It's more Confucianism than constitutionalism.
- By Carl MinznerCarl Minzner is a professor of law at Fordham University.
Starting today, the Chinese Communist Party is having its biggest meeting of the year: the annual plenary session, held this year from Oct. 20 to 23. As in previous years, top leaders will gather in Beijing to set out a broad policy framework that will guide the work of party and government authorities over the coming year. This year’s theme? Ruling China according to law.
This might seem an unlikely choice given the recent trajectory of Chinese politics. At the top of the system, a politicized anti-corruption purge has roiled the ranks of the elite, toppling previously untouchable officials like former security czar Zhou Yongkang. A whiff of a cult of personality now surrounds China’s top leader, Xi Jinping, with major social science grants directed to academics who plan to study his speeches. In society at large, as the Brookings Institution’s David Shambaugh has noted, "Repression in China today is at its most severe point since the aftermath of 1989." Mainland political dissidents have been muzzled through both formal arrests and entirely off-the-books "disappearances." And over the past year, state authorities have increasingly resorted to televised public confessions by social media celebrities, foreign corporate investigators, and alleged terrorists — rather than statutes and trials — to send signals to society at large.
The choice of theme for the plenum has nothing to do with implementing the rule of law as an independent check on party power. Xi has ruled this out. Like his predecessors, he remains committed to one-party rule. He has looked at Tiananmen Square, he has looked at the Arab Spring, and he has drawn his conclusion: weaken the political control of the party and you jeopardize the entire edifice. Chinese leaders have ramped up their repression of a wide range of civil society organizations and legal activists, including figures such as Xu Zhiyong and Pu Zhiqiang.
But while top Chinese party leaders may not be interested in building legal institutions to limit their own power, they are interested in invoking the concept of law to pursue other ends. At least three separate but overlapping trends are leading Chinese authorities to emphasize law at this time.
First, Xi appears to be trying to swing back toward a somewhat more institutionalized form of party rule.
The last two years have been very disruptive to the Chinese bureaucracy. Since acceding to the top post in 2012, Xi has consolidated his power through both a sweeping anti-corruption effort that has removed many of his political rivals and a populist "mass line" campaign that has pushed cadres to go out and learn from ordinary citizens. Such efforts have shaken the party-state apparatus. In coal-rich Shanxi, almost half of the 13-person party provincial Standing Committee is currently under investigation for corruption. In conversations, mid-level Chinese bureaucrats report overwhelming workloads and a pervasive sense of career uncertainty as supervisors and associates are hauled before party disciplinary inspection committees. Cadre morale has fallen. A tough official austerity drive has meant the loss of perks such as official vehicles, housing, and the ability to give and receive luxury goods, gift cards, and even moon cakes. Perceiving official careers as carrying higher political risk and lower economic rewards, recent college graduates are shunning the civil service examination for the first time in decades. In Zhejiang province, the number of applicants declined 37 percent in the past year, from 360,000 in 2013 to 227,000 in 2014. Declines in other provinces range between 10 and 30 percent.
It is tough to run a bureaucracy this way for an extended length of time. Unsurprisingly, Xi is taking steps to rein in some of the tactics that he has relied on for the past two years. The "mass line" campaign ended last week. The July notice that the fall plenum would focus on law accompanied the long-awaited announcement that former security watchdog Zhou was under party investigation. And although party disciplinary head Wang Qishan has indicated that anti-corruption efforts will continue, signs are emerging that authorities are searching for ways to regularize these efforts. Both the funding of the party disciplinary commissions charged with investigating corruption and the bureaucratic rank of the officials who are charged with running them have been increased. It is likely that the fall plenum will confirm these developments as a model going forward.
Of course, strengthening the bureaucratic role of a secretive, extra-legal party disciplinary apparatus doesn’t exactly resemble "rule of law" in any manner that Western liberals would recognize. But in a country where the choice of governance all too often boils down to unstable mass movements or top-down political purges conducted on the whim of an individual on the one hand, and authoritarian bureaucratic rule on the other, "law" is often shorthand for the latter. And in his choice of topic for the party plenum, Xi may be signaling an effort to institutionalize his rule.
