[Joint House and Senate Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
THE RULE OF LAW IN CHINA:
LAWYERS WITHOUT LAW?
=======================================================================
ROUNDTABLE
before the
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
APRIL 1, 2003
__________
Printed for the use of the Congressional-Executive Commission on China
Available via the World Wide Web: http://www.cecc.gov
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
House
Senate
JIM LEACH, Iowa, Chairman CHUCK HAGEL, Nebraska, Co-Chairman
DOUG BEREUTER, Nebraska CRAIG THOMAS, Wyoming
DAVID DREIER, California SAM BROWNBACK, Kansas
FRANK WOLF, Virginia PAT ROBERTS, Kansas
JOE PITTS, Pennsylvania GORDON SMITH, Oregon
SANDER LEVIN, Michigan MAX BAUCUS, Montana
MARCY KAPTUR, Ohio CARL LEVIN, Michigan
SHERROD BROWN, Ohio DIANNE FEINSTEIN, California
BYRON DORGAN, North Dakota
EXECUTIVE BRANCH COMMISSIONERS
PAULA DOBRIANSKY, Department of State*
GRANT ALDONAS, Department of Commerce*
D. CAMERON FINDLAY, Department of Labor*
LORNE CRANER, Department of State*
JAMES KELLY, Department of State*
John Foarde, Staff Director
David Dorman, Deputy Staff Director
* Appointed in the 107th Congress; not yet formally appointed in
the 108th Congress.
(ii)
C O N T E N T S
----------
Page
STATEMENTS
Feinerman, James V., James M. Morita professor of Asian legal
studies, Georgetown University Law Center, Washington, DC...... 2
Peerenboom, Randall, professor of law, UCLA School of Law, Los
Angeles, CA.................................................... 5
Purohit, Raj R.J., legislative director, Lawyers Committee for
Human Rights, Washington, DC................................... 9
APPENDIX
Prepared Statements
Peerenboom, Randall.............................................. 30
THE RULE OF LAW IN CHINA: LAWYERS WITHOUT LAW?
----------
TUESDAY, APRIL 1, 2003
Congressional-Executive
Commission on China,
Washington, DC.
The roundtable was convened, pursuant to notice, at 2:30
p.m., in room 2255, Rayburn House Office Building, John Foarde
[staff director] presiding.
Also present: David Dorman, deputy staff director; Tiffany
McCullen, for Under Secretary Grant Aldonas, Department of
Commerce; Alison Pascale, office of Senator Carl Levin; Keith
Hand, senior counsel; Selene Ko, chief counsel for trade and
commercial rule of law; Susan Weld, general counsel; and Andrea
Worden, senior counsel.
Mr. Foarde. Good afternoon to everyone. On behalf of
Chairman Jim Leach and Co-Chairman Chuck Hagel of the
Congressional-
Executive Commission on China, welcome to this issues
roundtable on the Rule of Law in China. The United States-China
Relations Act of 2000 created the Commission and gave it the
primary mandate of monitoring compliance with human rights and
the development of the rule of law in China.
Today we have as panelists three experts to give us their
opinions as to how to translate these abstractions into
pragmatic ways of evaluating the rapidly changing situation in
China. We also hope that they will be able to offer specific
suggestions as to what kinds of exchanges and cooperative
efforts might be most effective in encouraging the development
of the rule of law in China.
Our three panelists are Dr. James Feinerman, the James M.
Morita professor of Asian legal studies at Georgetown
University Law Center here in Washington; Randy Peerenboom,
professor of law at the UCLA School of Law in Los Angeles; and
Raj Purohit, the legislative director of the Lawyers Committee
for Human Rights. Both Jim Feinerman and Raj have been our
guests before in the 107th Congress at hearings and roundtables
of the Commission. So, welcome back. Randy, this is your first
time. Welcome, and thank you very much.
I think we will start with Jim Feinerman. And the way we
work this is that each panelist has 10 minutes to make an oral
presentation. After about 8 minutes, I will tell you when you
have 2 minutes remaining. If you for some reason aren't able to
make all of the points you would like to make, we can catch up
with some of them in the question and answer session.
When all three of the panelists have spoken, we will go to
questions and answers. In the first instance, calling on our
colleagues who are personal staffers to our Commission members.
In the second instance, to our own CECC staff colleagues,
including the person who organized this particular roundtable.
So, without further ado, let me call on Jim Feinerman.
Thank you.
STATEMENT OF JAMES V. FEINERMAN, JAMES M. MORITA PROFESSOR OF
ASIAN LEGAL STUDIES, GEORGETOWN UNIVERSITY LAW CENTER,
WASHINGTON DC
Mr. Feinerman. Thank you and thank the Commission and its
staff for having this session today, and inviting us to share
our views with you. I may have inadvertently set an agenda--I
hope not--for the rest of the speakers by sending out my paper
title, which is ``Lawyers Without Law--Prospects for the Rule
of Law in China after Deng Xiaoping.'' And I will try in the
time that I have to sort of summarize my points.
Those of you who are familiar with the literature of
Chinese legal studies of the last 25 years will know that I was
reversing the title of a famous work by Victor Li, a former
professor of law and president of the East-West Center in
Hawaii, who wrote a book during the Maoist era called ``Law
Without Lawyers.'' The thing that inspired me to twist Victor
Li's words--if that is, in fact, what I am doing--was that I
thought that circumstances had changed so dramatically since
the period that he wrote about when China boasted of having no
lawyers. Its legal system primarily consisted of using some
rather coercive, draconian methods that had the functions of
law to channel social behavior and control deviance.
I thought it was worth revisiting those ideas in the light
of what has happened in the intervening two and one-half
decades. When he wrote about Maoist China, Professor Li wanted
to make clear that there existed individuals and entities which
functioned like law and lawyers, despite the official lack of
formal law and legal institutions. Hence the title of his book,
``Law Without Lawyers.''
In the time that has passed since Li's book was published,
I think China has developed in ways that Victor Li himself
would not have predicted from the vantage point of the mid-
1970s. The death of Mao, the end of the Gang of Four, the
accession of Deng Xiaoping just a few years after his book was
published, in fact, and a reawakened interest in law or
socialist legality. An old Soviet era quip noted that socialist
legality has the same relationship to legality as an electric
chair has to a chair.
The law with Chinese socialist characteristics that has
emerged from that era, which began with a trickle of new laws,
including the first statutes that encouraged foreign investment
in China's socialist economy became a flood of code and
regulations today, even case law that is reported and available
to those of us in the West who a few decades ago would have
killed for even a single verifiable case report. The problem
that we used to have, like Soviet Union Kremlinologists of that
era teasing intellectual mountains out of informational molehills,
has been reversed. We are inundated with straightforward legal
information in almost unimaginable volume.
So that for those like Professor Peerenboom and I who try
to teach courses in Chinese law, the idea of having what we had
in law school, a single course in Chinese law and holding
oneself out as an all-purpose expert on every area of the
Chinese legal system, is impossible. It is necessary to
specialize in, at the most, a few areas and maybe even one area
as the field grows.
It is this very volume of legal information that is now
available about China's legal system that led me to think that
there maybe is actually less there than meets the eye. So,
turning Victor Li's formulation around with apologies to some
other legal specialists, like David Trubek and John Merriman,
who used this phraseology before, I would like to argue that
the ``Lawyers Without Law'' perhaps most accurately describes
the current situation in the People's Republic of China. Let me
just quickly say what I mean.
All of the trappings are visible. They have all the
accoutrements of formal legality that were not present before.
But, the crucial elements of a Rechtsstaat, a real rule of law,
a meaningful rule of law, I think are still missing. The
incidentals are there, but the substance is not. I think that
the operative rules of the system are still, in many cases,
buried elsewhere and not adequately described by the formal
legal system, which is what I set out in my paper.
In the end, I think you can manage to reconcile the view
that China has the embryonic beginnings of a legal system and,
in fact, has made great strides since the period that Victor Li
wrote about, and even compared to 10 years or 5 years ago. But,
you have to think about the relevance--or in some cases, the
virtual irrelevance--of law in the formal codified version to
make such a reconciliation possible.
I think that the real explanation of how China works and
what the state does with regard to legal matters is still
pretty much outside the formal legal system, although,
hopefully by iterating and reiterating the rule of law idea and
talking about law, eventually it may come to conform with the
reality on the ground. In a few sections, I try to deal with
various issues to see how law and practice demonstrate my
thesis, or rather how my thesis grows out of the evidence that
I have been looking at.
Finally, I look at the personal relationships or
``guanxi,'' which literally means connections in Chinese, for
an alternative system that more closely explains the operative
norms in Chinese society, the real law, but not the lawyers'
law. And so I will talk about just very briefly the couple of
things that I looked at in the system of foreign investment
regulation, where there is perhaps one of the largest bodies of
law, which is of great interest to foreign investors and to
people who are going to make significant contributions to the
economic development of Chinese society. Even there after two
decades, there are problems.
In fact, even today many investors rely on informal
processes of assurance by local officials, central officials
when necessary, to overcome various gaps in the legislation. It
is still the case that very often authorities will
retroactively revise legislation to assuage foreign investors
fears, or to address criticism and failed
policies.
Even during an era of greater openness--some of it mandated
by China's recent accession to the World Trade Organization
[WTO]--there is a continuing significance for so-called
``neibu''--internal or unpublished--regulations. Eventually,
these may all see the light of print, but it's a difficult
process to draw it out. In many aspects, foreign investment is
governed by rules that foreign investors themselves are still
not allowed to see, and just must accept as applicable to them.
My colleagues in the human rights field justifiably have
criticized China's use of the rule of law to try to justify
things such as the crackdown on the Falun Gong, which is part
of a broader governmental effort to control all organizations,
religious, civil, social, and economic. The use by these
organizations of modern means of communication such as the
Internet has made them especially threatening to the Chinese
authorities. The mechanisms that they use follow the principles
enunciated in China's Constitution, as well as a number of
lesser laws.
Amnesty International, Human Rights Watch, and the Lawyers
Committee have all made pleas for institutional reforms, which
I think are necessary in other areas, including criminal
justice. Every year hundreds of thousands of people suffer
human rights violations due to the lack of legal safeguards,
and the lack of independent bodies to prevent abuses, despite
the formalization in two rounds now--first criminal law and
then criminal procedure law, which were redrafted in the 1990s
and significantly expanded. The judiciary lacks independence
and continues to be subject to political interference. There is
evidence that torture is rife and because of the system of
administrative detention, anyone can be detained by the police
for a number of years without committing any crime.
I know you have heard previous testimony about the
implications for human rights and the rule of law of China's
HIV/AIDS crisis. We are now confronting a new threat of
communicable disease--SARS. And here again, the lack of
transparency and the fundamental issues regarding that in
China's system, which have obvious implications for law, also
implicate China's ability to operate with international
authorities. Indeed China kept the World Health Organization
[WHO] officials who were stationed in Beijing from going to the
sites of infection in China for some time, even after the
evidence of the outbreak was quite clear. Somewhat in
violation, I think, of China's commitments to that
international organization, and of course, at great threat to
the public health of
surrounding regions, and potentially the rest of the world.
Let me just close in the few moments that remain to talk a
bit about ``guanxi,'' connections. This is the substitute in
many ways for law, and some people say reflects the weak legal
consciousness on the part of the Chinese system, both among
ordinary individuals and high-ranking officials. But, I think
it also reflects the fact that many promulgated laws are not
widely publicized. Much of the Chinese population is unaware of
their existence.
Local cadres, on the other hand, are used to creating law
with the stroke of their pens, or even the utterance of a
single word. They have not been won over to a new system that
threatens their prerogatives and promises them very little in
return. And as long as the newly established legal
institutions--such as courts, and judges, and lawyers--remain
untried and underdeveloped, it is understandable that people
turn back to the things with which they are most familiar. And
the things with which they are most familiar are these
institutions of social connections. It is a complicated issue
in most societies and cultures, and it is particularly
complicated and highly developed over millennia in China.
So, let me just say in conclusion, that this basic feature
of personal relationships and connections between Chinese acts
as a kind of substitute. In fact, Mayfair Yang, one of the most
astute students of the institution of ``guanxi'' in modern
China, sees it as having a kind of oppositional character,
which explains its persistence, even in the face of law. It is
the informal organization's, or the powerless individual's
method of opposing or resisting formal organization. In many
ways the behavior posits as its goal, opposition to formal
organizations and even opposition to authority and law.
