms accept the basic benchmark that law must impose meaningful limits on the ruler and all are compatible with a thin rule of law.
Put differently, any thick conception of rule of law must meet the more
minimal threshold criteria of a thin theory. Predictably, as legal reforms
have progressed in China, the legal system has converged in many respects with the legal systems of well-developed countries; and it is likely
to continue to converge in the future.
Second, at the same time, there will inevitably be some variations
in rule-of-law regimes even with respect to the basic requirements of a
thin theory due to the context in which they are embedded. For example, there may be differences in the way disputes are handled, with some
systems relying more on the formal legal system to enforce property
rights and resolve social conflicts and other systems relying more on informal and nonlegal means of protecting property rights and resolving

social conflicts. Similarly, administrative law regimes will differ in the


introduction

5

degree of discretion afforded government officials and the mechanisms
for preventing abuse of discretion. Judicial independence will also differ
in degree and in the institutional arrangements and practices to achieve
it.13 And differences in fundamental normative values will lead to divergent rules and outcomes. Hence signs of both divergence from and
convergence with the legal systems of well-developed countries are to
be expected. Indeed, whether one finds convergence or divergence depends to a large extent on the particular indicators that one chooses, the
time frame, and the degree of abstraction or focus. The closer one looks,
the more likely one is to find divergence. But that is a natural result of
narrowing the focus.
Third, when claiming that China lacks rule of law, many Western commentators mean that China lacks the Liberal Democratic form found
primarily in modern Western states with a well-developed market economy. Although some citizens, legal scholars, and political scientists in
China or living 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 state leaders, legal scholars, intellectuals, or
the general public.14 Accordingly, if we are to understand the likely path
of development of China’s system, and the reasons for differences in its
institutions, rules, practices, and outcomes, we need to rethink rule of
law. We need to theorize rule of law in ways that do not assume a liberal
democratic framework, and explore alternative conceptions of rule of
law that are consistent with China’s own circumstances. While the three
alternatives to a Liberal Democratic rule of law each differ in significant
ways – particularly with respect to the role of law as a means of strengthening the state versus limiting the state – they nevertheless share many
features that set them apart from their liberal democratic counterpart.
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 in Chapters 3
and 12, 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