Commentary. The Chinese reform should not be framed along the lines of the ‘march towards’ or ‘away from’ the Western rule of law, but it is rather a matter of interpreting the direction of the ‘path of the socialist rule-of-law state with Chinese characteristics.’

Xi Jinping’s ‘Rule-of-law China’ will strengthen legal institutions

In these days marked by the work of the “Double Session” (Lianghui), the annual legislative period in China, the People’s Daily is devoting ample space to reflection on the rule of law, a topic always present, and controversial, in the Chinese political and scientific debate.

This principle was entered into the Constitution in 1999, in Art. 5, with the expression “government of the country according to law,” different from the previous “government of the country through the law,” where the change of a single character implied a formal departure from that instrumental use of law typical of the traditional authoritarianism of Han Feizi and of the first emperor in Chinese history, and which moved towards a “Confucian” interpretation, under the banner of harmony and mediation, with Hu Jintao, who was opposed to the proliferation of disputes in the courts, and then became a fundamental piece of institutional architecture in the era of Xi Jinping. Xi Jinping opened the policy debate on the need to strengthen the country’s “rule according to law” as soon as he came to power. Shortly thereafter, the National People’s Congress established Constitution Day on December 4.

Xi’s actions were mainly focused on fighting corruption and improving the professional level of legal practitioners, raising their social status, reforming competitive examinations, etc. A key step was the constitutional reform of 2018, which formalized the role of the general leadership of the Party as a fundamental principle of the legal system, and thus created supervision commissions, establishing a formal procedure for the work of supervision, which until then had remained discretionary and internal to the Party. It established a legislative committee with functions of control over the legitimacy of laws (which is still not operational) and eliminated the limit of two terms for the Presidency of the Republic.

Last November, Xi Jinping published his “Thoughts on the Rule of Law,” and two months later, the Central Committee published the “Plan for Building a rule-of-law China (2020-2025).” The phrase “rule of law” is used in an adjective sense attached to the word “China,” which remains a noun in the Chinese sentence. Thus, this is not a Chinese version of the rule of law as such, but a sort of indigenous, endogenous principle of legality.

Thus, the path of Chinese reform should not be framed along the lines of the “march towards” or “away from” the Western rule of law, as much of the Western, and especially American, debate likes to put it, but it is rather a matter of interpreting the direction of the “path of the socialist rule-of-law state with Chinese characteristics.”

The path outlined by the Plan will have the following core elements: submission to the unitary and centralized direction of the Party, not intended as a whole, but with particular reference to the central bodies, with Xi Jinping himself “as the fulcrum”; the refinement of the ideological framework of the socialist rule of law with Chinese characteristics; the need to “place the people at the center,” trying to respond to the increasing demand for legality that comes from below, and the strengthening the legal protection of rights and legitimate interests; and the constant taking into account of the concrete reality of the country and of its economic needs.

The Plan sets two deadlines: 2025 for the finalization of the law-based Party leadership mechanism, the socialist legal system with Chinese characteristics centered on the Constitution, the government administration system based on clear responsibilities, the operational mechanism of mutual cooperation and mutual control of the judiciary; and 2035 for the ultimate realization of a rule-of-law country, a rule-of-law government and a rule-of-law society, and more generally for the modernization of the country’s governance capacity and system of government.

Xi’s project seems to intend to reshape the relationship between central and peripheral bodies, strengthening the institutional instruments of control over the latter both from above and from below, thus improving the protections of citizens. For the Chinese leader, this would guarantee that populist support which is fundamental for the legitimation of the continuous growth of his power.

We are likely to see the development of a dual-regime “rule of law,” one closer to the Western principle of legality, in place at the local level, and another closer to an instrumental, legalistic use of the law in connection with the central leadership and Xi Jinping’s personal role.

Ivan Cardillo is a lecturer of law at Zhongnan University of Economics and Law and a teaching fellow in the Faculty of Law at the University of Trento.

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