As a result, I think as long as the operative norms of
Chinese society and many different strata continue to be the
use of ``guanxi,'' there will be a continuing subversion of the
elaborate regulations and system of law that is being developed
on paper in the People's Republic of China. Now in the end, I
think that this can be overcome, as it has been overcome in
other East Asian societies, including some majority Chinese
societies on the periphery of mainland China. But, that is
going to be the real test. The rule of law is only an illusion
of wishful thinking that contradicts the central reality, I
think, of the last two decades of post-Mao China, until it
becomes clear that all of these institutions really function in
a meaningful way. And that's the test that I think the system
has yet to meet, yet to pass.
Mr. Foarde. Jim, thank you very much.
Let's go right on to Randy Peerenboom. Speak right into the
mike, and everything will be fine.
STATEMENT OF RANDALL PEERENBOOM, PROFESSOR OF LAW, UCLA SCHOOL
OF LAW, LOS ANGELES, CA
Mr. Peerenboom. I am very pleased and honored to be here
today. In these times of international conflict, the necessity
of developing a positive, peaceful, and mutually beneficial
relationship with such an important country as China, I think,
is obvious to us all.
However, if we are to develop that kind of relationship we
need to have a better understanding of how China sees its
position in the world and the challenges that it is facing in
developing its country and modernizing. Nowhere is this need
for understanding more apparent than with respect to the
implementation of rule of law, a notoriously contested concept
here in the United States and elsewhere in the world.
So let me begin, then, by defining some terms in order to
clarify some areas of agreement and disagreement. I think it
will also put some of Jim's comments in context, because I
think he raises issues that point to very different kinds of
concerns. So let me take it from there.
Conceptions of rule of law generally come in two varieties.
The first kind is a ``thin'' conception that stresses the
formal or instrumental aspects of rule of law, those features
that any legal system allegedly must possess to function
effectively as a system of laws, regardless of whether that
legal system is part of a democratic or nondemocratic society,
capitalist or socialist, liberal or theocratic. Although there
is some disagreement about these terms, there is considerable
overall agreement about most of the key features. They include
that laws be general, public, prospective, clear, consistent,
stable, impartially applied and enforced.
Now some of Jim's comments go to these types of concerns.
For example, the lack of public availability of laws. There are
still some internal regulations. However, China has made
tremendous strides in these areas having to do with a thin
theory of rule of law. There is a clear desire to have greater
compliance in those areas for many reasons. To the extent that
there are failures, they are generally due to institutional
obstacles. There are not political obstacles to these things in
most cases. China just doesn't have the institutional ability
to do it. They are working on it and they are improving
tremendously in most of these areas.
In contrast to thin conceptions, ``thick'' or substantive
conceptions begin with the basic elements of a thin conception
of rule of law. But then they incorporate elements of political
morality, such as particular economic arrangements, free market
capitalism versus central planning or some type of more Asian
development model; forms of government: democratic versus
single-party socialism; and conceptions of human rights:
liberal versus more Asian values, or more community-oriented.
So thick theories of rule of law then can be further
divided according to these different substantive political
philosophies that they are based on. The foremost common
conceptions in China, that is the foremost common thick
conceptions of rule of law are statist socialist, favored by
the government; neoauthoritarian; communitarian; collectivist;
and liberal or liberal democratic.
Now we in the United States, of course, are most familiar
with liberal democratic version of rule of law. Liberal
democratic rule of law incorporates free market capitalism;
multi-party democracy, in which citizens may choose
representatives at all levels of government; and a liberal
interpretation of human rights that gives priority to civil and
political rights over economic, social, cultural, and
collective or group rights.
In contrast, Jiang Zemin and other statist socialists
endorse a state-centered socialist rule of law defined by a
socialist form of economy, which means greater public
ownership--although, that is changing rapidly--a non-democratic
system in which the Communist Party plays a leading role, and
an interpretation of rights that emphasizes stability,
collective rights over individual rights, and subsistence as a
basic right, rather than civil and political rights.
If you look at Falun Gong in terms of this framework, you
see that it is not simply a problem of compliance with a thin
conception of rule of law. Although there are procedural
violations of rule of law, there is also disagreement about the
fundamental substantive norms. How should individual rights be
interpreted? What should the limits of civil society be, and
how should free speech be weighed against other interests, such
as social stability and so on?
There is also support for various other forms of rule of
law that fall between the statist socialist type championed by
Jiang Zemin, and the liberal democratic version preferred in
Western countries. There is some support for a democratic but
nonliberal communitarian variant built on market capitalism,
perhaps with a somewhat greater degree of government
intervention than in the liberal version, some genuine form of
multi-party democracy, plus a somewhat more communitarian
interpretation of human rights that doesn't privilege the
individual at the expense of the collective as much as some
liberal democratic countries do.
A final variant is a neoauthoritarian or soft authoritarian
form of rule of law that like the communitarian version,
rejects liberal interpretation of rights, but, unlike its
communitarian cousin, also rejects democracy. Whereas the
communitarians would have a genuine multi-party democracy,
neoauthoritarians permit democracy only at lower levels of
government, or not at all. Pan Wei, a prominent Beijing
University political scientist, for example, has advocated a
consultative rule of law that eschews democracy in favor of
single-party rule, albeit with a redefined role for the Party,
or no role for the Party with different leaders in place, but
still not a democracy. He also advocates more extensive rights,
freedoms of speech, press, and association, but still limited
compared to what would be offered in a democratic society with
more emphasis on strengthening the state and balancing the
rights of the individuals against the interest of the majority.
A full elaboration of these various types would obviously
require greater detail in terms of the purposes and goals the
regime is intended to serve, and its institutions, practices,
rules and outcomes. I have done that in this recently published
book, ``China's Long March Toward Rule of Law.'' Cue, Susan.
[Susan holds up book.]
Mr. Peerenboom. Very good. Thank you. Nevertheless, this
preliminary sketch is sufficient to make the following points.
Despite the variation, all forms accept the basic benchmark
that law must impose meaningful limits on the rulers and the
state, and all are compatible with a thin conception of rule of
law. Put differently, thin conception provides the minimal
threshold criteria for any version of rule of law.
Predictably, as legal reforms have progressed in China, the
legal system has converged in many respects with legal systems
of more well-developed countries. It is likely to continue to
do so, particularly with respect to these kind of basic
institutional features. Second, at the same time, there is
going to be some variation in the rule of law regime in China
even with respect to the basic requirements of a thin
conception due to the context in which the system is embedded.
So, for example, you will have differences in the
administrative law regime with respect to the discretion
afforded government officials and the mechanisms for dealing
with abuse. There may also be differences with respect to the
amount of judicial independence and the forms that judicial
independence takes in China.
So, whether you see convergence and divergence is
ultimately to some extent a function of focus. How closely are
you going to look? There is going to be broad convergence, but
still divergence in
important respects.
Third, when claiming that China lacks rule of law or that
it falls short in terms of implementing rule of law, often what
is happening is people are comparing China's legal system to a
very particular conception of rule of law, the liberal
democratic one. Since China does not intend to implement that
particular version, it is not a surprise that they are falling
short by that benchmark. But, that assumes certain normative
issues that need to be debated. Although a handful of legal
scholars in political science living in China or living abroad
have adopted a Western-style liberal democratic rule of law,
there is generally little support for liberal democracy, and
hence, for liberal democratic rule of law among either the
leaders or the people in China.
So, if we are going to understand the likely development of
rule of law in China, we need to re-theorize the notion of rule
of law and understand what others mean by that, to avoid simply
imposing our own views on things, and then either
misinterpreting what is going on in China, or missing
opportunities to develop it in ways that are consistent with
what we would like to see.
What I then look at in the rest of the comments that I will
submit for the record are, given that China is trying to adopt
a nonliberal version of rule of law, does it make sense for
liberals to support rule of law? And, I argue that even though
the law and development movement in the 1960s and 1970s failed
in the eyes of many people because legal reforms were not
matched by greater public participation and democratic reforms,
ultimately, looking back at it now 30 years later, legal
reforms still did impose limits on the government and overall
were still a good thing.
When you look around Asia, often even under authoritarian
regimes, legal reforms pave the way for future political
reforms. Then once the regime did change, becoming more
democratic, many of the institutions were in place, more
developed, and were able to play the role that they need to
play in a democratic society.
So, despite these differences, it still makes sense to
support legal reform changes and rule of law development in
China. How do we go about doing that? How do liberals then most
effectively pursue their normative agendas and also the broader
agenda of rule of law? Well, you can focus on many of these
kinds of technical changes and institutional developments that
are to some extent ideologically neutral, the elements of the
thin rule of law that I was talking about. And, of course, you
can also continue to have discussions about the larger,
normative issues and the values of your particular version of
rule of law and try to persuade both Chinese leaders and the
general public as to the attractiveness of that particular
approach.
[The prepared statement of Mr. Peerenboom appears in the
appendix.]
Mr. Foarde. That's great. Randy, we are going to have to
leave it there, but we'll come back to other points in the Q
and A, if you please.
Raj Purohit, please.
STATEMENT OF RAJ R.J. PUROHIT, LEGISLATIVE DIRECTOR, LAWYERS
COMMITTEE FOR HUMAN RIGHTS, WASHINGTON, DC
Mr. Purohit. Since 1978, the Lawyers Committee for Human
Rights has worked in the United States and abroad to create a
secure and humane world by advancing justice, human dignity and
respect for the rule of law. We support human rights activists
who fight for basic freedoms and peaceful change at the local
level, protect refugees in flight from persecution and
repression, promote fair economic practices by creating
safeguards for workers' rights, and help build a strong
international system of justice and accountability for the
worst human rights crimes. We continue to consider human rights
conditions in China to be an issue of deep concern.
We last testified before the Congressional-Executive
Commission on China in March 2002 at a hearing entitled ``Human
Rights and the Rule of Law in China.'' We used that testimony
to note that China had secured a prominent position in the
international arena, symbolized by its admission to the WTO,
its successful bid to host the 2008 Olympics and what at the
time was the recent visit of President Bush.
We also noted that this has not been accompanied by a
parallel improvement in human rights. Instead, government
statements about upholding the rule of law have frequently
veiled harsh political repression. This is most poignantly
illustrated by the ``Strike Hard'' campaign, which resulted in
scores of executions after procedural and substantive abuses of
criminal law.
And as you noticed in yesterday's released State Department
Country Reports, there was a reference to the more than 4,000
people in 2002 who were reportedly executed as part of the
``Strike Hard'' campaign during that year. So, it has been
worth looking at that report.
The Lawyers Committee has welcomed positive developments in
the Chinese legal system over the past few decades. However,
continuing violations illustrate that a strong legislative
framework cannot be itself secure the rule of law. It is
necessary to enforce this legal framework in practice. To do
that, we have recommended that China needs to build a strong,
independent legal profession.
I would like to flag our last submission for the Commission
once more. In it, the Lawyers Committee highlighted its
concerns about the continuing persecution, threats, and
harassment suffered by lawyers who confront common injustices.
I would also encourage the Commission to look at our report
from 1998, ``Lawyers in China: Obstacles to Independence and
the Defense of Rights,'' in which we addressed this and related
issues. In the report, we note that it is essential to bring
Chinese law and practice into full conformity with
international standards and thereby to build lasting structural
guarantees for the protection of human rights. The process by
which this is accomplished cannot be dictated by outsiders. The
main impetus for legal reform must come from within. Yet there
is a great deal that those outside China can do if they have a
solid grasp of both the extent of human rights violations in
China and the legal context in which they occur. Unfortunately,
many of the problems described in that report continue to be
matters of
concern today.
At this time, I would like to shift gears and address the
impact of the September 11 terror attacks on New York and
Washington on the promotion and implementation of human rights
in China. In two recent reports, ``A Year of Loss'' and
``Imbalance of Powers,'' the Lawyers Committee has noted that a
significant number of governments have attempted to co-opt the
war on terrorism, expressing support for U.S. measures, while
simultaneously labeling domestic opponents members of terrorist
groups. Leaders who were once criticized and marginalized in
the global community for human rights abuses have been
rehabilitated as key U.S. allies in the war against terrorism.
In still other countries, repressive new laws and detention
practices have been introduced, broadly justified by the new
international climate.
China moved quickly to link the broader war against
terrorism to its own campaign against separatist Muslims in the
province of Xinjiang, a vast region with a mostly Muslim
population. In the past, the United States has criticized China
for human rights abuses against Muslims in this area.
Now, China is eager to draw a parallel between its
crackdown on separatist groups and the United States' battle
against al Qaeda. In a recent visit to Washington, DC, as you
all are aware, the Chinese Vice Foreign Minister remarked that
China, too, is a victim of terrorism and greatly understands
and sympathizes with the disaster that Americans have suffered.
