Developing Rule of Law in China

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March 9, 2012

By Kevin R. den Dulk

Chinese Premier Wen Jiabao opened the 2012 annual meeting of the National People’s Congress (NPC) with a speech that hit many expected notes about price stability, growth rates and money supply.  But he may have sounded a little dissonant when he cited the property rights of individuals as a legislative priority in the coming year.  Why did he bring up that topic in this largest of communist conclaves? 

In recent historical context, it’s not surprising.  For the past three decades, China has been adapting to the complex imperatives of globalization and market-based economics.  During that process, the Chinese Communist Party has been under intense pressure, both at home and internationally, to toughen protections for intellectual and other types of property.  Although Wen’s comments were specifically focused on land rights among domestic farmers, one could argue that he was acknowledging a broader point that has generated a great deal of recent discussion: China needs to develop the rule of law to reflect its new status as a major economic power.

For many human rights activists, this discussion about legal reform and the rule of law is propitious.  After all, they argue, building the rule of law in China is not simply about fair and open markets; any positive reform to property rights signals the possibility of greater protections for additional rights as well.  And optimistic observers can point to other national contexts where rule-of-law reform has been contagious, that is, where claiming rights in one area (e.g., property) became grounds for claiming them in another (e.g., religious freedom).   

But amid these hopeful arguments, there are reasons for caution, especially when we take stock of recent “rights revolutions” in other countries.

First, judicial independence goes hand-in-hand with a country’s embrace of new rights protections.  Most post-communist states in Eastern Europe, for example, established constitutional courts with some autonomy from other political branches.  But no Chinese court has authority to invalidate governmental actions under the Constitution.  The power of constitutional interpretation rests with the Standing Committee of the NPC, the very same body that has plenary legislative power when the full NPC is not in session.  And the Standing Committee has little incentive to change this arrangement as part of rule-of-law reform.

Second, states that protect rights are generally responding to citizens that mobilize around rights.  People must understand themselves as rights bearers before they will seek legal redress of grievances.  Here, again, there are stiff historical winds in China, which traditionally has little concept of “rights” (at least as Westerners would understand the term).  This may be changing with economic development and the emergence of rights-based activism, but it goes without saying that centuries-old patterns do not change quickly.

Third, civil society has played a decisive role in fueling “rights revolutions” across the globe, and generally lawyers (and their professional associations) have been key actors within civil society.  In the post-Mao era, however, China has lacked a critical mass of legal advocacy.  My calculation puts China at about 14 lawyers per 100,000 residents, compared to 79 in Singapore, 102 in India, 187 in Germany, or 319 in Brazil.  (The United States has nearly 400, but I won’t hold that number up as the model!)   To be sure, that number is a significant change from the days of the Cultural Revolution, when lawyering was effectively banned.  Still, it suggests that Chinese civil society has a long way to go before it can effectively mediate between the individual and the state.

The rule of law in China is a compelling goal; the means of achieving that goal, however, involve profound and complex challenges.  For Westerners concerned about basic rights—particularly the freedom of religious belief and worship—it is tempting to seek strong actions from our own governments to compel China to move toward legal reform.  Some prominent Christian voices, for example, have insisted that the United States link “normal” trade relations to the Chinese government’s treatment of religion.  But both the comparative lessons and China’s own history suggest policy tactics that are more developmental than realpolitik: The patient building of capacity among Chinese citizens so that they can craft their own version of a rights revolution.

—Kevin R. den Dulk is the Spoelhof Teacher-Scholar-in-Residence Chair in Political Science at Calvin College in Grand Rapids, MI. He participated in the Civitas public policy leadership program of the Center for Public Justice in 2000.

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion.