China and The Fallacies of Rule of Law': Heretical Laments

HERETICAL LAMENTS
China and the Fallacies of ‘Rule of Law’
MICHAEL W. DOWDLE
Columbia University School of Law, New York
ABSTRACT
While the general consensus is that there is no real rule of law in China, we
actually have a great deal of difficulty explaining why. This article seeks to
show that none of the arguments commonly advanced as to why there is no
rule of law in China are particularly compelling. Some critiques claim that
China’s rule-of-law insufficiencies are due to deficiencies in her conceptual-
ization of law. But these critiques either depend on false conflations of how
individual and collective values work, or on very controversial claims about
western conceptions of law, or otherwise identify distinctions that have no
real bearing on the development of China’s legal system. Other critiques
argue that China’s failure to achieve or enjoy rule of law is due to particular
deficiencies in her legal system. But the structural features upon which these
critiques focus seem inappropriate for a country in China’s present stage of
development. One thinks, all in all, that rule-of-law theorists simply expect
too much from law. The question we should be asking is not ‘is there rule of
law in China?’, but rather ‘should there be rule of law in China as we cur-
rently conceive of that concept?’ At least for the present state of China’s
development, the answer is quite possibly no.
Key Words China conceptions of law law and society legal devel-
opment rule of law
Everyone agrees that there is no real rule of law in China (see e.g.
Alford, 1999; Hintzen, 1999; Peerenboom, 1999). But we have a great
deal of difficulty explaining why. This article seeks to show that none of
the arguments commonly advanced as to why there is no rule of law in
China are particularly compelling. Whatever the problems are with law
in China, they are not due to any of the factors rule-of-law analyses like
to point to.
Critiques of China’s legal system are of two general kinds. Part 1 will
look at those critiques that claim that China’s rule-of-law insufficiencies are
Cultural Dynamics 11(3): 287–314. [0921–3740 (199911) 11:3; 287–314; 010175]

Copyright © 1999 SAGE Publications (London, Thousand Oaks, CA and New Delhi)
288 Cultural Dynamics 11(3)
due to deficiencies in her conceptualization of law. We will find that these

critiques either depend on false conflations of how individual and collective
values work, or on very controversial claims about western conceptions of
law, or otherwise identify distinctions that have no real bearing on the
development of China’s legal system. Part 2 will look at those critiques that
argue that China’s failure to achieve or enjoy rule of law is due to particular
deficiencies in her legal system. There, we will find that the structural fea-
tures upon which these critiques focus seem inappropriate for a country in
China’s present stage of development.
None of this is to claim that there is in fact rule of law in China. Rather,
it is to show that we are really asking the wrong question. The question we
should be asking is not ‘is there rule of law in China?’, but rather ‘should
there be rule of law in China as we currently conceive of that concept?’ At
least for the present state of China’s development, the answer is quite
possibly no.
1. Conceptual Deficiencies
Many commentators attribute China’s failure to develop a rule-of-law state

to alleged deficiencies in China’s conception of law. Two kinds of possible
conceptual deficiency have been identified. The liberal critique argues that
rule of law is founded on a certain relationship between legal legitimacy
and moral values that China does not share. The instrumentalist critique
argues that China’s conception of law does not afford law the appropriate
form and/or degree of normative respect.
A. Liberal Critiques
Rule of law is frequently associated with legal liberalism. Liberalism
holds that the normative reach of governmental and political power
should be constrained by moral values. There are two ways of conceptu-
alizing the demands of liberalism. Substantive conceptualizations
associate liberalism with particular moral values, such as free speech and
individual dignity. Critiques founded on this conceptualization argue that
the reason there is no rule of law in China is because China does not
respect these liberal values. Procedural conceptualizations of liberalism
do not demand that a polity respect any particular set of moral values,
but rather only that legal decisions and actions must give proper and par-
ticular account to the moral autonomy of its citizenry. Critiques drawn
from this conceptualization argue that there is no rule of law in China
either because China’s legal system denies the validity of individual
moral reasoning, or because China does not recognize a connection
between law and morality.
Dowdle: Heretical Laments 289
The ‘liberal values’ argument. One popular explanation for why China
lacks true rule of law argues that true rule of law requires society to
respect particular liberal values that China does not recognize. These
include values like democratic pluralism, individualism, and political free-
doms (Huntington, 1996; Peerenboom, 1995). This, it is claimed, is incom-
patible with rule of law. Such arguments are generally founded on a false
conflation of social values and individual values. Both with regards to
moral behavior (Rawls, 1972: 20–1, 46–50) and economic behavior
(Cooter and Ulen, 1988: 1), individual values are commonly presumed to
be ‘rational’, meaning that to the extent a person prefers value A over
value B in one particular situation, they will prefer value A over value B
in every situation. This rationality allows us to deduce an individual’s par-
ticular values simply from their behavior. If I see a woman steal bread in
order to feed her hungry children, then I can reasonably conclude that she
will consistently value the preservation of her family over the preservation
of another’s property rights. Of course, there may be mitigating circum-
stances of which I am not yet aware. But I am generally confident that,
because her preference orderings are rational and universal, a rational
ordering will quickly reveal itself through continued observation of her
behavior.
Arguments that attribute particular rational value orderings to a par-
ticular culture generally assume that these orderings can be deduced from
cultural behavior in the same way that individual values can be deduced
from individual behavior. Peerenboom (1999) notes that ‘many would
argue that . . . in practice China continues to endorse an instrumental rule of
law’). But in fact, consistent instances of societal behavior do not necess-
arily reveal cultural values, because collective decision-making is not
necessarily rational in the way that individual decision-making is presumed
to be. The content of collective decisions is frequently determined, not by
a consistent set of value preferences, but simply by the particulars of the
decision-making process. In some cases, a collective choice can be changed
simply by changing the order in which the options are presented to the
group (Arrow, 1963), or by changing the path of information flows within
the decision-making organization (Stinchcombe, 1990), or by changing the
penalties that individuals might expect to incur from being on the wrong
side of a position (MacKuan, 1990). This can be true even where there is a
clear majoritarian preference for a particular value.
Thus, we cannot extrapolate rational orders of cultural values from a
particular set of instances of seemingly consistent societal behavior. The
fact, for example, that a particular society evinces some preference for com-
munitarian over individual interests in some instances does not mean that
particular preference ordering governs all aspects of social behavior. Thus,
Peerenboom (1995) and others are able to find ‘communitarian’ priorities
in traditional Chinese society while De Bary (1991), Sen (1997), and
Svensson (1996) are able to find individualist priorities in traditional

Chinese society. It is not necessarily the case that one of these scholars must
be wrong. More likely, this seeming contradiction suggests that the
ordering of individual vis-a-vis communal well-being was not rationalized
in the way that the individualist/communitarian debate presumes it to be.
Indeed, attempts to attribute particular value orderings to particular cul-
tures frequently have a strongly tautological ring about them (Appiah,
1996; Putnam, 1993: 114–15; Said, 1978). For example, cultures that are
commonly considered ‘communitarian’—meaning that they value com-
munity over individual autonomy—frequently evince fewer social groups, a
smaller range of social networks, and significantly less social cooperation
than ‘individualistic’ cultures (Putnam, 1993: 114–15). A number of
Chinese intellectuals writing at the beginning of the 20th century dispar-
aged Chinese culture for being too individualistic for these very reasons
(Svensson, 1996: 148–9). ‘Communitarian’ societies also tend to evince sig-
nificantly more corruption (Putnam, 1993: 146–8) an activity that results
when public actors place their own, personal interests ahead of the interests
of the society they are supposed to serve (Gambetta, 1998).
Of course, not every collection of social values is irrationally ordered
(see e.g. Inglehart, 1997, finding some rational preference orderings within
societies). But because of the possibility of irrationality, such rationality as
does exist is best evinced by actually polling the society. Few if any critiques
of China’s value deficiencies vis-a-vis rule of law are founded on any such
surveys. And in fact, the few surveys of comparative cultural values that
have been conducted find that China’s value preferences are largely con-
sistent with those found in other nations of her particular level of economic
and industrial development (Inglehart, 1997). In a related vein, a survey by
Nathan and Shi (1993) concludes that Chinese cultural values and western
cultural values are not as inconsistent as the traditional dichotomy between
liberal and illiberal cultures would suggest. In one way, this can be seen as
confirming the critique from liberal values: liberal values enjoy greatest
prominence in the more economically and industrially developed coun-
tries, and thus exert less social significance in China than in those devel-
oped countries that commonly serve as the paradigms for rule of law
(Inglehart, 1997). But it also suggests that such measures of ‘rule of law’ are
irrelevant, or at best trivial, when applied to underdeveloped countries like
China.
Some might suspect that I am confusing the cart with the horse: that
liberal values are still relevant even in lesser developed countries because
these values are what drive economic, political, and social development
(Human Rights Watch, 1992). But this is simply contrary to the evidence.
Empirical studies are quite consistent in finding that economic develop-
ment precedes liberal shifts in cultural values (Burkhart and Lewis-Beck,
1994; see generally Dowdle, 1999: 62–4, 68–9). Indeed, the appearance of
societal respect for liberal virtues is most commonly accompanied by a

marked reduction in rate of economic growth (Inglehart, 1997: 74–8).
The legitimacy argument. Another conceptualization of liberalism focuses

not on particular content of societal values but on the sources of political
and legal authority. It claims that, independent of the particular values a
society may hold, law’s authority is properly derived from the law’s corre-
lation with the society’s underlying political moral values (Dworkin, 1978).
Critiques drawn from this conceptualization argue that China does not rec-
ognize any inherent relationship between the law and political morality,
that China sees law purely as a positivist tool for social engineering.
It is wise to regard this claim with a healthy dose of suspicion, however.
The notion that the law should be informed by concerns for fairness and
justice is well established in Chinese intellectual history (Peerenboom,
1993). I know of no instance in which a modern Chinese intellectual has
expressly refuted this claim. Thus, if this critique is to be advanced, it must
be refined. One way to do so is by arguing that merely recognizing the
linkage between the law and some form of fairness and justice is not
enough: that one’s conception of the moral parameters that define fairness
and justice within the legal system must be informed by a recognition that
people are morally autonomous creatures (Dworkin, 1978). Many argue
that China’s notion of fairness and justice does not reflect this individual
autonomy.
But, again, I know of no modern instance in which an influential Chinese
figure expressly disavows individual moral autonomy. On the other hand,
there are many instances in which Chinese writers treat individual moral
autonomy as an accepted element of common sense (De Bary, 1991;
Schwartz, 1985; Svensson, 1996: 115–16).1 Moreover, Ronald Inglehart’s
survey of Chinese attitudes (1997: 93) reveals a very strong preference for
rational/secular form of authority (as distinguished from traditional auth-
ority), and this preference is simply inconsistent with a view that denies
individual moral autonomy (Dworkin, 1978).
As noted elsewhere in this volume by Randall Peerenboom (1999),
claims that Chinese culture does not recognize moral autonomy are most
commonly extrapolated from China’s political behavior, principally her
authoritarian political practices. But the relationship between China’s
authoritarian traditions and her normative conceptions regarding indi-
vidual moral autonomy are very ambiguous. Authoritarian practice is often
found in cultures that recognize individual moral autonomy, including pre-
1945 Germany and pre-1815 France. Authoritarianism can also be sup-
ported by arguments that recognize individual moral autonomy (see e.g.
Hobbes, 1996). There is no justification for extrapolating a cultural antago-
nism to the notion of individual moral autonomy simply from a tradition of
authoritarianism.
The other way in which this version of the liberal critique can be refined
is by arguing that rule of law requires that the legitimacy of law be informed
by the polity’s moral understandings, and that China does not evince a con-
ceptual connection between the legitimate demands of law and the
demands of political morality. But while a proper appreciation for the
moral basis of legal authority may indeed facilitate rule of law, it is by no
means an essential component of rule of law. Many of the jurists most influ-
ential in the development of western rule-of-law systems have disputed the
notion that such systems are necessarily founded on moral values. These
include such persons as Jean-Etienne-Marie Portalis (a founding figure
behind the French civil code), Karl Savigny (a founding figure behind the
German civil code), Oliver Wendell Holmes, Jr (perhaps the most famous
of American jurists), Hans Kelsen (a founding figure in the development of
civil-law constitutionalism), H.L.A. Hart (the common law’s most influen-
tial legal philosopher of the 20th century), and Max Weber (a defining
figure in the study of legal institutions). Indeed, such ‘legal positivism’ may
actually be a more defining feature of the whole of contemporary western
legal tradition than is liberalism (Merryman, 1985: 19–20).
We might also note that Hart and Weber are also two of the most influ-
ential authorities in people’s attempts to identify the conceptual essence of
rule of law. If the positivist visions of Hart and Weber are sufficient to allow
them to adequately envision rule-of-law systems, then so too should be
whatever positivist visions inform China’s conceptions of law.
B. Instrumentalist Critiques
Instrumentalist2 critiques focus on the quality of the law’s authority, rather
than on the source or focus of that authority. They argue that, even if
China’s conception of law is adequate in terms of the law’s essential char-
acter, it is nevertheless inadequate in terms of its conceptualization of the
proper force of legal authority vis-a-vis competing interests. As with the
liberal critiques, these critiques also come in two general flavors. One
focuses on the law’s authority to trump competing political interests. The
other focuses on the law’s ability to overcome competing personal interests.
Law vs other forms of political authority. Many argue that rule of law rec-
ognizes a distinction between legal authority and political authority, and
requires the former to trump the latter. In China, however, the opposite is
said to be true—the authority of law is subordinated (or at least subordi-
nated too frequently) to political interests. Proponents support this critique
by reference to the role the Chinese Communist Party (CCP) plays in
China’s political/legal environment. They argue that a true rule of law in
China would demand that the political authority of the CCP be subordi-
nated to that of the law, but that in fact the CCP’s authority is superior to
that of the law. To support the latter part of this assertion, they point to a
number of observations about China’s legal and constitutional system:
namely, that the Chinese constitution itself assigns a ‘leading role’ to the
CCP; that the CCP is immune from administrative litigation suit; that the
CCP oversees the activities of the courts and legislature, both by dictating
higher level personnel placements (through the nomenklatura system) and
by monitoring and sometimes even participating in the work that emanates
from these bodies; and that the CCP frequently uses policy initiatives to
perform tasks which seem to fall more properly within the domain of the
legal system, such as disciplining corrupt cadres.
Before examining the specifics of this argument, however, I first want to
clear the underbrush a bit. We need to bear in mind that here we are only
concerned with the normative implications of the practices we are going to
examine. (We will address the practical implications in Part 2.) As noted
above, we cannot extrapolate directly from some particular set of social
practice to some normative cultural vision. Even in developed legal
systems, systemic distortions frequently cause our actual practices to
diverge from our normative ideals. For this reason, if one is to show that
China’s conception of law is instrumentalist, one needs to locate such
instrumentalism at least in part in China’s normative explanations of her
legal and political practices, not simply in the fact of the practices them-
selves.
Along these lines, the single most crucial piece of evidence regarding
China’s normative conception of law actually points away from the instru-
mentalist hypothesis. Public discussions in China are unanimous in finding
that as a normative matter CCP activities must be conducted in accordance
with the law (Hintzen, 1999; Peerenboom, 1999). Indeed, Jiang Zemin’s
acknowledgement of this position confirms that this position is now settled
canon even within the CCP itself (Hintzen, 1999).3 The claim that the CCP
must conform its activities to the law is also enshrined in the CCP’s Party
Constitution (Pu, 1994). Of course, this particular priority may be more
theory than practice at present, but it is precisely the theory that we are
here concerned with.
Proponents of China’s instrumentalist conception tend to dismiss this
expressed normative position as the mere product of CCP propaganda,
designed to elicit support for an increasingly unpopular political system.
But there are two problems with this objection. First, it is of questionable
relevance. Even if the CCP’s claims in this regard are the product of bad
faith, the fact that they would resort to such claims at all is strong evidence
that such claims have strong normative appeal.
More importantly, it does not conform to the evidence. We cannot
dismiss these normative articulation as merely propaganda, because they are
in fact backed up by many incidents of political/legal behavior that are best
explained as evincing a normative priority of law. In 1993, for example,
China’s national parliament, the National People’s Congress (NPC),

refused to accept a draft constitutional amendment tendered directly by the
CCP, on the grounds that the CCP lacked legal standing to tender such an
amendment (Chen, 1994). A CCP that is normatively above the law should
not need to conform to such petty legal proceduralisms. Similarly, in 1983,
the NPC Standing Committee voted down a draft Maritime Traffic Safety
Law submitted to it by the State Council. (The commonly articulated claim
that the NPC has never voted down a bill submitted to it is false.) Originally,
the NPC leadership was simply going to resubmit the bill for vote again at
the next session, but a number of delegates pointed out that this was against
the NPC’s procedural rules. At that point, the leadership properly treated
the bill as having been rejected by the NPC (Zhang, 1994; both of these
cases are also discussed in Dowdle, 1997). In both cases, the instrumentalist
hypothesis suggests that the NPC/CCP leadership should have just ignored
procedural red tape and advanced directly to the particular outcome it
sought. The fact that it did not do so suggests that Chinese conceptualiza-
tions of law are not as simple as that hypothesis implies.
The normative supremacy of legal and constitutional authority is also
evinced by the fact that NPC leaders and others in and affiliated with the
NPC have consistently appealed to constitutionalism and rule of law in
their increasingly successful attempts to wrest more power for the NPC
from the CCP (Peng, 1984; see generally Dowdle, 1997: 22–3). Such argu-
ments would be meaningless unless a significant portion of the CCP felt
itself to be bound by these normative ideals. As I discuss in Dowdle (1997),
much in the NPC’s recent political development strongly suggests an emer-
gent normative constitutionalism in Chinese legal and political culture.
Similarly, the passage of the legal aid provisions in both the Lawyer’s Law
and the 1996 amendments to the Criminal Procedure Code helped over-
come opposition within the CCP to the development of a national legal aid
system (Luo, 1997: 5), and changes in the PRC Constitution and the con-
current passage of the Villagers’ Committee Law helped overcome opposi-
tion in the CCP to efforts to free an increasing number of rural village (and
now county) elections from CCP control (Epstein, 1996). That new legal
provisions can have such influence suggests that a substantial number of
CCP members must believe that new law changes the normative shape of
the CCP’s prerogatives.
The ability of legal authority to significantly limit the CCP’s own auth-
ority is also evinced by the increased lobbying of the NPC. (The examples
below are also discussed and documented in Dowdle, 1997.) Various pol-
itical interests that could easily prevail in a party forum have nevertheless
devoted significant resources and energies to lobbying the NPC directly.
The most overt example of this is the Public Security Bureau’s unsuccessful
lobbying efforts with regards to the 1996 amendments to the Criminal
Procedure Law, but other powerful interests, primarily regional and indus-
trial interests, also find it useful to spend significant effort lobbying (or
otherwise defending themselves in) the NPC (see generally Dowdle, 1997).
Indeed, in recent years lobbying of NPC delegates and officials by both
State Council organs and by the CCP party factions has become so perva-
sive that in 1995 the State Council and CCP issued internal rules detailing
how and when their respective members should lobby the NPC. These rules
were designed to help both the CCP and the State Council better lobby
their own interests within the NPC (China Daily, 1996). The best expla-
nation as to why the CCP or political interests that are dominant within the
CCP should show such concern for the lobbying of the NPC is that the
NPC’s legal/constitutional authority can somehow impede the reach of
the CCP/State Council’s political authority, an explanation that is inconsis-
tent with the instrumentalist critique. (It is also noteworthy that the CCP
has not simply forbidden such lobbying, as it did several times in the 1980s.)
Proponents of the instrumentalist critique argue that, despite whatever
normative claims the CCP or anyone else in China makes about legal auth-
ority, these claims are in fact contradicted by the various practices of the
legal/constitutional system noted above. But we have seen how normative
positions cannot be deduced from practice alone. They must be deduced
from the normative explanations for these practices. And as we shall pres-
ently see, all of these practices are supported by normative explanations
that are in fact wholly consistent with a notion that legal authority is to be
supreme to all other forms of political authority, including that which issues
from the CCP. Of course, this does not necessarily mean that any of these
normative justifications are the principal motors behind the perseverance
of these practices, or that these practices completely conform to the
demands of their respective justifications, or that these practices are as suc-
cessful at promoting rule of law as their respective normative justifications
might suggest. But it is sufficient to show that none of these practices
necessarily imply or evince an instrumentalist conception of legal authority
vis-a-vis that of the CCP.
In fact, many of the practices pointed to by proponents of the instru-
mentalist critique are the same as can be found in many mature constitu-
tional systems. Majority parties in most mature constitutional systems
supervise if not control legislative drafting. Such parties also operate a
nomenklatura-like system that determines (or strongly influences) most of
the country’s governmental and quasi-NGO (GONGO) personnel place-
ments. At least in the US, even judicial placements also have a strong party
flavor to them. While many have complained of various aspects of these
party practices, few have suggested that such practices are inconsistent with
the notion of legal supremacy (see, e.g., Monaghan, 1988, discussing judi-
cial placements in the US).4
One might object that the CCP’s nomenklatura system is far more exten-
sive than that exercised even by majority parties in the UK or the US
(where party influence seems most thorough). But ‘nullum crimen sine lege,
nulla poena sine lege’5 recognizes no quantitative limits. Legal authority is
wholly a matter of consistency. As a general matter, law—even in the most
developed law—is simply not suited for regulating party influences over
appointments to political, governmental, and constitutional office. Efforts
to regulate such influence, such as in Australia, are generally unsuccessful.
In fact, some American scholars—such as Monaghan (1988)—argue that
party politics should play a role in the selection of judges in the US. The
more expansive nomenklatura system of China thus poses no conceptual
tension with the notion of legal supremacy (although, as a practical matter,
in some cases it probably facilitates the ability of the CCP to evade the
implementation of that notion).
Nor is the CCP’s policy power significantly different from that exercised
by majority parties in many rule-of-law systems. Since the 1990s, the CCP
has disavowed the ability to use policy or mass campaigns to trump the law.
This is clearly evident in the recent yanda (strike hard) anti-crime cam-
paign, which some cite as an example of the CCP’s continued superiority
over law. In fact, the yanda campaign functions as a supplement to rather
than as a surrogate for legal regulation. It does not authorize public officials
to ignore legal norms (Liu and Tang, 1997). Indeed, in the early stages of
that campaign, a commentary signed by three legal experts appeared in the
13 June 1996 edition of China’s Legal Daily reminding local police and
criminal justice personnel that the ongoing campaign did not authorize
them to abridge the procedural demands of the recently amended criminal
procedure law, or any other law for that matter (Kung and AFP, 1996).
Some have suggested that the mere use of campaigns and CCP policy to
supplement areas that are already governed by legal regulation—even if
they do not purport to replace existing law—is itself evidence of an instru-
mentalist conception of law. But western parties do this all the time. In the
United States, for example, change in party control of the presidency in
1980 and again in 1992 strongly affected the legal enforcement of anti-trust,
civil rights, and environmental protection law without actually changing the
formal content of these laws. The fact that the CCP similarly uses party
policy to affect priorities in legal enforcement, as it did with the yanda cam-
paign, simply does not distinguish the CCP’s authority from that of political
parties operating in evolved western polities.
Similarly, the fact that the jurisdiction of China’s administrative litiga-
tion law does not extend to the CCP is also consistent with what we find in
most if not all mature legal systems. I know of no jurisdiction in which pol-
itical parties are subject to administrative litigation or administrative pro-
cedure regulation. This is certainly not the case in France (Brown and Bell,
1993: 127–8), the jurisdiction from which China’s administrative litigation
structure is principally derived. It is not the case in the United States, the
jurisdiction which presents the main alternative to the French model
(Warren, 1988: 10). And it is not the case in the UK (Wade and Bradley,
1994: 624–5).
Of course, the CCP is more powerful than most if not all of the majority
parties found in more developed legal systems. But this does not argue that
it should be subject to administrative litigation and procedure laws.
Administrative litigation (and other aspects of the regulation of administra-
tive powers) are designed for entities that exercise legislatively delegated
public authority. The condition of operating under the penumbra of del-
egated public authority poses unique institutional needs, and unique regu-
latory problems for these entities, and thus calls for disciplining standards
and procedures different from those that discipline private actors or public
actors acting through inherent sources of authority (Brown and Bell, 1993,
discussing the French system; Warren, 1988, discussing the American
system). Because the Chinese administrative law system is derived princi-
pally from and inspired principally by the French and American administra-
tive law systems, one may well assume that this is as true for administrative
law in China as it is for the French and American systems. While powerful,
the CCP does not rely on legislatively delegated public authority for its insti-
tutional power and effectiveness. Thus, there is no reason to subject it to
procedures designed to discipline administrative entities.
It should also be noted that the fact that the CCP as an institution is not
subject to administrative litigation suit does not mean that the CCP leaders
and cadres are themselves immune from suit. CCPs members who hold
administrative position are just as subject to the administrative litigation
law as anyone else who holds such office. CCP members who are not
members of administrative organs but who illegally influence governmental
organs are subject to suit as private actors. And in neither case does the law
recognize as a defense a claim that the particular member was simply fol-
lowing internal CCP directive.
This is not to deny that as a practical matter it is much more difficult to
successfully bring suit against CCP officials for illegal behavior, or that it is
more difficult to successfully bring suit, administrative or otherwise, against
persons who were carrying out CCP orders. But these are not problems
that are best addressed through administrative litigation. The real problem
with suing CCP officials and cadres is that power and other non-legal
interests too frequently effect judicial decision-making in China. This is a
global problem within the Chinese judiciary. And the administrative litiga-
tion law does not address this problem any better than does the more
general civil procedure.
Of course, the CCP does enjoy some legal privileges that are not sported
by political parties in recognized rule-of-law systems. But as a conceptual
matter, none of these privileges implies that the CCP’s authority must
enjoy normative priority over that of the law. One of these is the fact that
the preface of the PRC Constitution expressly gives the CCP a ‘leading
role’ in China’s political/constitutional environment. Some point to this as