Although the Bush administration was initially reluctant to
link the separatist issue in China to its war on terrorism, in
August 2002, the State Department listed as a terrorist
organization an obscure group from the region that China claims
has ties to al Qaeda. I think the Council on Foreign Relations
took this issue up
recently.
In a series of speeches over the last few months, Attorney
General Ashcroft has participated in this rehabilitation. In
commenting on the close relationship between the United States
and China, among others, in the war on terror, the Attorney
General has commented that the gulf between nations now
separates those devoted to the rule of law from those devoted
to the tyranny of terrorism. It is the divide of civilization
versus chaos.
He has quoted the President as saying this is the fight of
all who believe in progress and pluralism, tolerance and
freedom, adding that progress and pluralism, tolerance and
freedom only flourish in rule-of-law, rather than rule-of-
terror, environments.
There is no doubt that terrorism is the antithesis of human
rights. And it is clear that international human rights law
makes plain that governments are obligated to protect their
citizens from such criminal activity. However, it is also
apparent that innocent civilians are becoming casualties of the
international campaign against terrorism.
U.N. Secretary-General Kofi Annan, among many others, has
made it clear that there must not be a tradeoff between human
rights and fighting terrorism. In a recent speech, he stated
that ``I firmly believe that the terrorist menace must be
suppressed, but states must ensure that counter-terrorist
measures do not violate human rights.''
With this in mind, it is fair to say that the comments of
the Attorney General are a cause for concern. In a number of
different issues, questions of regional autonomy, labor rights,
the creation of an independent legal system, access to the
Internet--the Chinese Government continues to harshly crack
down on those seeking greater individual freedoms under the
guise of upholding the rule of law. In fact, as was mentioned
earlier by Jim Feinerman, the Amnesty International report on
the Internet documents how laws have been passed and put onto
the books in China that really have cut down on the ability for
individuals to legally get access the Web. In some papers that
I will include in my written submission, you will notice that
the Chinese Government has pushed back against labor organizers
and leaders in a number of different provinces, technically
speaking, within the legal framework that has been created.
The U.S. Government, both the executive and congressional
level, should communicate to the Chinese authorities that
actions such as these are not those of a country that believes
in progress and
pluralism, tolerance and freedom. The Congressional-Executive
Commission on China has a key role to play in ensuring that the
Chinese Government is aware that U.S. Government officials are
closely watching to ensure that in deed as well as in word that
the rule of law is promoted, protected and advanced in China.
I wanted to quickly turn to a few recommendations that we
have, and I will include these in the written submission. The
Lawyers Committee believes that it is important to recognize
the educative guiding role that can be played by foreign
governments, human rights groups, law schools, bar
associations, and other international actors in the development
of law in China. Underlining the position of China as a
prominent member of the international community, efforts should
be made to ensure the continued involvement of these foreign
actors.
The Chinese Government should fully comply with the
provisions of the U.N. Basic Principles on the Role of Lawyers,
and to revise those aspects of Chinese law that restrict the
ability of lawyers to fully represent their clients and to
organize independent bar
associations. Lawyers should be free to carry out their
professional duties without official interference,
restrictions, threats, or intimidation.
Particular assistance should be provided to the training of
lawyers, both in China and abroad. Training programs should be
designed to fit China's particular conditions and needs. The
exchange and sharing of relevant information should be
stimulated. Assistance should also be provided to China's law
schools for the design of courses and teaching methods. Bar
associations and the Chinese Ministry of Justice should be
engaged to create mechanisms that ensure the adequate
protection of legal practitioners. At the same time to promote
high professional standards, these institutions should be
encouraged to publicize and facilitate the rights of clients to
bring malpractice suits in the belief that these will encourage
lawyers to seriously consider their professional
responsibilities. Finally, assistance should be provided to
train and sensitize the relevant branches of government of the
importance of the lawyer within the legal system. Thank you.
Mr. Foarde. Raj, thank you very much.
We are going to go on to the question and answer session.
But before we do, let me invite the folks who are standing over
there--there are seats on this side of the room if you would
like to come over. You can come around in front if it is more
convenient. Just watch your step.
We are going to proceed with the question and answer
session as we have in the past. Each of us will have 5 minutes
to ask a question and hear the answer, either of a specific
panelist or the whole panel, and then we will move on to our
other colleagues until everyone has had a chance to ask at
least one question. We understand that Raj may have to go in 25
minutes or so. When you have to go, go with our thanks. We hope
we can ask a question or two before you do that.
So, let me start by asking Jim Feinerman, one of the things
that we have been hearing over and over again--and in fact, we
had it in our report last year--is the big gap between the laws
on the books and the law in practice. Are there specific
mechanisms that the United States can use to have influence
over, either through programs, training, pressure, or whatever
it might be, to make it easier to narrow that gap between the
laws on the books and the laws as they are actually in
practice?
Mr. Feinerman. Well, I think there are probably three very
direct things that the United States can do to try and effect
that. First, I say that in those cases where there is a direct
conflict between the United States and China about
implementation of law--say for example, China's undertakings
and commitments with respect to the WTO, which are increasingly
going to become forceful in China's accession, to make it clear
that we are going to insist on those things being complied with
to the letter, and not, as the Chinese authorities have sort
of--with a wink and a nod--expected in the past. That they will
be cut some slack and that understandings will be made with
regard to maybe less than full implementation.
On a very different note, though, I would say that there is
also something which--in the current circumstances, I am a
little reluctant to say this as forcefully as I might--but, I
think the United States also needs to lead by example. That is,
if we are going to preach the rule of law to China and to other
countries around the world, we have to abide by it ourselves.
And I won't take a position with regard to international law
and the current war in Iraq.
I think in many other areas, there is the sense that, for
example in the WTO, the United States has preached a free trade
regime to the rest of the world and then imposed quotas on
foreign steel. We were just the losers in the first round of
dispute resolutions there, in that particular regard. How we
then react, what we do in our own legal order to show that, we
are going to play by the same rules that we expect other
countries to play by in many different dimensions, I think is
also important.
And finally--and I should have mentioned this in my opening
statement--I do believe that there is a role to be played for
precisely the kinds of programs that my colleagues on this
panel have suggested. And I just focus on three very practical
things that we can do. One is that we can continue a program
that was previously funded for almost 15 years by the Ford
Foundation, to ``train the trainers.'' In addition to the
lawyers and judges, who I think need everything that has been
suggested and probably more, it is very clear to me that one
thing that we are missing out on--particularly in comparison to
countries in the European Union and Canada--is training a new
generation of Chinese legal academics whose effect will be
magnified when they teach their students at the burgeoning law
faculties of China.
The Ford Foundation Program was done at a time when there
were only a handful of leading legal education institutions.
There are many more now. And it is also already almost 20 years
ago that the program started. So, a whole new generation has
come of age, and they haven't had the same opportunities to
study in U.S. law schools, to have training programs in China
that are sponsored by U.S. institutions and that will
inevitably reflect U.S. legal
values.
I would also add that I think training programs
particularly
focused on the bench, the judiciary--some of which are modestly
underway--should be greatly increased. Particularly in those
areas where we would like to have the impact in say, criminal
justice, or in things that are related to international trade.
The Chinese courts are conveniently organized into separate
chambers to deal with particular legal matters so that it is
possible to target the attention, rather than training judges
who have a more general jurisdiction.
And lawyers, of course, also increasingly need this kind of
attention. I think it needs to go beyond what already exists.
There is considerable discussion already in regular meetings,
as well as events between bar associations. I worry that a lot
of that tends to be of a very formal and not necessarily
substantive sort. I think that we can use the resources of the
organized American bar and state and local bars as well to
provide a much more substantive and targeted training for
lawyers in particular areas that would be much more
advantageous than having, you know, 3-day annual meetings where
hundreds of people come together. Those have their value, but I
think that there is a way of having a greater
impact.
Mr. Foarde. Very useful, Jim. Thanks very much. Let me
recognize my colleague, Dave Dorman, who works for Senator
Chuck Hagel and is deputy staff director of the Commission.
Dave.
Mr. Dorman. First of all, I would like to thank each member
of this very distinguished panel for taking the time to speak
to us today and educate us on this important issue, and I think
an issue that is complex and sometimes difficult to understand.
I would like to ask--I think it is important for the
Commission members to understand--each of you in one way or
another have discussed the accelerating appearance of new laws
in China, and the growing dialog on the rule of law in China. I
wonder if you could comment on the extent to which these new
laws and this dialog have, in fact, to date placed any
meaningful limits on the arbitrary exercise of power in China?
This is part of what Professor Peerenboom has described to us
as the development of a thin rule of law in China. Phrased a
different way, I believe Professor Feinerman called it an
embryonic system of rule of law in China. To what extent is the
development of that system dependent upon the preferences of
the leadership? Any member of the panel who would like to
address that, I would appreciate it.
Mr. Purohit. Yes. I think there is no doubt that the legal
system and the political process are very much connected. But I
think that nevertheless, we should recognize the fact that this
requires dual
approaches, with engagement at a political level to suggest the
standards and the benchmarks that go with being an integrated
member of the international community, and I think, the second
component, the actual working with the practitioners, the
professors, et cetera as a two-step piece. So, I agree with
Jim's comments. But I was thinking back to a conversation I had
with a colleague who recently spent several months in China
teaching a number of human rights professors at Beijing
University about the basic nuts and bolts of international
human rights law and was invited to go back for a year. That's
a very small thing, but if we can have those types of things
coupled with engagement at a political level to say you can't
simply just pass rules and regulations, et cetera, saying that
you can't have access to these Internet sites and you can't
organize this way and that way. I think you need to have both
things working. That's where the Commission comes in with that
ability to engage at the political level and then to also
assist to facilitate the educational component as well. So, I
think it's a two-track
approach.
Mr. Feinerman. I think there is no doubt that the changes
in the last few years, economic, political, and legal have
reduced the arbitrariness of the government and have reduced
the impact of
government on people's lives. So, in general, political and
economic reforms have simply freed up people from the kind of
supervision of the work unit, because now they are just not
dominated by the work unit. Their decision when they are going
to have a kid, or where they are going to get their birth
control is no longer determined by their work unit.
So, in general, those sorts of trends have reduced the
intervention of government in daily lives and therefore, the
opportunities for arbitrary acts of the government. All of that
is for the good. Specifically, with respect to the legal
system, the development of an administrative law regime has
greatly curtailed the ability of the government to act in
arbitrary ways.
Now it is true that it's a very weak system at this stage
for many reasons. Some cultural reasons that people are afraid
to challenge the government. Some that are typical everywhere.
If you are doing business with the same government entity over
and over again, you don't challenge them because you don't want
to be retaliated against.
There are also fears of--there are also problems with
institutions that lack adequate independence because they are
funded by the local governments; the courts lack independence
because they are funded by the local governments. Judges are
appointed by local officials. So, that is an institutional
feature that needs to be changed before the administrative
litigation will be successful. Administrative reconsideration
could be improved by having more independence of administrative
law judges to whom supervision committees could report.
So, all of these mechanisms for challenging arbitrary
government acts can be improved. These are areas where foreign
countries have the expertise, have the experience, and can
bring it to the table and help China benefit because they want
to improve these systems as well. Particularly some of the
civil law countries, because some of these institutions are
modeled on the civil law countries.
Another area where that has helped limit arbitrary action
is recent changes that have reduced the number of approvals
that are required, for example, for doing business. There is an
attempt to pass a licensing law and to deregulate to some
extent or to make licensing more efficient. One-stop shopping.
All of this, again, is meant to limit arbitrary action.
It is true that there are still many areas that are very
weak, but you also have to look at the particular areas in some
cases and analyze the problems. For example, many of the
criticisms are focused on the criminal system. Some of the
reasons why the criminal system is particularly weak in China
is that many of the rights that are provided by law are not
actually implemented. The gap is particularly large because
there is very little support among the members of the public
for criminal law reforms. They don't see it as in their
interest. They want to be tough on crime. They overwhelmingly
support the government's ``Strike Hard'' campaigns, 80 to 90
percent of the people, despite the fact that China executed
more people in 3 months than all of the other nations in the
world did in 3 years. Most people, 99 percent of the people, in
fact, think capital punishment is necessary in China. Twenty-
two percent think there should be more. So, given that kind of
environment, it is very difficult to achieve meaningful reforms
in the criminal law area without educating the public about the
relationship between capital punishment and deterrence, for
example. Is there or is there not any deterrent effect? And,
also what are the alternatives to harsh punishment? Perhaps it
will have some effect.
