Book Review Series: "Chinese Way to the Rule of Law" by Ling Bin
Reviewed by: Zhang Yi Genre: Chinese Law, Law and Culture Language: Chinese
About the Author: Ling Bin is an Associate Professor at Peking University, Faculty of Law. He acquired his Bachelor of Law degree at Peking University in 2000, Doctorate of Law degree at Peking University in 2005, and LLM at Yale Law School in 2006. He has served as a lecturer at Peking University since 2006 before he became an Assistant Professor in 2009. He currently teaches courses including Principles of Law, Law and Economics, Law and Society, Study on the Judicial System, Legal Writing, and Legal Research. Since February 2011, he has served at the People’s Court of City of Beijing Fangshan Ward as a Temporary Deputy Chief Judge, a member of its Judgment Committee, and a Judge.
“After a law is created, what should we do to make sure that every government official and the public clearly understand and strictly abide by the law, and at the same time assure coherence and fair execution of the law?” (stated as “Xiao Gong’s Dilemma” p.27, referring to Zhang Jue’s “Shangjun Shu”, p.181). This is the central theme of Professor Ling Bin’s book, The Chinese Way to the Rule of Law (2013). After the end of the traumatic Cultural Revolution, China has been rebuilding and modernizing its rule of law mainly through transplantation of law from other western jurisdictions. However, after three decades, China’s rule of law still contains various problems such as corruption of judges, ineffective enforcement, and most importantly, loss of the public’s faith in the judiciary system. In the academic field, the overly idealistic features of the imported laws have left the Chinese legal scholars in what Ling calls “legal alienation” due to the law’s incompatibility with the reality of Chinese society. He observes that many people are wondering if China is simply not ready to adopt the rule of law. In Ling’s view, the difficulties associated with establishing the rule of law should not be attributed to external reasons such as China’s political system and its large population, but rather to the internal characteristics of the rule of law. He argues that the Chinese way to the rule of law exhibits itself as the conflict and collaboration of two methods and ideals for the rule of law: the rule of law through specialization (“专职法治”) and the rule of law through popularization (“民本法治”).
Ling states in the beginning of the book that there’s no absolute answer as to which model is right and which model is wrong, as each has its merits and demerits. The rule of law through popularization is a highly unique and wholly new method compared to the western way of rule of law through specialization. In Ling’s mind, the purpose of this book is to expose the fundamental, complex and universal nature of the dilemma between the two competing models, and to emphasize the fact that no matter which model, if adopted without any regard to the other, not only will fail to mitigate but will worsen the contemporary crisis in China’s system of law.
Rule of law through specialization grants legal elites the power to administer the law. However, it is inconsistent with China’s moral and political principles and will not receive the public’s support.
Adopted by both ancient China and the modern western countries, the rule of law through specialization is a top-down model which focuses on allowing legal elites to monopolize and control the law. According to Ling, under this model, the general public would not be given the chance to directly learn and interpret the law, because to do otherwise would allow the public to challenge the legal elites’ authority in administering the law. Then, law will no longer remain sacred in the eyes of the public. In ancient China, monopolization of law was achieved through keeping the books of law strictly sealed and anyone--aside from a few chosen justices--who broke the seal was subject to death penalty. In modern western countries, this is done by constructing a highly sophisticated system of complex jargons, a peculiar training of legal practitioners, and the specialization of fields of law which could only be familiarized after years of practice. Ling argues that by granting legal elites the sole power to administer the legal system, the rule of law through specialization serves to isolate the public from the legal system.
