SPEAKING FREELY China edges closer to rule of law
By Thomas Velk and Shannon Gong
Speaking Freely is an Asia Times Online feature that allows guest writers to have their say. Please click hereif you are interested in contributing.
When the US ambassador to China, Gary Locke, said the mainland "should turn to Hong Kong for inspiration over reform under Beijing's new leadership", and that the "world's second-largest economy could only benefit from further liberalization" - he is probably right.
And the rule of law has a key role to play.
Optimizing China's progress and development while maintaining a strong economy will require a more accountable and respected legal system premised on the rule of law - one that encourages principles of openness, freedom and transparency on the markete
and particularly one that would attract foreign investors by insuring their well-deserved confidence.
But whenever the concept of rule of law enters our policy discussions, there is always that tempting inclination to presume that China's ideology is directly opposite to that of the West.
In fact, a transpacific hybrid rule of law tradition may be surprisingly easy to bring about. First, the many parallels between the Chinese and Western traditions make it easier to bridge the gap. A traditional Chinese model already exists, built on the combined teachings of Confucius and legalists.
President Xi Jinping need not himself direct the bridge construction, he only needs to allow China's transpacific population of young professionals to be agents of change. These individuals may be at home or abroad, multi-lingual, personally well-acquainted with material amenities, and are feeling the need for social and political "comfort zones".
Confucianism (rule by morals) and Legalism (rule by law) are two competing school of thoughts that have always dominated China's perennial historical debate on how to best rule the country. Both share similar values with the West.
Confucians believe individuals should be as little constrained as possible by general legal force and punishment because overly formal litigation diminishes social harmony among men who are fundamentally good.
It is best to settle differences with friendly negotiation, meditation and mutual compromise. Some degree of autonomy for the people is important because too much intervention by the state is unhealthy.
Punishments should be proportional to the crime. Officials should exemplify righteous behaviors. All of these ideals resemble the West's paramount ideas: the limited power of the law, the virtue of justice, the values of flexibility and proportionality, and the strong expectation that jurists and officials adhere to high ethical principles.
The contrasting Chinese standard is Legalistic. It promotes Fa (law) as the primary mechanism of State control. People, many of whom are innately evil or at least amoral, are told what they should and should not do.
Along these lines also come strict legal procedures that resemble the merits of the West's "due process of the law": Laws must be communicated clearly, consistently and concisely so every ordinary citizen is aware of their contents and implications; It must be universally understood.
Today, the two internal Chinese standards exist simultaneously, along with the West's sometimes parallel rule of law model: which will shape the future? As natural optimists, we anticipate a natural evolution that will produce a healthy three-way hybrid.
In contemporary China, the constitution of the people's republic guarantees fundamental values including certain rights and liberties, but it is not actually "the law of the land" because it is not directly enforceable.
The law-making process is not always transparent. "Conflicts of law" arise since a wide diversity of political entities is empowered to write or enforce legislation, sometimes without regard to consistency or hierarchy. The judiciary is not as independent as it might be. The exact organizational details of China's legal institutions are not deeply rooted at the constitutional level.
But always and everywhere the 2,000-year history of Confucianism as state philosophy asserts itself in the national memory. Simple folk as well as sophisticated "agents of change" who have seen the Western rule of law in action believe that the Ruler should intervene as little as possible with the lives of the people.
When they do intervene, legalist principles ought to be applied so that the law is not arbitrary and is consistent and clear every time. Such benign neglect, Confucianism teaches, and hybrid thinking believes, will encourage moral rectitude in the people, and instruct them in the wisdom of moderate, cooperative behavior in times of stress and change.
The beginning of a new leadership is an ideal time to transform this traditional wisdom into practical policy. To achieve the goal of change while keeping stability, a reformed civil order ought to rationally and practically be seen by the new president as best for him, best for China, and best for uncertain times.
Reforms that encapsulate these traditional ideas, and mix them with the Western idea of limited governments do not mean Xi has to surrender ideology. If he adopts the Confucian tradition of small scale problem solving, if he takes in legalists' compliance to procedural justice, and if he supports the desire of the agents of change to live well in an environment of open but moderate social order, he will find a feasible plan that will give him a place of honor in the history of modern China.
There may be increasing international pressure on China to build a legal system that is premised on the "rule of law", but historical, social, cultural and political differences pave the way for China to explore for itself a unique system that may well obtain the best of two worlds: the West's version of the rule of law and China's own ancient and modern philosophies.
China's need for reforms and desire for stable growth does not have to be mutually exclusive. The answer, a hybrid form of the rule of law, may just be a few steps away.
Speaking Freely is an Asia Times Online feature that allows guest writers to have their say.Please click hereif you are interested in contributing.
Tom Velk is the director of the North American Studies program at McGill University. Shannon Gong is a law student at the Chinese University of Hong Kong. Olivia Gong, a finance student at McGill, also contributed to this article.
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