Another way of dealing with the situation is focusing on
particular institutions. The police are most involved in the
criminal area. They are also responsible for many of the
abuses; much of the torture is at the hands of the police,
obviously. Part of the reason for that is they lack the
forensic tools to investigate crime. So, this is another area
in which many other governments are not working with China to
address the situation by providing them technical skills and to
some extent, some of the resources to deal with criminal
investigations without relying on torture. So, again, there are
many opportunities for collaboration on specific issues.
Mr. Foarde. Thanks very much. Let's go on and give a chance
to some of our colleagues here on the staff to ask some
questions. I would recognize Tiffany McCullen, who represents
Under Secretary of Commerce Grant Aldonas, one of our
Commission members.
Ms. McCullen. Thank you, John. Actually, I would just like
to thank the panelists for the useful information they are
imparting to us today. Actually, Randall answered my question
when he did his response. Thanks, John.
Mr. Foarde. Then it is my pleasure to recognize Alison
Pascale, who works for Senator Carl Levin of our Commission.
Ms. Pascale. Thank you. I wanted to ask you what you think
the impact has been of China's WTO membership. Many people
argued at the time that allowing China into the WTO would force
them, at least in the economic arena, to abide more by the rule
of law. And we have seen some liberalization in terms of the
rights of the individual in China, and their ability to
challenge certain economic wrongdoings. For example, if the
government took possession of an individual's property, they
may be able to successfully challenge the government. Have you
seen that translate into other arenas such as in civil cases or
human rights cases? And also, I wanted to know, what impact
corruption has on the ability to develop rule of law in China?
I would like to hear your comments on that, any of the panel.
Mr. Feinerman. Well, I will try and answer a couple parts
of that. I don't know if I can answer everything. On the WTO
side, I would just mention that I've been part of a group
working with the World Bank to study the effects of China's
accession to the WTO, and the thing I am working on
particularly is the central-local relations problem. And I
would just say as a very broad, general matter that although
the central government, particularly the Ministry of Foreign
Trade and Economic Cooperation--which has just been merged into
a new Ministry--has been very diligent. They tried to get ahead
of the curve. They really--not only in the legislation, but
actually in the practical enforcement, I think--went well
beyond what China's preliminary undertakings were in the
initial protocol of accession.
But the problem in China is the multi-level government
process by which WTO undertakings are actually enforced. And
from the grassroots up, they are still a very serious problem.
It particularly affects certain industries, for example, the
automobile industry, which I know your member is quite
interested in. Because there is a strong local interest in
particular economic organizations, part of the heritage of a
Maoist kind of economic autonomy, where every province had its
own factories to do every part of the economic
universe.
As a result of that, there is still a great deal of local
protectionism. There is a great deal of obstruction at the
local levels, despite a State Council ban that came out in
advance of China's WTO accession to try and end these
practices. They persist. And I think it is going to be a very
long row to hoe with respect to those aspects of local
protectionism.
The point about corruption--I think here there is good news
and bad news. The good news is that there is a great deal of
attention being paid at highest levels to corruption. There
have been people who were previously considered untouchable,
who 5 or 6 years ago would not have been prosecuted or would
have been just quietly edged aside and allowed to go into a
kind of retirement or maybe house arrest, who are now being
prosecuted.
The bad news is the prosecutions usually impose the most
draconian penalties, including things like the death penalty,
for embezzling large sums of money. So, from a human rights
perspective, it is a good idea that corruption is wiped out
across the board, and it will improve the overall operation of
the legal system. The means that are being used to do it,
however, create their own problematic elements. Aside from
that, they may make certain people reluctant to use the overall
process because of the very severe penalties that are imposed.
There is also an interest in what seems to be emerging as a
slight backlash. There is a story in one of China's liveliest
newspapers, Southern Weekend, about a local government official
who was brought up under these administrative provisions that
Professor Peerenboom mentioned, who then decided to counter-sue
his accusers. It is an interesting question that China's legal
academics are debating, and this is being widely reported, at
least in the popular press in China--it hasn't made it into the
legal press yet--about just what the attitude should be. Is
this a good thing or a bad thing.
Should people who may be unjustly accused of official abuse
be allowed to take on their accusers? Or should public figures
who, you know, exercise a kind of public trust be subject to a
special kind of discipline, and be--as they are under our
defamation laws in the United States, for example--unable to
pursue defamation or libel actions against people who bring
charges against them. These things are all just beginning to be
worked out in China today.
Mr. Peerenboom. On the WTO question, I think there have
been very interesting developments because the argument was WTO
would lead to liberal reforms, or strengthen the hand of
liberal reformers. One thing that we have seen in China is that
many of the reforms have gone well beyond what is required by
WTO, but, people have invoked the WTO to support them.
One example is making it easier for China's citizens to get
passports. The WTO has nothing to say about whether Chinese
citizens can get passports and what the requirements are. But
when they made the regulations easier, their rationale was that
this reform is necessary because we have now entered into a
more global economic arena and Chinese citizens and business
people should be able to compete on easier terms. This reform
facilitates that goal.
A more significant example is what I was talking about
earlier. It's the fundamental change in the conception of the
approval process and the government's control. Up until now,
the government has tried to control all business activities.
And now they are backing away from that, trying to leave the
market to take on more of the regulatory functions, and
discipline wayward actors, rather than the government
monitoring them. But, even when there is going to be approval,
they are trying to make it more efficient--now this is an
example of a ``spill-over'' effect because this helps not only
foreign companies, but domestic companies as well. Anybody
doing business in China benefits from this kind of regulatory
change.
In general, WTO has reduced the differences between the
domestic economic regime and the foreign economic regime,
sometimes to the disadvantage of foreign investors who had
preferential treatment and no longer have it, but generally to
the benefit of both sides of the equation.
WTO has also resulted in considerable institution building,
which again, has ``spill-over'' effects into all areas of law.
As you raise the level of professionalism of the courts, the
competency of judges, that affects all the types of cases that
they handle. The deregulation issue that I just mentioned also
goes to the issue of corruption, because one of the main ways
of reducing corruption is by depriving rent-seeking government
officials of the opportunity to have any discretion over
decisions. And by changing that, they cut the legs out from
under them.
Needless to say, these changes meet with resistance. They
meet with resistance by rent-seeking officials who are paid
very low salaries and like the corruption, and also the WTO
changes meet with resistance by certain industry players who
are going to lose. So, you can expect to see political pressure
on government actors to protect them through various forms,
just as in every other situation where countries try to
circumvent the WTO rules to protect certain industries.
Finally, on this issue that Professor Feinerman just
mentioned about defamation, this is very interesting
development because it could be the beginning of a very
negative trend. As you know, in Singapore and Malaysia, the
government has used the legal system to attack political
opposition figures. That has not happened in China. They've
used the legal system to attack dissidents, but they haven't
used defamation laws as a way of curtailing free speech. So, we
don't want to see that happening.
Mr. Foarde. Very useful. Thank you. Let me recognize Susan
Roosevelt Weld, the general counsel of the Commission.
Ms. Weld. I am always interested--in many situations the
rule of law seems to be imposed from the top. The government
decides that rule of law is a good thing, sometimes because of
pressure from outside, in the case of WTO, or from global
pressure of different kinds. What are the ways in which rule of
law is fostered inside China from below? I'm thinking of those
multitudes of social statutes which guarantee disabled people
equal rights, elderly people a means of subsistence, workers in
the workplace a safe and healthy workplace. How do they
actually make those things become real for them under China's
rule of law system?
Mr. Feinerman. Well, I think there are a couple of things
to keep in mind. One, the administrative litigation system that
Professor Peerenboom mentioned earlier is something that has
been invoked by tens of thousands of Chinese, in many cases
with the individual citizen claimant winning suit against the
local government official. So, it is one of the most important
ways in which--a full range of official misbehavior receives
legal administration. That can be used for local government
officials who don't do what they are supposed to do, who don't
give you the benefit that you are supposed to get under the
locally applicable statutes.
The fact that people now--because it has been publicized
for over a decade--know about the availability of this and are
increasingly willing to use it, putting the lie to what some of
us learned in law school that the Chinese were a non-litigious,
compromise-seeking people who would never go to court, even if
the opportunity were offered to them. It is quite clear that
once the institutions are constructed, it is sort of a ``Field
of Dreams'' approach, ``if you build it, they will come.'' And
they have come in droves to use that law.
As these things are refined and expanded, and particularly
some of the things that were also mentioned, such as the
administrative supervision and compensation laws, are fine-
tuned, then I think it will be possible to even further expand
them. On the other hand, I don't want to oversell the impact of
this. I believe it is still the case that in many localities,
local bureaucrats rule with an iron hand, that local
populations or individual workers in a particular factory, for
example, may feel justifiably reluctant to exercise the legal
rights that they have on paper, and that there will be severe
penalties for pushing too hard against the system.
I think that what the higher level leadership can do to try
and break through this is to continue to publicize, in the
various media that are available to them, those breakthrough
cases and encourage other people to do likewise. But they have
a countervailing impulse, which is to try and keep the lid on
social order. When you see the many places in China, for
example, over the last couple of years where workers have begun
wildcat strikes and virtual riots because of layoffs or because
of unpaid wages and benefits, it is clear that the local
officials may face very difficult prospects. Some of it,
ironically, is actually exacerbated by economic reform and WTO
accession.
Mr. Peerenboom. I think the ability of the legal system to
affect social justice and deal with many of the most pressing
social/economic problems in China is very limited. It is
limited by the political reality and by the lack of resources.
The central government simply doesn't have the resources, and
local governments under economic reforms that are responsible
for delivering on the social services don't have it. They don't
have the resources. They can't pay for it, and that leads to
demonstrations.
Local government officials are assessed on the basis of
economic growth and the ability to maintain political order.
So, they don't want to see demonstrations, but they can't stop
them from happening, because they just don't have the resources
to pay off all of the pensioners and all of the laid off
unemployment claims that are arising.
So, I just think a legal system in that environment is
subject to overly-great expectations. I think this is in
general a problem that many people now are looking to Chinese
legal institutions to deliver social justice. The legal system
is just not sufficiently strong, or institutionally capable of
doing that, first of all. Second of all, popular expectations
are just too inflated. No legal system can solve all of the
social and political problems of the country. And people are
going to court with these inflated expectations that everything
has a perfect ending, a legal solution. And it just doesn't.
Sometimes they need to press their claims in other arenas,
political and so on, rather than through the courts.
Finally on this issue of whether reforms have been top-down
or not, I would say nowadays the government is hanging on by
its fingernails as the reforms come percolating up to the top
for the most part. Many of the most important changes are
coming from local governments and local actors who are
responding to real problems. For example, in the criminal law
area, they don't have enough judges--given the rise of crime
and the number of cases--to actually process them. So, they
started developing summary procedures, completely outside the
Criminal Procedure Law, but just in response to a practical
problem that gets pushed up to the top. Now there is a central
level regulation, basically codifying that kind of change
toward summary procedures. So much of the change is really
happening in that way. People on the ground are trying to
address real problems, and then sending their solutions up to
the top. The top level then looks around, says ``This is the
best solution we have so far, let's go with it.''
Mr. Foarde. Thank you both. Let's go to Keith Hand, who is
senior counsel on the Commission. Keith.
Mr. Hand. A question for both of you. As the Commission has
gone forward in its work of developing recommendations and
policy ideas for enhancing rule of law in China, some critics
have argued that rule of law funding for programs involving
conservative institutions in China, such as the Public Security
Bureau, merely strengthens the pillars of authoritarianism in
China. How would you respond to that assertion? If you
disagree, how can these types of programs be most effectively
structured to achieve the objective of enhancing rule of law,
however defined?
Mr. Peerenboom. Well given my comments earlier, I think
that basically the long run benefit is in strengthening these
institutions and anything that promotes rule of law under
whatever thick conception you accept as good. To put it very
simply, would you rather be in an authoritarian state with rule
of law, some rule of law or none? Basically, in China you are
better off now than you would have been in the Mao Zedong era.
So, although there are concerns that by working with some of
the more conservative forces you may be strengthening the
state, I think they can be easily overstated. For the most
part, there are other people working in the system that will
ensure that the strengthened institutions are also working in
the direction and for the protection of individual rights,
including members of the international community, human rights
organizations, and Chinese academics.
