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INTERNATIONAL LAW CORNER

Reflections on the rule of law in today’s China

T

he year 2009 marks a major anniversary for Chinese law reform. Thirty years ago, in 1979, the People’s Republic of China embarked on a dramatic new phase of legal reform. Having just emerged from a chaotic era ― one might say a tragic era ― in which Mao Zedong had delivered such disasters as the Great Leap Forward and the Cultural Revolution, China and its leaders began charting a dramatically different economic course, which in turn required fundamental changes in the nation’s laws and legal concepts. In this anniversary year, it seems particularly appropriate to reflect on the consequences of that remarkable legal reform campaign. I have examined several such consequences in a recent book titled “China’s Legal Soul” (Carolina Academic Press, 2009). One of the most important issues I raise in that book concerns the rule of law: Can we say that there is, in fact, a “rule of law” in China today? Addressing this question requires us, of course, to consider just what the “rule of law” means. Countless definitions have been proposed, and yet I find many of them provincial in scope, reflecting exclusively Western (especially American) conceptions about law, government and society. In an effort to take a broader cross-cultural view, I would propose this rough-and-ready definition of “rule of law”:

A society may be said to adhere to the rule of law if the rules in its legal system are publicly promulgated, reasonably clear in their formulation, prospective in their effect, reasonably stable over time, reasonably consistent with each other, applicable to all segments of the society (including the government, so as to prevent the government elite from acting arbitrarily), reasonably comprehensive in their coverage of substantive issues facing the society and its people, and reasonably effective, in the sense that the rules are broadly adhered to by the people in the society ― voluntarily by most, and through officially forced compliance where necessary. It should be obvious that my rough-and-ready definition would surely seem overly narrow and simplistic to some observers. For example, my rough-and-ready definition encompasses none of the substantive rights (such as the rights of freedom of expression, freedom of religion, freedom from arbitrary arrest and detention, etc.) that some “rule of law” definitions insist on including. Nor does it refer at all to democratic involvement (or consent or even acquiescence) in establishing the legal rules. Nor does it require a separation of governmental powers into offsetting compartments. In short, the rough-and-ready definition I suggest above is what one observer, UCLA Professor Randall Peerenboom, refers to as a “thin” rule of law. My definition draws on the writings of the famous Harvard legal

By John W. Head

KU LAW MAGAZINE 21

KU Law Magazine | Spring 2009  

A magazine for alumni and friends of the University of Kansas School of Law. Story highlights include: Alumni spread legal roots in rural Ka...

KU Law Magazine | Spring 2009  

A magazine for alumni and friends of the University of Kansas School of Law. Story highlights include: Alumni spread legal roots in rural Ka...