evidence of the CCP’s priority over law. But as noted by many scholars in
China, this does not necessarily imply that the CCP is free to ignore effec-
tive law. Indeed, the most common interpretation of this provision in con-
temporary China is that this provision authorizes the CCP to set the
overarching policies that govern the direction of governmental and political
activity in China (see e.g. Peng, 1984; generally Dowdle, 1997: 115–16).
This is also the interpretation recognized by the CCP itself (Pu, 1994: 14).
This role is consistent with the role that political parties seek to play in all
mature constitutional systems. In fact, E.C.S. Wade and A.W. Bradley, two
of the most prominent scholars of the British constitutional system, actually
use the words ‘leading role’ to describe the role that political parties play in
Britain’s constitutional system (Wade and Bradley, 1994: 36). Of course,
the CCP is better able and more likely to abuse its authority in this regard
than a majority party operating in a more developed constitutional system.
But as noted above, here we are concerned with normative conceptions,
not systemic inefficiencies.
Some might claim, on the other hand, that the fact that the CCP is the
official party of a one-party state, and that it is not subject to election,
makes the ‘leading role’ of the CCP different from that of political parties
in the UK. Clearly this is true. But this is irrelevant to the issue of legal
supremacy. The function of multi-partyism and elections in general is to
discipline political actors, to help ensure that they will conform their
behavior to higher political norms, which in a rule-of-law regime include
the law itself. But these norms exist prior to and independent of multi-par-
tyism and elections. When Gerald Ford was appointed President of the
United States, when John Major was appointed Prime Minister of Great
Britain, when Chris Patten was appointed Governor of Hong Kong, the fact
that they were appointed rather than elected did not give them greater nor-
mative leeway or authority vis-a-vis the law. There is probably little ques-
tion but that elections, and multi-party elections even more so, would
provide greater incentive for government and CCP officials in China to
respect the law. But the instrumentalist or non-instrumentalist scope of
their duty to respect the law does not depend on whether or not they have
to run for office.
Another unique power enjoyed by the CCP is the power to participate
in judicial decision-making. But even this power does not evince normative
authority on the part of the CCP to ignore the law. It does not mean, for
example, that the CCP may demand that judges and courts ignore the
demands of law whenever it suits the private or public interests of the CCP
or even of the polity as a whole. The fact that the CCP participates in judi-
cial decisions undoubtedly impacts the freedom and independence of the
judiciary vis-a-vis the CCP and probably facilitates the ability of individual
CCP actors to break the law without suffering legal consequent. But in
China, as in the West, the authority of ‘rule of law’ applies to judicial

decision-makers just as it applies to anyone else. If deciding cases and inter-
preting law do not place western judiciaries and other juridical bodies (such
as the French Conseil d’Etat) above the law, we cannot automatically
assume that they place the CCP above the normative reach of the law.
The CCP’s policy of subjecting corrupt cadres to internal CCP disci-
plining procedures and keeping them out of formal judicial proceedings
also has unique aspects to it. As a technical matter, this policy is actually
consistent with how law works in most mature legal systems. All legal
systems recognize the concept of prosecutorial discretion, which allows law
enforcement personnel discretion to decline to prosecute a particular
crime. In the United States, the terms by which a particular prosecutor
determines to exercise prosecutorial discretion are not regulated by law,
and are even subject to the influence of party policy (at least on the Federal
level). But China’s use of ‘prosecutorial discretion’ in this manner is distin-
guishable from the way prosecutorial discretion is used in more mature rule
of law systems. First, as used in China, this discretion is directed at a par-
ticular class of individual (CCP members), rather than at a particular class
of crime or to a particular case with extenuating circumstances. Second, as
used in China, this discretion is intended to facilitate the use of a surrogate
to the legal system (the CCP’s internal disciplinary apparatus), rather than
to increase the efficiency of the existing legal system. In both these ways,
China’s use of prosecutorial discretion is contrary to the spirit if not the
letter of that doctrine as it is used in most developed rule-of-law systems.
But it is not clear what role China’s normative conception of legal auth-
ority plays in this practice. The CCP seems particularly reluctant to publi-
cize or discuss this practice, despite the fact that it has occasionally elicited
complaint even from CCP members. The decision not to prosecute
Beijing’s former mayor Chen Xitong on corruption charges was twice for-
mally raised at NPC plenary session by the Beijing delegate group, and by
members of the NPC’s Standing Committee, and both times efforts to
discuss this issue were summarily quashed.6 By contrast, other politically
sensitive issues such as unauthorized reductions in educational spending,
the plight of workers of state-owned enterprises, the problems with the
yanda campaign, and the general inadequacy of the nation’s courts and
procuratoracies have been brought up in the NPC with relative ease
(Dowdle, 1997). The fact that, despite all this widespread interest and com-
plaint, no one in or outside of the CCP has sought to justify this practice
suggests that this practice does not enjoy much if any normative support.
It is also significant that the CCP itself places great importance on
reducing corruption (Miles, 1996). Thus, it seems highly unlikely that its
policy of promoting internal discipline of corrupt cadres is motivated by a
desire to facilitate cadres’ ability avoid the law. Indeed, there is reason to
suspect that the CCP’s policy in this area is motivated by a greater rather
than lesser concern for legal effectiveness. Much evidence suggests that
local justice institutions are unwilling and/or unable to adequately disci-
pline corrupt local officials (Clarke, 1996: 41–3). The CCP’s internal appa-
ratuses are probably more effective than the courts at performing this task
at present. Therefore, perhaps the best interpretation of this particular
policy is that it provides (or at least is thought to provide) more effective
disciplining than does the formal criminal justice system.7 Of course,
whether or not this policy is really a wise one is an open question, particu-
larly given that such alternate enforcement apparatuses may lessen matu-
ration pressures on the judiciary. But there is no reason to assume that this
policy evinces or is designed to promote the CCP’s normative superiority
to the law.
Law vs personal interests. I have noted that deviations between practice

and stated norm do not necessarily evince that the stated norm is not the
actual norm. But the fact that Chinese practice deviates so much from the
normative demands of the law could still suggest that, even if the sub-
stance of China’s normative vision of law is compatible with rule of law,
the strength of that vision vis-a-vis other interests is insufficient to support
a rule of law system. In other words, the Chinese conception of law might
still be said to be ‘instrumentalist’ to the extent that the normative
demands of the law are more frequently sacrificed to other kinds of
interests, both public and private, than they are in more developed legal
systems.
But even significant deviations from the demands of law by themselves
do not necessarily detract from the normative quality of one’s conception
of law. As is quite clear from the examples of Indonesia during 1998 and
China during 1989, for instance, corruption can be rampant and still not be
normatively acceptable to the polity. As noted above, the systemic distor-
tions of collective choice are such that they can even overcome clear
majoritarian consensus on particular issues, including normative issues. If it
is indeed the case that the normative strength of law does not outweigh
other concerns, then we would expect that the polity would at least some-
times be able to morally empathize with persons who did sacrifice the
demands of law to these other concerns. Thus, a claim that China’s greater
incidence of deviance from the law indicates a lesser normative strength of
the law must demonstrate not merely that such deviance exists, but that
such deviance is more normatively acceptable to the polity than it is to the
polities of more developed legal systems.
In fact, this is not what we find in China. At least with regards to the
problem of corruption, the particular form of deviance most commonly
pointed to by rule-of-law critiques, such deviations are more likely to be the
product of systemic weaknesses than of special weaknesses of normative
vision (see also what follows). In fact, some suggest that the Chinese polity
is less tolerant of corruption than are the polities of other states suffering
from similar levels of corruption (Miles, 1996: 148). More generally, as
noted elsewhere in this article, comparative studies find that the Chinese
polity shows significantly greater normative respect for rational-legal auth-
ority than do citizens from other countries of similar levels of social and
industrial development (Inglehart, 1997: 93). There is no reason to simply
assume that even significant deviations between practice and ideal in China
are the product of a weaker normative concern for the authority of law.
Some also point to the frequency with which actors in China ignore con-
tractual agreements as evidence of pervasive normative instrumentalism.
But even in western societies, contractual obligations do not enjoy much
normative status or authority as evident in our normative acceptance of the
practice of efficient breach.
In sum, while the Chinese clearly evince ‘ambivalence’ toward rule by
law (as noted by William Alford, 1999), this ambivalence manifests itself
in practice, not conception. Normatively, the Chinese, including the lead-
ership, are overwhelmingly consistent in proclaiming the supremacy of
law over other forms of political authority and over private interests.
Such consistency is found in all political fora, including many which were
not intended for public viewing. The fact that the Chinese leadership
now uniformly advances and defends this particular conception of legal
authority strongly suggests that, regardless of the extent to which this
leadership actually respects this conception, the mass of the Chinese
polity, and even a significant portion of the Chinese elite, do sport a
notion of the supremacy of law that is consistent with that required by
rule of law.
2. Systemic Deficiencies
If China’s deficiencies vis-a-vis rule of law cannot be defined by reference

to conceptual norms, they certainly can be defined by reference to
deficiencies in systemic practices. Compared with mature legal systems,
China’s legal system is significantly less transparent, predictable, and con-
sistent; does not offer the same quality of protections for economic, consti-
tutional, and human rights; and does not exercise the same quality of
influence over other political (and private) actors. ‘Rule of law’ might be
regarded simply as an adjective indicating the presence of some or all of
these systemic abilities.8 And if this is the case, then it is clear that China
does not enjoy rule of law.
But such a conceptualization leaves unaddressed the larger and more
important issue of whether ‘rule of law’ so defined is indeed of much utility
for a developing country like China. The law itself is not a deontological
good. A society without capital markets that nevertheless enacts a securi-
ties law is not made better simply by virtue of the fact that it now has more
law. Rather, law is a good only to the extent it promotes other, more fun-
damental goods. Following Dworkin (1986), we can identify two general
ways in which law provides such goods. Most would agree that law serves
to promote social coordination and cooperation. Many would also hold that
the law should serve to promote justice.
The mere fact that China is deficient in some particular aspect of its legal
system, even one commonly associated with acknowledged rule-of-law
systems, is of little significance unless it can be shown that that aspect would
either promote social coordination or help realize social justice in China.
But such promotion cannot simply be presumed. Law—at least in its formal
guise (that which serves as the focus of rule of law)—is not the only way in
which social coordination or justice can be secured. In fact, law is not even
the preferred way for securing these goods. As a general matter, we only
demand or accept legal regulation of a particular environment to the extent
that there are significant problems with social coordination or social injus-
tice in that environment. Where other institutions—be they families,
churches, or professional associations—seem able to effect sufficient social
coordination and justice, we avoid and even resist resort to formal, legal
regulations, even when such resort would seem to work to our benefit (see
e.g. Schwartz, 1954, discussing social order in Israeli Kvutza, and Macaulay,
1963, discussing social order in business networks in Wisconsin; see also
Cooter and Ulen, 1988: 243; Granovetter, 1985). Indeed, recognition of this
phenomenon drives our ideal of limited government. To borrow from the
terminology of Joseph Margolis (1996: 207 ff.), we might say that law is only
a ‘second-best’ form of social ordering.
A. Promoting Social Coordination