So, I think that, in particular, the police and the
procuracy are two organizations that are just calling out for
more attention. The procuracy is particularly ripe, because the
head of the procuracy at present is a very reform-minded
individual who is looking at systemic change. The whole role of
the procuracy, as you know, is changing. They've moved from
essentially a organ purely of the state to crack down on crime
to a adversarial system where the procuracy's role, has to
change to some extent. The procuracy is grappling with that
change. How do they conceive their new role, and then how do
they most effectively implement it?
A more difficult organ to work with is the Public Security
Bureau or the police, simply because police work is so
localized. If you go to the procuracy, you can work with the
Central Procuracy Training College. They can develop materials.
They can have distant learning programs. All of these things,
the procuracy is now talking about. But when you go to the
police, it is a much more diverse organization. The conditions
at local levels are very different, and also to some extent,
the incentives of local police may be very different than the
reform minded individuals at the top.
The police at the local level may be more interested in
maintaining law and order and may be more willing to break the
rules. The people at the top have a difficult time. So, you
have a principal-agent problem that is a little bit different
than in the procuracy. So, again, I think there should be
efforts to work with these organizations. Many of the human
rights organizations, particularly in Europe are now
experimenting in various types of programs with both the
procuracy and the police, but the United States and Canada have
been a bit behind so far in these efforts.
Mr. Feinerman. I would just supplement what Professor
Peerenboom said in two areas. One, I think that something he
was pointing to is that often there is an overly monolithic
view of Chinese institutions, and particularly huge
institutions that have tens of thousands of people working in
them, such as the police. There are very conservative,
bullheaded people in them, and there are also very reform-
minded, forward-thinking people, many of whom even have command
of foreign languages.
In a couple of cases, I have invited such people to come to
my institution. They have been to other law faculties and
beyond the law faculties, other places in the United States as
visitors, even as short-term visiting scholars. And I think
that we should encourage that.
Second, I think that one of the things we have to think
about is who should do the kind of training or contact with
these groups. It may not be the best thing--not that I don't
value the work that they do--for human rights organizations to
be lecturing police, where the focus is going to be primarily
on police violations of human rights. They would do that if
they were lecturing to police here in the United States. A
better approach for the police in China by putting U.S. law
enforcement organizations in touch with their Chines
counterparts, putting U.S. district attorneys and prosecutors
in touch with their Chinese counterparts, and try to think
about how the institutions might cooperate.
One of the problems we have is that very often we get at
American law schools applications from Chinese people who
essentially have a law enforcement or similar background, and
our law faculties have a much more narrow curriculum than our
counterparts in China. With the exception of the John Jay
College of Criminal Justice in the state university system in
New York, there is really no academic institution that has the
kind of faculty that many Chinese law faculties have. So, we
don't have counterparts for them to come to in the United
States.
But those people are looking for something. They are eager
to be trained and we just can't find the appropriate fit for
them in American institutions. We may need to think about
designing one. I know that people in the judiciary, including
several justices on the U.S. Supreme Court, have been very
active in pursuing judicial training opportunities. I think we
may need to think not so much about the high-end of the
judiciary, but about the low end of the judiciary, about the
people who would be the equivalent of judge magistrates and
those who are really carrying out the implementation of law at
the place where the rubber meets the road in terms of
enforcement, and give them the kind of attention that is
lavished on the seniormost judges in the Chinese system, who
very often may have little to do but judicial administration.
Mr. Foarde. Next I would like to recognize Andrea Worden,
also a senior counsel with the Commission.
Ms. Worden. Thanks, John. I am wondering if you all have
any thoughts on the relationship, if any between the rise of
NGOs and civil society in China and the development of the rule
of law, however defined?
Mr. Feinerman. I'll go out on a limb here. I think that
although there has been a great deal of development in that
area, and there are certainly NGO's in an emerging civil
society in China, I would say one of the most striking gaps in
Chinese society today is at that level. In fact, there is a
whole new vocabulary of terminology that has been developed to
describe what the NGOs in China are like, GONGOs, QUONGOs--
government organized NGOs or quasi-NGOs. It is a hopeful
development in some ways, because I think that they have the
potential to, you know, like the caterpillar from the cocoon,
emerge eventually into a genuinely independent kind of NGO that
would provide for a broader and deeper civil society.
But, I don't think that they are quite there yet. And it's
a problem, particularly when American institutions like that
are looking for counterparts in China. The Chinese Government's
Human Rights Society is not the counterpart of Amnesty
International or Human Rights Watch. And they are going to have
problems trying to make a fit.
It has problems everywhere, beginning with the
authorization and law, but even with the way that they are
funded. There is nothing like the tax deductibility of
contributions. For obvious reasons, the government may not want
to grant that. Aside from that, how do you began to give scope
for civil society? In China today, there is very little
daylight between those organizations and the Chinese
Government, and maybe one of the things that we can do is try
and help push in the wedge that may separate them further from
their beginnings.
But, on the other hand, I don't want to counsel that we
should ignore them. Too often, particularly sometimes
moralistic Americans will say, ``I want nothing to do with that
organization, because I know that it is state-run. It is
Communist Party controlled.'' Again, these institutions are not
monolithic. The people in them have different motives. Some of
them may be very independent-minded, and others may just be
following the Party line. If you reach out to them, there is
the potential of having an impact, although I think probably
down the line.
If you look at the development of other Asian societies--
some of them Professor Peerenboom has also studied and written
about--you can see how there might be a potential for them to
mature as happened in places like Taiwan, South Korea, even
Singapore and Malaysia, other more authoritarian societies,
where eventually there was this possibility to break away and
begin to develop true independence. So this may just be the
beginning stage of that happening in China.
Mr. Peerenboom. I think the situation is always very
complicated. First of all, these socio-political philosophies,
thick conceptions rule of law that I talked about earlier have
very different
notions about what the proper scope and nature of civil society
should be. Most Asian countries impose all sorts of limits on
freedom of association, including registration requirements
that we would find abhorrent, but that they find necessary for
social order. So, that's the first thing. There are just
different limits and different conceptions of what the role of
civil society should be.
That said, I think this is one of the areas where China
falls down, one of the weakest areas in China. I think the
limits on freedom of association and social organizations are
more extreme than they need to be. They are also becoming
counterproductive, because the government's capacity to deliver
social services and provide information is increasingly
limited. And the NGO's or the social organizations could
provide some of those services. They could pick up some of the
slack.
Now, the government knows that. So, the government has,
relative to the past, authorized the existence of a number of
these organizations. And they have varying degrees of autonomy.
It is not at all monolithic in how much autonomy and
independence these organizations have both by category--for
example, commercial
associations, business associations tend to have somewhat more
autonomy than say, obviously, religious organizations--but also
within those categories. So, there are some commercial
associations that are much more independent than others, and
some social organizations that are much more independent than
others.
So there is work that can be done in terms of trying to
persuade the government that perhaps they don't need to be
quite as restrictive. But even within the current limitations,
there is a lot that can be done with the existing
organizations, even some of those that are most embedded in the
system. In fact, many of those that are most embedded in the
system are the most effective, and they are the most effective
precisely because they are embedded in the system. That is the
way it works in China today. You need to have connections with
the powers that be to get anything done.
So it might be nice to give a lot of money to some
completely independent human rights organization or labor
organization if such a thing existed, but it wouldn't
necessarily have any impact on policymaking or what actually
happens. So, sometimes you need to do business with whomever
can do business.
Mr. Foarde. Let me recognize Selene Ko, chief counsel for
trade and commercial rule of law.
Ms. Ko. Professor Peerenboom, earlier you discussed the
fact that the Chinese Government and the Chinese people don't
necessarily embrace this thick concept of rule of law that may
be recognized in other places, especially the liberal
democratic version of the concept. I was wondering if you--and
Professor Feinerman, if you as well--had a view on what exactly
is the concept of the rule of law among the Chinese people? Is
there diversity of views across the various sectors? In your
experience, have you noticed any distinction in attitudes
toward rule of law among those people that you interact with--
intellectuals, lawyers, state officials, or others--who have
studied other legal systems outside the Chinese legal system?
Mr. Peerenboom. One thing that is striking is that there is
almost universal support for a thin notion of rule of law.
Basically, everybody sees a functional legal system as in their
interest. The only groups or individuals who do not see that as
being in their interest are those that are only able to survive
based on their connections. They couldn't survive in a free,
competitive marketplace, or in a legal system that implemented
the rules fairly. Of course, some of those groups are very
important politically, and so they could stand in the way of
rule of law reforms.
Nonetheless, the general view among most Chinese citizens,
as indicated by polls, is overwhelming support of rule of law.
What is interesting is that this result is in dramatic contrast
with the same questions about democracy. When asked the same
things about democracy, many people are much more ambivalent,
and are willing to sacrifice it for economic development and so
on, or the need for social stability.
So I think there is widespread agreement among academics,
government officials, and citizens about both the meaning of a
thin rule of law and the desirability of it. Beyond that, you
then get into these larger socio-political philosophies. The
government sees things more in the line of a state socialist
version of rule of law. They see a large role for the Party.
They see the Party as playing a valuable role in leading
society and maintaining social stability. Even some of the
people who don't particularly believe in socialism as an
ideology anymore, nonetheless, still see the Party as playing a
valuable role given the lack of other viable alternatives.
There is often more support in China for the current regime
than is expected. When you look at the polling evidence, it is
actually surprising how many people support the current regime.
Even if they don't like it, they still support it for
delivering social stability, having delivered economic
development, and perhaps being better than the existing
alternatives.
That said, there are these other schools of thought,
particularly, as I said, some soft authoritarians who basically
see the Party as an outdated institution and single-party
socialism as a obstacle to further development. They see the
growing gap between economic reforms and political reforms as
the major obstacle for China. So, they are advocating a
transition from single party socialism to something else, and
changing the role of the Party, perhaps from a socialist party
to a social democratic party and so on.
Now, that is obviously a major political issue that is
going to meet with opposition among members of the Communist
Party. The neoauthoritarians themselves are criticized roundly
for being anti-democratic and being elitist by the people that
see democracy now or later as a good thing. So there is that
other school of thought, the communitarian one that does
support democracy, either now or in the future, and rejects
soft authoritarianism, and rejects the Singapore model as what
is right for China.
Within the so-called liberal democrats--and again, one of
the problems with that term is, when people say ``liberal
democrats'' in China, that often means ``reformer.'' They are
not really liberal democrats. Scratch beneath the surface on
most of these social issues, and they turn out to be quite
conservative, much more communitarian, much more old school
Confucian, than liberals. They are certainly not the kind of
liberals that we think of when we think about these social
issues.
But within that school of liberal democrats, you also see a
range from libertarians who basically want a limited role for
government and economic reforms that are market oriented, with
greater emphasis on property rights, but not necessarily a very
big state in promoting social welfare. You then see classic
liberals who favor a minimal state. And then you see social
welfare liberals. So, you see the whole range of political
views in China. That's one of the things that's very
interesting.
Again, you don't get much information about these different
views, but if you read the literature, if you look at some of
the polling data, you can see there is actually quite a
variety, quite a range and diversity.
Mr. Feinerman. I would, of course, generally defer to
Professor Peerenboom on this because he has written the book,
literally, about this topic. This topic has been a lot of his
scholarly career, researching and writing about it. But, I
would just add a couple of things.
One, I think that there is a great understanding, at least
in the academic and elite circles of the competing versions of
the rule of law. Everyone may subscribe to his or her own
preferred version, but even in the terminology, the
terminological changes that have happened in China in the last
decade or so, you can see subtle shifts. They show what the
state wants to promote, what people think the alternatives are.
Starting decades ago, there was the understanding of the
difference between rule of law and rule of man. And even
understanding what the difference was between the rule of law
and the rule by law. Chinese language has had a term almost
since the original Western idea of Rechtsstaat, that we
translate as ``rule of law'' in English, created this
conception at the end of the 19th century. It is different than
the one that's used in everyday parlance to talk about the rule
of law; the academics can make those separations.
Then when the government began pushing for the rule of law
and even amended the Constitution in 1999, they put that term
in there, although the Constitution had been in force for
almost 20 years before it was amended. You might wonder what a
constitution that didn't have rule of law was supposed to be
about.
But, when they put this phrase in, they used this
formulation that had been adopted by the ideological
masterminds behind the Jiang Zemin regime. And it is an
interesting formulation in Chinese. It is neither of the
traditional terms, but it is a four character phrase, ``yi fa
zhi guo,'' which can be translated as ``a country ruled by
law.'' And that nomenclature shows the kind of way-station that
many Chinese feel they are in right now.