The second trend is that China’s central leaders do seem to have given the green light to a limited range of legal and judicial reforms.
These reforms will undoubtedly be highlighted at the plenum conference. Central authorities have formally abolished the controversial re-education through labor system used to sentence prostitutes, drug users, and political dissidents to lengthy detentions without trial. They have made judicial transparency a priority, with some provincial court authorities striving to make all of their verdicts available online. Central authorities have partially revived concepts of judicial professionalism that had gone into eclipse during the later years of Hu Jintao’s administration. One example is the attempt to separate out legal disputes and court cases from the poorly defined petitioning channels many citizens use in practice to resolve their disputes. And authorities are experimenting with insulating judges from interference by local officials. Pilot reforms in six provinces remove control over the funding and appointment of local judges from the hands of county authorities, vesting it instead with provincial courts.
This does not mean a repudiation of any core policies. Far from it. Beijing’s commitment to maintaining social stability above all else remains unchanged. But central authorities appear to be gambling that recentralizing control over the court system will help curb social dissatisfaction by combating incestuous relationships between local judges and government officials that are the source of many citizen grievances. Whether this will work in practice is an open question. As one Guangdong judge explained the challenges, "If local officials no longer bear any direct responsibility for us, the next time we need their help — executing a verdict, finding housing for judges — they are likely to simply turn us down, or tell us to run to the provincial capital. How are we supposed to operate then?"
Third, Chinese leaders are also moving to reshape the legal landscape with Xi’s signature rhetoric — specifically, the "Chinese Dream."
Since 2012, Chinese authorities have begun to pivot back to Chinese history and "traditional culture" — repudiated by Communist dogma since the early 20th century — as a justification for party rule. Once denounced as an archaic remnant of a feudal past, Confucius is now being revived as the quintessential emblem of China’s national character. State media now feature glossaries of the classical Chinese expressions that have begun to litter Xi’s official speeches. Of course, Beijing has a very specific aim. It is attempting to mobilize a politically correct version of China’s past to replace a bankrupt official socialist ideology with something enjoying more popular appeal.
This is spilling over into law. The official bulletin of the Chinese courts now carries articles with titles such as "Find Sustenance for the Rule of Law in the Confucian Classics." The contrast with the waning decades of the 20th century and the first few years of the 21st — when an outward-looking Chinese leadership sponsored efforts to learn from Western legal models as a means to repair the damage of the Cultural Revolution and ease China’s entry into the World Trade Organization — is growing.
Of course, a move to define law as a culturally specific artifact of Chinese history and tradition would also be politically useful for Chinese leaders. Since "rule China according to law" emerged as a top party slogan in the late 20th century, it has also served as convenient political cover for a range of Chinese political liberals and legal activists to push for deeper reform. They have capitalized on the central government’s stated interest in legal reform to argue in favor of borrowing foreign models, implementing constitutional checks on state power, and strengthening the role of the judiciary. Such ideas have periodically attracted support within the bureaucracy. In the early 2000s, an idealistic generation of young Chinese judges, lawyers, and scholars raised on reading American cases such as Marbury v. Madison and New York Times v. Sullivan began to act as if these principles could be applied in China — striking down state actions, submitting petitions to invalidate national regulatory systems, and the like. Political campaigns within the judiciary, controls on the bar, and arrests of some of the more noted legal activists have since clarified matters.
But an even more effective means to stem the contagion would be to halt it at its source. An authoritative ideological interpretation of "law" might clarify the inapplicability of Western concepts. It could underline the extent to which the current Chinese legal system is rooted in time-honored imperial concepts and practices dating back centuries. Judiciously tie this new legal orthodoxy to scholarly grant applications and educational curricula, and you might have a recipe for neutering some of the dangerous ideological pressures that have crept into China over the recent years.
The fusion of these trends means that one could easily imagine the fall party plenum coming out with a comprehensive statement on "rule of law" that amounts to an authoritative endorsement of a revised authoritarian party apparatus dressed up in Confucian garb, with some small residual space left for technical legal reforms around the margins.