Rule of law promotes social coordination in a particular way. It does so by
standardizing and rationalizing procedures of operation, partly to facilitate
predictability, and partly to facilitate the monitoring of public behavior. As
discussed by Max Weber (1981), devices such as legal consistency, ratio-
nalized laws and regulatory jurisdictions, transparency, and public account-
ability are best described in this way (see also Cao, 1997; March and Simon,
1981).
But rule of law, at least in its Weberian manifestation, is not the only way
through which social coordination can be secured. At the heart of the
problem of social coordination is the problem frequently referred to as the
‘prisoner’s dilemma’ (Cooter and Ulen, 1988: 92–4). The prisoner’s
dilemma describes a situation in which an actor is able to realize immediate
gain, at an overall loss to society, by cheating on a bargain. Rule of law
solves this problem by articulating standardized features for making and
enforcing a deal (Cooter and Ulen, 1988: 99–100).
But there is another way that I can ensure against defection, and that is
through repeated interaction (Cooter and Ulen, 1988: 243–7). As studied
by Mark Granovetter (1985), and others, particularly within what are called
‘small-world’ environments (see Hardin, 1998; the definition and dynamics
of small-world environments are described in Watts and Strogatz, 1998),
the disciplining force of reiterated transactions can sometimes be so strong
as to eliminate any need for formal legal regulation.
Thus, a regulator charged with promoting social coordination in a par-
ticular regulatory environment has a choice of regulatory methods. On the
one hand, they can promote such coordination through developing more
effective rule-of-law institutions. On the other hand, they can promote such
coordination by encouraging the development of small-world networks
that link all the actors in the environment, a model of regulation sometimes
referred to as ‘corporatism’ or neo-corporatism9 (Streeck and Schmitter,
1985b; Wiarda, 1997). There are a good many examples of successful cor-
poratist or corporatist-like regulatory schemes that rely primarily on social
networks in lieu of the formal structures commonly associated with rule of
law. These examples can be found in the European Union (Georges, 1996);
Western Europe (Streeck and Schmitter, 1985b); Eastern Europe (Starks
and Bruszt, 1998); Japan (Upham, 1996); and the United States
(Barenberg, 1993; Dorf and Sabel, 1998). Nevertheless, as noted by Frank
Upham (1994), and David Trubek (1972) before him, this particular regu-
latory strategy is universally overlooked by rule-of-law analyses, including
those focusing on China.
Of course, these two manners of regulation have different sets of
strengths and weaknesses, and the benefits and costs of each will vary
according to the structure and conditions in which the particular regulatory
environment finds itself (Upham, 1994; cf. Cooter and Ulen, 1988: 243–7).
But there are a number of factors that suggest that Chinese regulators
would at present do better to focus primarily on developing more robust
social networks rather than on developing stronger rule-of-law institutions.
One such factor is that China is presently in the midst of a period of rapid
social and economic development, and the formal rules on which rule of
law relies restrict the environment’s ability to respond to rapid change
more than does social-network regulation. Rule of law promotes coordi-
nation primarily by limiting discretion, by demanding that one’s behavior
conform to predefined sets of procedures. But limiting discretion also limits
an institution’s ability to innovate (Sabel, 1994), and thus works to stifle the
ability of that environment to adapt to new conditions. Social-network
regulation, by contrast, does not require the behavioral restrictions
imposed by rule of law, since predictability and monitoring are facilitated
by social trust. For this reason, such regulation provides for greater adapt-
ability in rapidly evolving environments (Cooter and Ulen, 1988: 243).
Another factor arguing against using rule of law as the principal mech-
anism for promoting social coordination in China at present is that China’s

regulatory environments have very diverse needs and conditions, and
crucial information about ‘local’ needs and conditions cannot always be
made known to the people designing the legal system. This, combined with
China’s rapidly evolving social conditions, creates a situation in which regu-
latory success will frequently depend on the ‘local knowledge’ of regula-
tors.10 Rule of law inhibits the use of local knowledge by dictating what
behavioral patterns and decision-making factors local administrators may
employ in regulating their particular local environments (Oakeshott, 1962).
Again, since social-network-based regulation does not need to rely as much
on standardized and rationalized modes of behavior, it allows for greater
exploitation of local knowledge (Dorf and Sabel, 1998).
Third, China’s civil society is not particularly developed at present, and
the prior development of some level of social networking appears to be a
precondition for the effectiveness of rule-of-law devices. Mick Moore
(1994: 819) notes that ‘it is widely agreed that, even in societies where the
rule of law is respected, law plays only a limited role in regulating com-
mercial transactions’. To be effective, law must take into account the par-
ticular needs and practices of the existing environment. Even the most
impressive formal legal systems have not been particularly successful when
imposed on existing cultures by blind fiat (Trubek, 1972; Greenberg, 1980).
Effective regulation of any sort thus requires some degree of dialogue
between the regulator and the regulated. This dialogue is at least greatly
facilitated when the regulated are organized (Streeck and Schmitter, 1985a;
Olsen, 1971). Not only does such organization give voice to the regulated,
it also can greatly reduce the transaction costs of disseminating up-to-date
information about the regulator’s evolving concerns to the regulated, an
important consideration in poorer countries with inefficient information
technologies and infrastructures, like China (Stinchcombe, 1990: 341–5).
Such organizations may also be necessary for reifying the base-level of
social trust that many believe to be a requirement for stable social interac-
tion (Arrow, 1974; Putnam, 1993).
The need for some prior level of social organization is empirically con-
firmed in Pistor and Wellons (1999), the Asian Development Bank’s
(ADB) recent survey of economic development in Asia. Confirming the
intuitions earlier advanced by Trubek (1972) and Upham (1994), that
survey found that rule of law, as defined by the presence of formal legal
devices associated with transparency, predictability, accountability, and
juridical independence, did not bring notable economic benefit to society
except where a prior level of economic development had already been
achieved. Since economic development correlates significantly with the
development (or, more precisely, the organizational articulation, see
Olsen, 1971) of civil society (Putnam, 1993), and since the ADB’s survey
did not attempt to distinguish between the two, the ADB’s measurement of
economic development may have actually served as an indirect measure-