They don't have the Rechtsstaat kind of rule of law, but
they understand that the conception has got to be somewhat
thicker, or deeper, than the idea of just ``ruled by law,''
which, of course, can be abused by authoritarian rulers. I
mean, Hitler's Germany had rule by law, but no one would claim
that it was a Rechtsstaat. As a result, there is a pretty
sophisticated understanding that you've got to thread the
needle somehow. You've got to get between this conception that
is too easily dismissed and not really effective in doing the
things that you hope a rule of law will do, and yet not go too
far out on a limb to promise things that I think most
specialists who observe China would say, probably can't be
delivered by the current society or regime. That sets up
expectations that are bound to be disappointed and cause even
greater social turmoil.
Just one last thing I would say, and here I am pretty sure
that I agree with Professor Peerenboom, that one of the things
that ordinary Chinese, I mean the taxi drivers that all
visitors to China--that can speak Chinese, at least--talk to,
tell you that they fear almost more than anything, and
certainly more than the loss of the rule of by law, is chaos.
Fear of chaos in Chinese is ``pa luan.'' Or, more precisely,
``I am worried about turmoil.'' Given the recent
political history of China over the past 50 or so years, it is
understandable that they feel that way, and also that they feel
that in the last 20-some years there has been a remarkable
period of stability--punctuated, of course, by some unfortunate
moments, such as in the spring of 1989--nonetheless, anything
that might jeopardize that is really something that they fear
more than maybe having the enjoyment in the future of some
rights that are yet undefined, and they don't want to risk
that. They don't want to risk the economic improvement that
they have seen in their lives. They don't want to risk the
relative personal freedom that they have been able to enjoy,
partly due to the indirect effect of the rule of law, including
marketization of the economy.
And so, if that's the choice that anyone has to make, I
think it goes to this point about democratization, that they
are worried. They look at television, for example, and see the
debates in the Legislative Yuan in Taiwan, and see one member
breaking a chair over another member's head, and say, ``If that
is democratization, I don't want that.'' They are less
familiar, because of the language gap, of the more polite kind
of verbal jousting that goes on here or in the British
Parliament. But, they have understandable reluctance to get too
far ahead of the curve.
Mr. Foarde. Let's take one last question from Alison
Pascale.
Ms. Pascale. Professor Peerenboom, you had mentioned in
your testimony that China is planning to adopt nonliberal rule
of law, and that legal reform still can impose limits on
authoritarian governments. I would be interested, if you could
give some examples of some limits that you have seen imposed.
Mr. Peerenboom. Well, I think first of all, it is clear
that lower-level governments are now restrained by legal rules
in a way that they weren't in the past, because of the
Administrative Litigation Law, and all of the other
administrative checks and legal mechanisms for challenging
government actions through the administrative system.
That is consistent with and, indeed, intended by the
central government, because the government wants the lower-
level governments to follow central government rules. So, when
they don't, they are more than happy that ordinary citizens
challenge them. Still, that is an improvement for the citizens,
because before they were often subject to local warlords,
essentially cadres who more or less did what they wanted. Now,
they are clearly being limited by
administrative laws.
There are many other instances where the creation of a
legal system has simply facilitated actions by citizens. Where
before you would have to befriend the government to do
something, now you simply go down and register to get your
company going, or now you have a technology license, you don't
even have to go down, you can register on-line on the Web. So,
there are many ways in which the legal system has made life
much easier for citizens and has effected change, even within
the constraints of an authoritarian government.
Also, the participation in the legal process itself has
changed greatly. Under the new law and legislation, there are
now requirements for hearings and making major laws publicly
available. So, that gives citizens some ability to have some
impact--marginal to be sure, but nonetheless some input into
the lawmaking process. There is an Administrative Procedure Law
that is being developed, same sort of thing. It will allow
citizens to have some say in a regulation before it is drafted.
Now the WTO requires comment before a regulation comes in
effect--so the regulation has already been drafted, and it has
already been promulgated, but before it becomes effective. It
gives interested parties a chance to offer some comments. The
Administrative Procedure Law will go beyond that, by giving
citizens opportunities to participate before a new law or
regulation is actually drafted and promulgated.
Finally, I would just say that in general there is this
notion of ``yi fa zhi guo,'' or ``ruling the country according
to law.'' I think it is very important to realize that the
Chinese have accepted the idea that the government is supposed
to act according to law. That it is not just that anybody can,
or any government official can tell you what to do and you have
to do it. Nor can the government rely on policy instruments.
The government has to now issue regulations through a formal
process, and that is what all government officials have to rely
on. If they are relying on policy, rather than laws, they can
be challenged.
So that notion of ``yi fa zhi guo'' or ruling the country
according to law was a significant conceptual breakthrough,
because when they were discussing this phrase they had a choice
between two words in Chinese, using different characters with
the sound yi. The second one actually means to use law to
govern. And they rejected that. They chose the one that said
rule according to law, which means the law is there, and you
have to rule according to it. You don't just use law. That's
the Rechtsstaat, that's the rule by law concept of the old
days. You simply used law as another policy or another
instrument for managing the state.
And now it is not the case. By choosing that other term,
government officials have to act according to law. That means
they have accepted, at least conceptually, the idea that their
behavior has to conform to pre-established standards. So all of
that is for the good. Of course, that's the theory, and there
is still the gap between law and implementation that we've
talked about. All of that needs strengthening of institutions
to change.
Mr. Feinerman. The only thing that I would add is that I
think there is still the problem in two respects. One, the
Communist Party, which we haven't really talked about this
afternoon, and the fact that the government may be one thing,
but the Party still remains another. As someone said over two
decades ago, the Communist Party in China controlled everything
except itself. It also still sees itself as above the law, but
this is a hotly contested point that has been much discussed in
China.
I think many Chinese Communist Party officials will tell
you that they think the Party now also has to conduct itself
according to law. But until everyone, including the top
leadership, agrees with that, that's a problem. And there still
is an instrumental use of the rule of law, although I would
agree that it is moving toward a more robust concept. When you
see the explanations, for example, about the ``Strike Hard''
campaigns, that ``this is all lawful,'' it means that ``we have
the law in place and we needed to make the law somehow
susceptible to even harsher enforcement, so we temporarily
change the law.'' So everything that is being done is being
done according to law. But that kind of situational flexibility
is at odds with, at least, the modern Western conceptions of a
Rechtsstaat. To be fair, this happens in societies all around
the world. It's not just a peculiarity of the Chinese system.
But, it is, perhaps, not as recognized as a deviation as it
probably should be.
Mr. Foarde. We have reached the end of our time this
afternoon, and I want to thank all three of our panelists, Raj
Purohit who had to leave us a few minutes ago; Randy
Peerenboom, thanks for coming all the way from Los Angeles to
talk to us--you should have brought us better weather--and to
Jim Feinerman who is here in town and who we rely on often for
his wisdom and insight.
Our next issues roundtable will be next Monday afternoon,
April 7, at 2:30 p.m. in this room. It will be about Tibet and
the future of the Tibetan language, with three distinguished
panelists as well. So, I hope that you will be able to join us
next week for that roundtable. We will have more information
soon about issues roundtables and hearings later in the spring.
With that, let me gavel this particular issues roundtable
to a close with thanks to all who came, thanks to our staff
panel, and to our panelists. Good afternoon.
[Whereupon, at 4:05 p.m. the roundtable was concluded.]
A P P E N D I X
=======================================================================
Prepared Statement
----------
Prepared Statement of Randall Peerenboom\1\
april 1, 2003
What's a Liberal to Do? The Pursuit of Non-liberal Rule of Law in China
I am very pleased to be here today. In these times of international
conflict, the necessity of developing a positive, peaceful and mutually
beneficial relationship with such a geopolitically important country as
China is readily apparent. However, if the U.S. and other countries are
to play a role in helping China become a responsible member of the
international community that, despite differences from time to time,
can work with rather than against the U.S., then we in the U.S. must
have an accurate understanding of how China sees its role in the world
and the challenges that China faces in its efforts to modernize.
Nowhere is this need for understanding more apparent than with respect
to the implementation of rule of law, a notoriously contested concept
here in the U.S. and around the world. Let me begin then by defining
some terms in order to clarify areas of agreement and disagreement.
---------------------------------------------------------------------------
\1\ Author's Biographical Note: Randall Peerenboom obtained a B.A.
in Philosophy, M.A. in Chinese Religion and Ph.D. in Philosophy before
obtaining a J.D. from Columbia Law School. He has written more than 60
articles and several books on Chinese law and philosophy. From 1994 to
1998, he practiced law with a major international law firm in Beijing.
He currently teaches Chinese law and international human rights at the
University of California Los Angeles. In addition to advising on
various aspects of foreign investment in China, he often serves as an
expert witness on PRC legal issues and is Of Counsel at Yiwen Law Firm.
Recent publications include: China's Long March Toward Rule of Law
(Cambridge University Press, 2002); Beyond Universalism and Relativism:
The Evolving Debates about ``Values in Asia'' (forthcoming Indiana
International and Comparative Law Review 2003); The X-Files: Past and
Present Portrayals of China's Alien ``Legal System,'' 2 Global Studies
Law Review (2003); Social Networks, Civil Society, Democracy and Rule
of Law: A New Conceptual Framework, in The Politics of Relationality:
Civil Society, Economics, and Law in East Asia, Hahm Chaihark, Daniel
Bell & Hahm Chaebong, eds., (forthcoming Rowman & Littlefield, 2003);
Social Networks, Rule of Law and Economic Growth in China: The Elusive
Pursuit of the Right Combination of Public and Private Ordering, 31:2
Global Economic Review (2002) ; Globalism, Path Dependency and the
Limits of Law: Administrative Law Reform and the Rule of Law in the
PRC, Berkeley J Intl Law (2001); Seek Truth from Facts: An Empirical
Study of Enforcement of Arbitral Awards in the PRC, American J
Comparative Law (2001); The Limits of Irony: Rorty and the China
Challenge, 50 Philosophy East & West (2000); Human Rights and Asian
Values: The Limits of Universalism, China Review International (2000);
Ruling the Country in Accordance with Law: Reflections on the Rule and
Role of Law in China, 11 Cultural Dynamics 315-51 (1999); Lawyers in
China: Obstacles to Independence and the Defense of Rights (Lawyers
Committee on Human Rights, 1998); Confucian Harmony and Freedom of
Thought: Right Thinking Versus the Right to Think, in Confucianism and
Human Rights 234-260 (edited by Wm. de Bary & Tu Weiming, New York:
Columbia Univ. Press, 1998).
---------------------------------------------------------------------------
1. THICK AND THIN THEORIES
Rule of law is an essentially contested concept. It means different
things to different people, and has served a wide variety of political
agendas from Hayekian libertarianism to Rawlsian social welfare
liberalism to Lee Kuan Yew's soft authoritarianism to Jiang Zemin's
statist socialism. That is both its strength and its weakness. That
people of vastly different political persuasions all want to take
advantage of the rhetorical power of rule of law keeps it alive in
public discourse, but it also leads to the worry that it has become a
meaningless slogan devoid of any determinative content.
The fact that there is room for debate about the proper
interpretation of rule of law should not blind us to the broad
consensus as to its core meaning and basic elements. At its most basic,
rule of law refers to a system in which law is able to impose
meaningful restraints on the State and individual members of the ruling
elite, as captured in the rhetorically powerful if overly simplistic
notions of a government of laws, the supremacy of the law and equality
of all before the law. In contrast, states that rely on law to govern
but do not accept the basic requirement that law bind the State and
State actors are best described as a rule by law or Rechtsstaat.\2\
---------------------------------------------------------------------------
\2\ As with rule of law, Rechtsstaat has been interpreted in
various ways. While some interpret it in more instrumental terms
similar to rule by law, others would argue that the concept entailed at
minimum the principle of legality and a commitment on the part of the
State to promote liberty and protect property rights, and thus some
limits on the state. In any event, the concept Rechtsstaat has evolved
over time in Europe to incorporate democracy and fundamental rights.
Accordingly, it is often now used synonymously with (liberal
democratic) rule of law.
---------------------------------------------------------------------------
Conceptions of rule of law generally come in two varieties. A thin
conception stresses the formal or instrumental aspects of rule of law-
those features that any legal system allegedly must possess to function
effectively as a system of laws, regardless of whether the legal system
is part of a democratic or non-democratic society, capitalist or
socialist, liberal or theocratic. Although proponents of thin
conceptions of rule of law define it in slightly different ways, there
is considerable common ground. The key features are that there must be
rules for lawmaking and laws must be made in accordance with such rules
(including by the courts through precedent) to be valid; laws must be
general, public, prospective, relatively clear, consistent, stable,
impartially applied and enforced so that the gap between law and
practice is relatively small.
There is general agreement not only about these criteria, but that
these criteria cannot be perfectly realized, and may even in some cases
be in tension with each other. While marginal deviations are
acceptable, legal systems that fall far short are likely to be
dysfunctional. Of course, a thin theory requires more than just these
elements. A fully articulated thin theory would also specify the goals
and purposes of the system as well as its institutions, rules,
practices and outcomes.
Typical candidates for the more limited normative purposes served
by thin theories of rule of law include: (i) ensuring stability, and
preventing anarchy and Hobbesian war of all against all; (ii) securing
government in accordance with law by limiting arbitrariness on the part
of the government; (iii) enhancing predictability, which allows people
to plan their affairs and hence promotes both individual freedom and
economic development; (iv) providing a fair mechanism for the
resolution of disputes; and (v) bolstering the legitimacy of the
government. States may agree on these broad goals and yet interpret or
weigh them differently, leading to significant variations in their
legal regimes. For instance, a greater emphasis on stability rather
than individual freedom may result in some states limiting civil
society, freedom of association and speech. Moreover, in periods of
rapid economic or social transformation, some of these goals, such as
predictability, may be sacrificed for other important social values.
A variety of institutions and processes are also required. The
promulgation of law assumes a legislature and the government machinery
necessary to make the laws publicly available. Congruence of laws on
the books and actual practice assumes institutions for implementing and
enforcing laws. While informal means of enforcing laws may be possible
in some contexts, modern societies must also rely on formal means such
as courts and administrative bodies. Furthermore, if the law is to
guide behavior and provide certainty and predictability, laws must be
applied and enforced in a reasonable way that does not defeat people's
expectations. This implies normative and practical limits on the
decisionmakers who interpret and apply the laws and principles of due
process or natural justice such as access to impartial tribunals, a
chance to present evidence and rules of evidence. One must also look
beyond the traditional branches of government to the legal profession,
civil society, private actors who increasingly take on government
functions, and the military, which in many countries continues to be a
force capable of undermining the legal system and rule of law.
In contrast to thin conceptions, thick or substantive conceptions
begin with the basic elements of a thin conception of rule of law but
then incorporate elements of political morality such as particular
economic arrangements (free-market capitalism, central planning, etc.),
forms of government (democratic, single party socialism, etc.) or
conceptions of human rights (liberal, communitarian, ``Asian Values,''
etc.). Thick theories of rule of law can be further subdivided
according to the particular substantive elements that are favored. The
four most common conceptions in China: statist socialist, neo-
authoritarian, communitarian or collectivist or liberal democratic.
We in the U.S. are most familiar with the Liberal Democratic
version of rule of law favored in modern Western states.\3\ Liberal
democratic rule of law incorporates free market capitalism (subject to
qualifications that would allow various degrees of ``legitimate''
government regulation of the market), multiparty democracy in which
citizens may choose their representatives at all levels of government,
and a liberal interpretation of human rights that gives priority to
civil and political rights over economic, social, cultural and
collective or group rights.
---------------------------------------------------------------------------
\3\ The tendency to equate rule of law with liberal democratic rule
of law has led some Asian commentators to portray the attempts of
Western governments and international organizations such as the World
Bank and IMF to promote rule of law in Asian countries as a form of
economic, cultural, political and legal hegemony. Critics claim that
liberal democratic rule of law is excessively individualist in its
orientation and privileges individual autonomy and rights over duties
and obligations to others, the interests of society, and social
solidarity and harmony. This line of criticism taps into recent, often
heavily politicized, debates about ``Asian values,'' and whether
democratic or authoritarian regimes are more likely to ensure social
stability and economic growth. It also taps into post-colonial
discourses and conflicts between developed and developing states, and
within developing states between the haves and have-nots over issues of
distributive justice. In several countries, arguably in all countries,
it has resulted in an attempt to inject local values into a legal
system established by foreign powers during colonial occupation or
largely based on foreign transplants. See Carol Rose, 'The New Law and
Development Movement in the Post-cold war Era: A Viet Nam Case Study',
Law & Society Review, vol.32 (1998), p.93; Barry Hager, 'The Rule of
Law', in The Mansfield Center for Pacific Affairs, ed., The Rule of
Law: Perspectives from the Pacific Rim (summarizing complaints of critics). Takashi
Oshimura, 'In Defense of Asian Colors', in Mansfield Center, Rule of
Law, at p.141; (claiming that the individualist orientation of [liberal
democratic] rule of law is at odds with Confucianism and ``the
communitarian philosophy in Asia''). See also Joon-Hyung Hong, 'The
Rule of Law and Its Acceptance in Asia', in id. at p.149 (noting the
need to define rule of law in a way that is acceptable to those who
believe in ``Asian values''). Randall Peerenboom, 'Beyond Universalism
and Relativism: The Evolving Debates about ``Values in Asia,''' Indiana
Int'l & Comp. L. Rev. 2003.
---------------------------------------------------------------------------
In contrast, Jiang Zemin and other Statist Socialists endorse a
state-centered socialist rule of law defined by, inter alia, a
socialist form of economy, which in today's China means an increasingly
market-based economy but one in which public ownership still plays a
somewhat larger role than in other market economies; a non-democratic
system in which the Party plays a leading role; and an interpretation
of rights that emphasizes stability, collective rights over individual
rights and subsistence as the basic right rather than civil and
political rights.
There is also support for various forms of rule of law that fall
between the Statist Socialism type championed by Jiang Zemin and other
central leaders and the Liberal Democratic version preferred in Western
states. For example, there is some support for a democratic but non-
liberal (``Asian Values'' or New Confucian) Communitarian variant built
on market capitalism, perhaps with a somewhat greater degree of
government intervention than in the liberal version; some genuine form
of multiparty democracy in which citizens choose their representatives
at all levels of government; plus an ``Asian Values'' or communitarian
interpretation of rights that attaches relatively greater weight to the
interests of the majority and collective rights as opposed to the civil
and political rights of individuals. Japan's legal system, particularly
in the criminal law area, arguably is an example of a collectivist or
communitarian rule of law system.
Another variant is a Neo-authoritarian or Soft Authoritarian form
of rule of law that like the Communitarian version rejects a liberal
interpretation of rights but unlike its Communitarian cousin also
rejects democracy. Whereas Communitarians adopt a genuine multiparty
democracy in which citizens choose their representatives at all levels
of government, Neo-authoritarians permit democracy only at lower levels
of government or not at all. For instance, Pan Wei, a prominent Beijing
University political scientist, has advocated a ``consultative rule of
law'' that eschews democracy in favor of single party rule, albeit with
a redefined role for the Party, and more extensive, but still limited,
freedoms of speech, press, assembly and association. One can get a
better sense of what a soft authoritarian rule of law legal system in
China might look like by considering the legal systems in Hong Kong,
Malaysia and Singapore.\4\
---------------------------------------------------------------------------
\4\ See Peerenboom, Varieties of Rule of Law: An Introduction and
Provisional Conclusion, and the chapters on these countries, in Asian
Discourses of Rule of Law: Theories and Implementation of Rule of Law
in Twelve Asian Countries with Comparisons with France and the U.S.A.
(forthcoming RoutledgeCurzon, 2003).
---------------------------------------------------------------------------
A full elaboration of any of these types requires a more detailed
account of the purposes or goals the regime is intended to serve and
its institutions, practices, rules and outcomes, which I provide in my
recently published book China's Long March Toward Rule of Law.\5\
---------------------------------------------------------------------------
\5\ See also Table 1 summarizing some of the key differences.
---------------------------------------------------------------------------
Nevertheless, this preliminary sketch is sufficient to make the
following points. First, despite considerable variation, all forms
accept the basic benchmark that law must impose meaningful limits on
the ruler and all are compatible with a thin conception of rule of law.
Put differently, any thick conception of rule of law must meet the more
minimal threshold criteria of a thin conception. Predictably, as legal
reforms have progressed in China, the legal system has converged in
many respects with the legal systems of well-developed countries; and
it is likely to continue to converge in the future.
Second, at the same time, there will inevitably be some variations
in rule of law regimes even with respect to the basic requirements of a
thin conception due to the context in which they are embedded. For
example, administrative law regimes will differ in the degree of
discretion afforded government officials and the mechanisms for
preventing abuse of discretion. Judicial independence will also differ
in degree and in the institutional arrangements and practices to
achieve it. And differences in fundamental normative values will lead
to divergent rules and outcomes.
Hence signs of both divergence from and convergence with the legal
systems of well-developed countries are to be expected. Indeed, whether
one finds convergence or divergence depends to a large extent on the
particular indicators that one chooses, the timeframe and the degree of
abstraction or focus. The closer one looks, the more likely one is to
find divergence. But that is a natural result of narrowing the focus.
Third, when claiming that China lacks rule of law, many Western
commentators frequently mean that China lacks the Liberal Democratic
form found primarily in modern Western states with a well-developed
market economy, and indeed with the particular common law variant found
in the U.S. Although a handful of isolated legal scholars and political
scientists in China or living in exile abroad have advocated a Western-
style Liberal Democratic rule of law, there is little support for
liberal democracy, and hence a Liberal Democratic rule of law, among
State leaders, legal scholars, intellectuals or the general public.
Accordingly, if we are to understand the likely path of development
of China's system, and the reasons for differences in its institutions,
rules, practices and outcomes in particular cases, we need to rethink
rule of law. We need to theorize rule of law in ways that do not assume
a Western liberal democratic framework, and explore alternative
conceptions of rule of law that are consistent with China's own
circumstances. While the three alternatives to a Liberal Democratic
rule of law each differ in significant ways-particularly with respect
to the role of law as a means of strengthening the State versus
limiting the state-they nevertheless share many features that set them
apart from their liberal democratic counterpart.
Fourth, assuming as seems likely that China will ultimately
implement some version of rule of law, the realization of rule of law
in any form will require significant changes to the present system.
Finally, it bears noting thin and thick conceptions are analytical
tools. It is not a question of one being the right way to conceive rule
of law and the other wrong. They have different advantages and
disadvantages, and serve different purposes. Thin conceptions highlight
certain features and purposes of a legal system. Even a more limited
thin rule of law has many important virtues. At minimum, it promises
some degree of predictability and some limitation on arbitrariness and
hence some protection of individual rights and freedoms. While the
notion of legality may seem like all too thin a normative reed in cases
where the laws themselves are morally objectionable, even the harshest
critics of rule of law acknowledge that getting government actors to
act in accordance with, and to abide by, the laws is no small
achievement. Certainly dissidents rotting away in jail after being
denied the right to a fair trial and other procedural protections
appreciate the importance of even a thin rule of law. Similarly,
business people and the average citizen alike appreciate a legal system
in which laws do not change daily and are regularly applied in a fair
manner by competent administrators and judges free from corruption. By
narrowing the focus, a thin theory highlights the importance of these
virtues of rule of law.
Conversely, because thick theories are based on more comprehensive
social and political philosophies, rule of law loses its
distinctiveness and gets swallowed up in the larger normative merits or
demerits of the particular social and political philosophy. As Joseph
Raz observes, ``If rule of law is the rule of the good law then to
explain its nature is to propound a complete social philosophy. But if
so the term lacks any useful function. We have no need to be converted
to the rule of law just in order to believe that good should triumph. A
non-democratic legal system, based on the denial of human rights, of
extensive poverty, on racial segregation, sexual inequalities, and
religious persecution may, in principle, conform to the requirements of
the rule of law better than any of the legal systems of the more
enlightened Western democracies.''
As a practical matter, much of the moral force behind rule of law
and its enduring importance as a political ideal today is predicated on
the ability to use rule of law as a benchmark to condemn or praise
particular rules, decisions, practices and legal systems. But all too
often, rule of law is simply invoked to criticize whatever law,
practice or outcome does not coincide with one's own political beliefs.
For example, liberal critics take China to task for imposing limits on
labor unions, restricting the right of peaceful demonstration by
requiring prior registration, and imposing content-based restrictions
on Falungong. Contrast such complaints with the following. A law
provides that contractors must have 5 years of experience and meet
various other requirements to obtain a license; nevertheless, a
government official denies a license to a contractor who meets all of
the requirements, and a court refuses to overturn the decision because
local courts are funded by the local government. Two government
agencies issue conflicting regulations, and there is no effective legal
mechanism to sort out the conflict. A suspect is entitled to legal
counsel according to law, but in practice the authorities refuse to
allow him to contact his lawyer. Your dispute with your insurance
company regarding payment for hospital bills incurred as a result of a
car accident remains pending in court after 7 years due to judicial
inefficiency. The rich and powerful are regularly exempted from
prosecution of certain laws whereas others are prosecuted in similar
circumstances. The first set of issues involve differences in
substantive normative beliefs and political philosophies of the type
that differentiate advocates of competing thick conceptions of rule of
law; the second set of issues points to failures captured by a thin
conception of rule of law, for which there is widespread support in
China.