According to Ling, for the last three decades, China has sought to modernize its system of law by importing legal codes and adopting many features of the western way of rule of law. However, Ling argues that there are many defects to the rule of law through specialization. He lists the separation of powers between the three branches of government as one symbolic feature of this model. Although the separation of power sets out to restrict the power of the executive branch by the power of the legislative branch and the judicial branch through a system of checks and balances, Ling claims that this ideal is very hard to realize. Interest groups will control the government through the three branches by means of lobbying in the Congress, manipulating the judicial procedures, and influencing the popular opinion. Accordingly, Ling warns that the system will likely lead to the exploitation of the public through collaborative efforts of the three branches. For example, local governments throughout China frequently seize lands from private owners through the use of eminent domain and compulsive demolition, and then profit from selling the lands to developers. Many owners, especially farmers whose family has farmed the land for thousands of years, fiercely resist this because of the grossly inadequate amount of compensation paid to them. This has led to violence and social instability around the country. In response, the central government passed City Housing Management and Demolition Ordinance (“城市房屋管理拆迁条例”) on 2001, providing legitimate basis and protection for the action of local governments. By enforcing the ordinance, Ling claims that the courts simply converts the executive branch’s action into what he calls “legal violence.” Ling argues that this example explains how China’s attempt to confer more power to the judicial branch by adopting a western style of rule of law can lead to undesirable results. He further argues that China’s failure to successfully modernize its rule of law through transplantation can be attributed to the western rule of law’s disregard for ethic and morality. The rule of law China adopts should be consistent with both the traditional Confucius principle of “the benevolent loves the others” as well as the Socialism motto of “serving the people wholeheartedly” and “to represent the interests of the overwhelming majority of the people” regard the interest of “the people” as the top priority. Ling concludes that the rule of law through specialization will only serve to provide illegitimate legality to the government’s actions, and such a government--one that focuses more on achieving procedural justice than substantive justice--will lose the public’s faith and support.
Rule of law through popularization allows the public to participate in the process of developing China’s rule of law. This method helps to restore the public’s faith in the legal system and should be adopted in China.
The rule of law through popularization is an alternative bottom-up model that is being adopted in the modern China. According to Ling, this model strives to create, execute, and interpret the law in ways that common bureaucrats and the general public can easily understand and utilize. It originates form the gradual accumulation of basic moral principles within the society, and is achieved through cultivating the public’s faith and confidence in the law by accomplishing justice in individual cases. Ling point out that this model therefore requires recognizing the superiority of the people’s interests as well as the Communist Party’s leadership in upholding the authority of the constitution and the law. Unlike the rule of law through specialization, here, knowledge of the law must be spread among the general public and must remain under the public’s control. The public will utilize and abide by the law only after they are educated about the knowledge of the law. Ling argues that by adopting the rule of law through popularization, the public no longer remains as mere subject of China’s legal system and the public’s active participation in the legal system will help stabilize the Chinese society.
Ling points out that the difficulties associated with China’s efforts to modernize its legal system can be attributed to the overwhelming majority’s lack of knowledge of the law as well as the few legal elites’ failure to focus closely on the people’s interests in designing and promoting the legal system. Therefore, he goes on to say, the rule of law in China can only be established by popularizing the law. This not only involves passing down the knowledge of law to the general public, but also enabling the general public to participate in developing the legal system. Ling argues that Chinese legal scholars should not use western legal theories to examine and criticize the various problems encountered by China in its attempt to reform the law, but rather devise their original theories based on the problems specific to China, and further review and criticize the western theories and their applications.
Ling quotes the legal historian Franz Wiercker’s observation in “Modern Judicial History” that the drafters of the German Civil Code faced “two incompatible legislative ideals,” and had to make an extremely difficult decision: “If we design the code in a way that entrusts its enforcement to highly educated judges, we will sacrifice the vividness and straightforwardness in the code’s language; on the other hand, if we were to regard the code as the people’s common property and emphasize its function in educating the general public, we will lose its meticulous concepts and abstract logicality.” (p.23, referring to Franz Wiercker, “Modern Judicial History”, translated by Chen Aie and Huang Jianhui, 2006, p.451, p.460). In Ling’s eyes, the conflict between the two models underlies the modern China’s attempt to achieve rule of law, and is the primary focus of this book. Both models of the rule of law are founded upon the harmony and mutual trust between the general public and the legal professionals. However, Ling claims that the western way of rule of law through specialization suggests forcing the general public to accept the legal professionals’ choice of value in exclusion of other incompatible values. In contrast, rule of law through generalization demands the legal professionals to work closely with the general public with the purpose of serving the people.
Although Ling states that the purpose of this book is not to take sides, he clearly regards the rule of law through popularization to be the superior model. He bases his openhanded support on his assumption that this model can contribute significantly to China’s judicial reform, economic development, and establishment of a harmonious society. However, one might also note the fact that this “unprecedented” and “innovative” model generally conforms to the current regime’s ideology and various policies, and that it does not require major reforms of China’s political and judicial system to precede its adoption. Although not everyone may share the author’s optimism about the effectiveness of this model, Ling nevertheless provides a very useful and insightful introduction to the way some Chinese scholars are debating about the Chinese ways to the rule of law.