ment of the development of civil society. Other studies that have attempted
to distinguish civil society development from economic development have
generally found the former to be a more accurate indicator of effective gov-
ernance (Inglehart, 1997; Putnam, 1993).
Fourth, in environments that can support adequate small-world net-
works, the principal benefit of rule of law’s procedurally imposed pre-
dictability and coordination is that they reduce costs of entry into the
environment for those outside these networks. Devices like transparency,
accountability, and predictability are not important to those inside such
networks because information efficiencies and the disciplining effect of the
network itself are able to supply these conditions. In fact, where effective
social networks exist, they are clearly more efficient (i.e. involve lower
transaction costs) than rule-of-law devices at facilitating coordination for
those inside the network (Granovetter, 1985). This is evinced empirically by
the fact that in both economic and social environments, actors in such net-
works show strong preference for operating within the confines of that
network even when resort to a parallel legal regulatory structure offers
opportunity for greater short-term gains (see e.g. Macaulay, 1963;
Schwartz, 1954; Upham, 1996). Legal ordering in such environments serves
primarily to allow outsiders to participate in the environment without
having to fork out the initial investment necessary to join and learn the
ways of the network (Upham, 1996).
But in most of China’s economic environments, high costs of entry do
not significantly threaten economic development at present. Many regu-
latory environments in China, at least in the economic realm, are already
overpopulated. This overcrowding prevents exploitation of economies of
scale, and helps sustain China’s current market fragmentation, which in
turn prevents regional specialization, inter-regional trade, and ultimately
the development of efficient national allocation of resources (Song, 1995:
394–401). Facilitating new entries would only exacerbate this problem.
Some have claimed that formal legal devices also prevent corruption.
But the relationship between rule-of-law devices and incidents of corrup-
tion is very complex. Putnam’s (1993) study of Italy strongly suggests that
corruption can also be the product of particular aspects of civil society (and
see also Feuer, 1998, discussing social factors that encourage corruption in
small-town police forces in the US). Other studies have found that overall
levels of corruption actually increase immediately after abrupt transitions
to more formal rule-of-law systems occur (Wright, 1997). The United
Nations Development Programme suggests that in most underdeveloped
economies, significant reduction of corruption is impossible due to simple
lack of resources (United Nations Development Programme, 1997: 6). It is
far from clear that the gains in cleaner government realized from the formal
rationalism of rule of law would compensate for such costs.
There is one prominent player in China’s economy, however, that is

naturally situated outside whatever social networks exist, and thus benefits
significantly from the coordinating aspects of rule of law: the foreign
investor (Alford, 1999; Peerenboom, 1999). Indeed, one of the most promi-
nent arguments advanced for promoting rule of law in China is that it
would facilitate more foreign investment. But it is not at all clear that more
foreign investment would actually be a good thing for China, or that if it is,
the best way to facilitate such investment is through Weberian rationaliz-
ation of the legal system. China’s economy is already growing at a very
healthy clip. During the early 1990s, in fact, China even found need to arti-
ficially rein in its economic growth, evincing that China’s current rate of
growth is about all its social infrastructure can handle at present
(O’Donnell, 1993). Given this, it is unclear why China should pursue faster
growth in foreign investment.
Moreover, recent events in global capital markets tend to confirm the
observation that unqualified pursuit of foreign investment is not necess-
arily a good thing. International capital markets can be particularly fickle
and destabilizing—and perhaps even self-defeating—if given too great a
role in a country’s economic development (Greider, 1998: 259–84; Kahn
and O’Brien, 1998; Unger and Cui, 1994: 80). Making foreign investment
more difficult in this way may actually help to insure that China’s domestic-
driven economic growth is strong enough to sustain her overall economic
development in times of international panic (Faison, 1998). Amsden
(1988) finds a similar motor behind Taiwan’s impressive economic devel-
opment.
Even if China might benefit from faster growth in foreign investment, it
is not necessarily the case that she would benefit from the particular kind
of foreign investment that ‘rule of law’ most facilitates. Remember that
social networks are actually more efficient at promoting social coordination
than rule of law for actors within the networks. In such environments, the
coordinating aspects of rule of law serve primarily to reduce entry costs,
and otherwise increase liquidity of investment, for actors outside these net-
works. But increased liquidity also fuels speculation (Faison, 1998). An effi-
cient social network with significant but not prohibitive entry costs, by
contrast, would encourage long-term and more stable investment. There is
some evidence that many Chinese regulatory environments are of this sort.
With an annual growth rate of around 10%, we know that Chinese markets
are relatively efficient at facilitating beneficial deals, and that cost of entry
into these markets is not prohibitive. Given the flighty nature of inter-
national investment capital, maintaining such stability is a real concern, and
the benefits of such stability may well outweigh the disadvantages occa-
sioned by slower rates of growth in international investment.
All in all, it is not clear that with regards to China, stronger rule of law
institutions would actually promote more efficient social coordination at
present. In diverse, rapidly evolving, over-populated and underdeveloped

regulatory environments, the inefficiencies occasioned by such devices—
less organizational flexibility, less ability to exploit local knowledge—
could easily outweigh the efficiencies such devices promote (namely
reduced costs of entry and the ability to exploit economies of scale gained
through task standardization and specialization). The experience of other
developing countries tends to confirm this (Inglehart, 1997; Pistor and
Wellons, 1999; Putnam, 1993; Upham, 1994). This being the case, we would
be wise to temper our implicit faith in the social coordinating aspects of
rule of law.
B. Promoting Social Justice

Of course, rule of law is not merely concerned with promoting social
coordination. It is also concerned with promoting social justice. Rule of law
promotes social justice through a variety of means, which include providing
judicial protection for human rights, economic rights, constitutional rights,
and due process guarantees; and judicial review of administrative behavior.
But these devices focus on the judicial enforcement of these norms, and it
is far from clear whether, given the current state of China’s constitutional
and social development, this is the most appropriate area of focus at
present.
The judiciary’s role as the ‘least dangerous branch’ makes it ill-suited for
serving as the principal defender of social justice (Cappelletti, 1971: 3). As
noted above, judicial protections are better seen as supplements to other,
more fundamental, means of generating social order. The tenuous nature
of a court’s abilities, even in mature constitutional systems, was recently
acknowledged by Justice Sandra Day O’Connor of the United States
Supreme Court:
[T]he Court cannot buy support for its decisions by spending money and, except to a
minor degree, it cannot independently coerce obedience to its decrees. The Court’s
power lies, rather, in its legitimacy, a product of substance and perception that shows
itself in the people’s acceptance of the Judiciary as fit to determine what the nation’s
law means and to declare what it demands. (Planned Parenthood of Southeastern Pa. vs
Casey, 505 US 833, 865 [1992])
A court’s institutional and intellectual authority to issue and impose

its visions in this area ultimately stems from the strength and structure
of the constitutional structure and the larger political environment of
which it is a part (Holmes, 1993). There is no universal moral truth
that requires political actors to defer to the courts’ pronouncements of
social justice as opposed to those of other political institutions. Indeed,
in France, as in a number of other developed civil law systems, the
judicial courts are normatively forbidden from deciding cases based
on the demands of social justice (see Cappelletti, 1971: 58, 62–3;
Merryman, 1985: 39–55). To the extent people care about what the
courts have to say about particular matters of social justice, it is
because a sufficiently strong belief in a particular form of constitu-
tional order makes them want to care. In the United States, the
federal courts did not develop significant review powers in this area
until the end of the 19th century, about the same time as the federal
constitution began to exercise normative influence over political
society (Kammen, 1994: 142). The relationship between a constitu-
tion’s normative development and the development of effective
juridical review is also seen in the constitutional histories of France
(Lindseth, 1996–7) and Great Britain (Wade and Bradley, 1994:
409–623).
As noted by numerous commentators, China’s constitutional and
juridical apparatuses are yet to enjoy the kind of normative status normally
associated with mature constitutional systems.11 This calls into serious
question the ability of even the most formally empowered of judiciaries to
promote social justice in Chinese society at present. None of the insti-
tutional devices associated with rule of law address this crucial, prior aspect
of constitutional/social development (Holmes, 1993; Utter and
Lundsgaard, 1993). Some might argue that judicial independence is an
exception to this claim. But in fact, the relationship between the kind of
formal independence on which rule-of-law commentators tend to focus and
judicial efficacy is far more complex than rule-of-law theory assumes
(Cappelletti, 1982). For this reason, in underdeveloped constitutional
environments like that of China, the ability of the juridical emphasis com-
monly associated with rule of law to actually promote social justice is open
to serious question.
Conclusion
All in all, rule-of-law theorists may simply expect too much from law. The
best explanation we have at present for the travails of rule of law in China
is that the problem does not lie with the legal system per se, but with the
present state of China’s social and constitutional development. What rule-
of-law theory really needs, at least insofar as its application to China is
concerned, is a better understanding of the many diverse ways in which law
and society interact. Instead of reflexively requiring that China immedi-
ately adopt the institutional attributes of a mature legal and judicial system
operating in a mature constitutional culture and advanced economic
environment, rule-of-law theory needs to think a lot more about what
special conditions and needs face developing as opposed to developed
societies.
NOTES
01. Many tend to equate respect for individual moral autonomy with moral rela-
tivism. But in fact, one can recognize moral autonomy while still adhering to a
view of moral universalism. Western human rights scholars, for example, embrace
the notion of individual moral autonomy while at the same time advocating the
existence of certain universal moral rules (Donnally, 1989). Moral autonomy
simply refers to the process by which individuals are to recognize the demands of
the moral universe. It describes a situation in which moral truth is revealed
through reason rather than through positive statement of authority (Dworkin,
1978; Rawls, 1972). Seen in this light, moral autonomy is actually consistent with
Confucianism and other schools of Chinese thought (Peerenboom, 1993).
02. The instrumentalist critique is somewhat misnamed. I retain this terminology
because it has gained common usage in rule-of-law analyses. As noted in Part 2,
all law is inherently ‘instrumentalist’, in the sense that no law exists as a stand-
alone, deontological good. Even the most advanced legal systems only resort to
legal regulation in those environments where there is a need for social ordering
that cannot be met in any, more preferred way. What instrumentalist critiques
focus on is the way the law protects these more fundamental goods (as con-
trasted with liberalism, which focuses on the substance of the good itself ).
03. This was not always the case. Throughout the 1980s, there was much normative
assertion in China that the CCP is and should be superior to the law. It was only
during the 1990s that the CCP’s subordination to legal mandate became a gen-
erally uncontested normative principle of China’s legal and political environ-
ment. Current claims that the CCP still enjoys normatively supra-legal authority
are generally founded on materials and statements from that earlier time.
04. In the United States, there has been some criticism of the degree of power
enjoyed by committee chairs (and thus indirectly by the majority party that
selects these chairs) in both the House and the Senate. But such criticisms
appeal to democratic theory, rather than rule-of-law theory, and focus on the
organizational structure of the committee system, not on the nomenklatura
powers of the majority party.
05. No crime without law; no penalty without law.
06. This information was provided to me by American embassy personnel who
observed the relevant NPC session.
07. This, of course, does not explain the failure to prosecute Chen Xitong, as he was
not subject to formal CCP discipline any more than he was to formal judicial
discipline. But the failure to prosecute Chen has more to do with the internal
dynamics of the CCP than with this particular policy. It is unlikely that Chen
would have been prosecuted even if this policy were not in place.
08. I believe that is somewhat similar to what Randall Peerenboom means when he
talks about ‘thin’ as distinguished from ‘thick’ conceptions of rule of law
(Peerenboom, 1999).
09. This term frequently generates some confusion. It originated as a description of
the Fascist style of government, in which the state enlists selected private
interests as its aids in maintaining its power. In its newer guise, corporatism
refers to regulatory environments in which the state serves as an intermediary
that facilitates bargaining between diverse interests within the environment by
reducing transaction costs. The modern usage was first used to describe the par-
ticular form of labor regulation associated with Germany in the 1950s.
10. ‘Local knowledge’ is knowledge that cannot be captured by rational codifica-
tion. There are two general sources of local knowledge. One is environmental
diversity. The more diverse an environment, the more difficult it is to draft a
collection of rules that apply with equal effect throughout that environment. In
addition, some kinds of tasks, and consequently of knowledge about these tasks,
are just inherently resistant to formal codification. We simply cannot (at the
present time) draft a rule book that guarantees that every one who reads it will
compose like Stravinsky. Nor can we draft a book that could teach one how to
appreciate Stravinsky’s music. Knowledge related to composing and appreci-
ating music can only be developed to any significant degree through experience.
Indeed, success in any sufficiently competitive environment is highly dependent
on local knowledge.
11. Some might suspect that this contradicts what I argued above about China
evincing normative respect for law. But normative respect for law is different
from blind respect for the courts’ institutional articulations of the law. Indeed,
the ability to distinguish between the two, to embrace the former while holding
a healthy skepticism for the latter, may well be a defining feature of advanced
legal consciousness (Dworkin, 1978: 206–22).
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BIOGRAPHICAL NOTE
MICHAEL W. DOWDLE is currently a senior research fellow at the Center for Chinese
Legal Studies at the Columbia Law School. He worked for three years in China
as a visiting professor at the Beijing University Law Department. He has also
worked with the Ford Foundation, the United Nations Development
Programme, and the United States Information Service on matters related to
China’s legal development. Address: Centre for Chinese Legal Studies, Columbia
University School of Law, 435 West 116th Street, New York, NY 10027, USA.
[email: mmd35@columbia.edu]

China and The Fallacies of Rule of Law': Heretical Laments

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HERETICAL LAMENTS

China and the Fallacies of ‘Rule of Law’

Cultural Dynamics 11(3): 287–314. [0921–3740 (199911) 11:3; 287–314; 010175]

due to deficiencies in her conceptualization of law. We will find that these

Many commentators attribute China’s failure to develop a rule-of-law state

Svensson (1996) are able to find individualist priorities in traditional

societal respect for liberal virtues is most commonly accompanied by a

The legitimacy argument. Another conceptualization of liberalism focuses

China’s national parliament, the National People’s Congress (NPC),

role’ in China’s political/constitutional environment. Some point to this as

China, as in the West, the authority of ‘rule of law’ applies to judicial

Law vs personal interests. I have noted that deviations between practice

If China’s deficiencies vis-a-vis rule of law cannot be defined by reference

A. Promoting Social Coordination

anism for promoting social coordination in China at present is that China’s

economic development may have actually served as an indirect measure-

There is one prominent player in China’s economy, however, that is

present. In diverse, rapidly evolving, over-populated and underdeveloped

B. Promoting Social Justice

A court’s institutional and intellectual authority to issue and impose

Alford, William P. (1999) ‘A Second Great Wall? China’s Post-Cultural Revolution

Judicial Responsibility’, Caracas, 11th International Congress of the Inter-

Hobbes, Thomas (1996) Leviathan, ed. Richard Tuck. Cambridge: Cambridge

State—and Associations? The Prospective Contribution of Interest Governance

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