Distinguishing between thin and thick theories makes it possible to
use rule of law more effectively as a benchmark for evaluating legal
systems by clarifying the nature of the problem. China is still in the
process of establishing a functional legal system. Its legal system is
plagued by thin rule of law issues such as weak legal institutions,
incompetent and corrupt administrative officials and judges, excessive
delays, and limitations on access to justice including high court costs
(relative to the resources of many) and the lack of legal aid. These
kinds of problems are qualitatively different than more political
issues such as how broad free speech or freedom of association should
be, or whether labor should have the right to form unions and strike.
Obviously, these latter issues are tremendously important and deserve
to be discussed. But whether the most effective way to do so is by
riding into battle hoisting the banner of rule of law is debatable.
When invoked by parties on both sides of an issue to support
diametrically opposed results, rule of law quickly becomes conceptually
overburdened and unstable.
A thin theory therefore facilitates focused and productive
discussion of certain legal issues among persons of different political
persuasions. Being able to narrow the scope of the discussion and avoid
getting bogged down in larger issues of political morality is
particularly important in cross-cultural dialog. Criticisms of a legal
system in a country such as China that point out the many ways in which
the system falls short of a liberal interpretation of rule of law are
likely to fall on deaf ears and may indeed produce a backlash that
undermines support for rule of law, and thus, ironically, impede
reforms favored by liberals. Conversely, criticisms are more likely to
be taken seriously and result in actual change given a shared
understanding of rule of law. To the extent that there is common ground
and agreement on at least some features of a thin theory of rule of
law, parties can set aside their political differences and focus on
concrete reforms. For instance, the U.S. and China, notwithstanding the
U.S.'s liberal democratic conception of rule of law and the Chinese
government's statist socialist conception, have been able to agree on a
wide range of reforms to improve the PRC legal system, including
judicial exchange and training programs aimed at improving the quality
of PRC judges; programs to assist in the development of a legal aid
system; exchanges to strengthen the securities regulatory system and
the administrative law system; seminars on electronic commerce,
corporate law and the enforcement of arbitral awards and court
judgments; and even a symposium to discuss the legal aspects of
protecting human rights, including issues such as China's legal
responsibilities under international rights agreements, the rights of
criminal defendants and the legal protection of religious freedom.
There are then many opportunities for cooperation within the
existing framework. But should liberals support legal reforms aimed at
non-liberal ends?
2. SHOULD LIBERAL DEMOCRATS SUPPORT LEGAL REFORMS AIMED AT NON-LIBERAL
RULE OF LAW?
Early law and development movement of the 1960s and 1970s
maintained the evolutionary thesis that legal reform would inevitably
lead to economic growth, which would in turn lead to liberal democracy
once a middle class arose. This thesis was not borne out in practice in
all cases. Many states failed to develop economically, or even if they
did, some remained authoritarian. In fact, in the absence of political
pluralism and opportunities for participation in government, a stronger
legal system at times strengthened the hand of authoritarian regimes.
Some thirty odd years later, it is generally clear that a legal
system that complies with thin rule of law is required for sustained
economic growth.\6\ What is less clear is that economic growth and rule
of law will lead to democracy and a liberal interpretation of human
rights. The notion that economic growth and liberal democracy need not
go together was one of the central issues in the Asian values debate,
which while overly polemicized did raise serious questions about the
relationship between law (and in particular different thick conceptions
of rule of law), economic development, and forms of political regime,
and conceptions of rights. Thus, in Hong Kong, Singapore and Malaysia
one finds well-developed legal systems that comply with a thin rule of
law certainly in the commercial area and indeed with the exception of a
few highly politicized cases in other areas of law as well. Yet soft-
authoritarian and collectivist or communitarian thick conceptions
continue to prevail over liberal democratic conceptions.\7\
---------------------------------------------------------------------------
\6\ For a summary of empirical surveys, see Peerenboom, China's
Long March, chapter 10.
\7\ In Singapore, the most vocal challenge to the government's view
comes from liberals. But there is also a communitarian or collectivist
perspective that seeks a middle ground between the more statist-
orientation of the government's soft authoritarianism and the excessive
individualism of liberals. According to constitutional scholar Kevin
Tan, Singaporean style communitarianism is an axiom of faith in
governing nowadays, resulting in a premium being placed on national
security, economic growth and nation-building. While ``legal rights are
not trampled upon at will, in balancing the rights of the individual
and community, the state-articulated concerns of public interests have
gained precedence.'' Although Tan suggests that most of the support for
communitarianism comes from political elites, he also allows that the
community-based approach toward rights has acquired popular resonance
in mainstream Singaporean society. Eugene KB Tan, ''WE' v 'I':
Communitarian Legalism in Singapore', Australia Journal of Asian Law,
vol.4 (2002), p.1.
---------------------------------------------------------------------------
In the case of China, skeptics allege that the Party is simply
acting strategically in accepting some limits on its power implicit in
the notion of rule of law in order to strengthen its position. The Dean
of Beijing University Law School Zhu Suli, for instance, has suggested
that rule of law will promote economic development, which in turn will
strengthen the Party-state both fiscally and in terms of legitimacy. A
stronger Party may be better positioned to resist meaningful political
reforms.
There is no gainsaying the fact that the instrumental aspects of
legal reforms may enhance the efficiency of authoritarian governments.
In the absence of democracy and pluralist institutions for public
participation in the lawmaking, interpretation and implementation
processes, law may come to serve the interests of the State and the
ruling elite (as it may even with democracy and pluralist
institutions). It is possible therefore that rule of law will serve
authoritarian ends in China. Of course, many within China reject
democracy and believe that at present China needs an authoritarian
government (whether socialist or not) to oversee economic reforms and
maintain stability, though they disagree about just how hard or soft
the authoritarian regime should be. Clearly, both Statist Socialists
and Neo-authoritarians and even to some extent Communitarians see the
potential of legal reforms to strengthen the State as a positive
aspect. In the long run, however, Communitarians view rule of law as a
means of limiting the State and a stepping stone toward democracy.
Moreover, all expect law to impose some limits on the State and thus to
mitigate to one degree or another the harshness of the rule by law
authoritarian regime of the Mao era.
While legal reforms could help Statist Socialists solidify their
power and support a relatively hard authoritarianism, the dangers of
the ruling regime misusing rule of law for its own authoritarian ends
should not be overstated. As noted, even a Statist Socialist rule of
law differs from instrumental rule by law in that law is not just a
tool to be used by the ruling regime to control the people or promote
the interests of the privileged few (of course law is a tool for
enforcing State policies and ensuring social order everywhere). Rule of
law entails limits on the State and the ruling elite (who are also
bound by the law), provides a basis for challenges by citizens of
government arbitrariness and serves to protect the rights and interests
of the non-elite. It is striking that while critics in many developed
countries have the luxury of belittling the concept of rule of law,
those who have had the misfortune to suffer its absence appreciate its
virtues and count among its biggest supporters.
Moreover, the choice facing Chinese reformers is not
authoritarianism or democracy, but authoritarianism with rule of law or
without it. Authoritarianism in China is not the result of legal
reforms to implement rule of law. On the contrary, the ruling regime
would be even more authoritarian in the absence of legal reforms. Where
legal rules are applied with principled consistency to both the State
and its citizens, as required by rule of law, they generally restrain
rather than expand the arbitrary exercise of State power. Further, as
some PRC scholars have observed, while historically the development of
rule of law has depended on promotion by the authorities, it also
results in a change in the conception of authority. In the past, the
Party's authority to rule was based to a considerable extent on the
charisma of revolutionary leaders who fought off the Guomingdang and
foreign oppressors and allowed China to regain its dignity and stand on
its own two feet. However, with the death of the old guard, new leaders
have had to base their authority on other grounds. To use Weber's
terminology, implementation of rule of law entails greater reliance on
formal rules by trained professionals rather than decisionmaking by
charismatic individuals, and thus results in a transformation from
charismatic to a more formal rational authority.
Perhaps most important, in the long run, implementing rule of law
usually will alter the balance of power between the state, society and
individuals, while at the same time alterations in the balance of power
resulting from economic reforms and factors beyond the legal system
will create further pressure to implement rule of law. The
establishment of a legal system with some degree of autonomy acts as a
counterweight to political power and provides a basis for challenging
State power. While a strong civil society is not inevitable, it is more
likely in a State that implements rule of law than one that does not. A
strong civil society is arguably more likely to seek and more likely to
obtain political reforms aimed at further limiting the power of
authoritarian states and increasing the power of society. Thus, even if
the goal is democracy and protection of human rights, it makes sense to
ensure at minimum that a thin rule of law is realized. A more likely
result in China than a stronger authoritarian regime is that rule of
law will be a force for liberalization and come to impose restraints on
the rulers, as in Taiwan, South Korea and even Indonesia and Malaysia.
3. WHAT CAN LIBERAL DEMOCRATS DO?
What can foreign governments, international development agencies
and NGO's do to support and expedite the development of rule of law in
China? First of all, it merits reiterating that the reform process will
be driven primarily by domestic actors responding to domestic concerns.
While foreign actors can play an important role in the process, they
should bear in mind that rule of law is an ideology. Implementation of
rule of law will directly challenge not only the Party but also other
vested interests in society. It will alter the balance of power between
the Party and the state, among State organs, and between the State and
society. It will also lead to changes within society, and require a new
cultural orientation that assigns a much higher place to reliance on
universally applicable laws and dispute resolution by impartial and
autonomous courts than in the past. What may seem on the surface to be
merely technical suggestions for tinkering with legal rules or
modifying institutions to cope with pressing commercial issues such as
local protectionism frequently implicate much broader political and
normative concerns.
That said, taking a particular thick conception of rule of law as
the basis for reforms raises more ideological issues than basing
reforms on a thin version. By focusing on the more technical features
of a functional legal system, a thin theory of rule of law increases
the likelihood that people of fundamentally different political
persuasions will be able to find sufficient common ground to carry out
meaningful reforms of the legal system. Accordingly, governments,
multilateral agencies and NGO's that are interested in taking advantage
of whatever political space is available to pursue concrete legal
reforms are more likely to be effective if they base their discussions
with PRC authorities on the core elements of the thin version. Not
surprisingly, many donor institutions such as the World Bank have
chosen to emphasize the technical aspects of legal reforms rather than
the broader normative dimensions and the potential of reforms to lead
to social and political changes. To insist on first reaching agreement
over which thick conception of rule of law is normatively superior
would divert attention away from the significant virtues of even a thin
rule of law and result in missed opportunities to realize concrete
changes in the legal system that would significantly improve the
quality of life for many PRC citizens.
This is not to deny that issues such as democracy and human rights
or the normative basis for laws are important. Rather, the point is
simply to suggest that while such issues should be discussed, they need
not be the focus of conversation every time legal reformers meet to
consider how to improve China's legal system.
In suggesting reforms or commenting on reform proposals then,
foreign actors should be attuned to differences in ideology, values and
institutions. For instance, China's legal institutions were modelled to
a considerable extent on Germany's civil system via Japan. Rather than
relying solely on the experiences and advice of American professors or
lawyers, the U.S. Government or U.S.-based aid agencies should try to
include on their team of legal reform advisors experts from around the
world and in particular from Germany, France and Japan. Foreign actors
should also make sure that they have sufficient local knowledge to
ensure that their reforms proposals are appropriate and feasible given
the current level of institutional development, existing cultural
attitudes and the current political limits.
Unfortunately, it is very difficult for most foreign actors to gain
an accurate picture of what is happening in China and to assess what
the possibilities for reform are, for a whole host of reasons including
language barriers, lack of access and transparency, and the speed with
which China is changing. Accordingly, there is a danger that the
prescriptions offered by foreign experts will not be implementable.
Many of the more successful reform initiatives have been bottom-up
proposals from those in the trenches who are confronted with practical
problems in their daily work. Although foreign actors frequently may
not have sufficient local knowledge to propose context-specific
solutions, they serve a useful purpose when they provide a menu of
alternative approaches. They also play a valuable role in working with
those in China to adapt approaches from the general menu to China's own
circumstances or in bringing their own experiences to bear on proposals
generated by those in China.
At present, China's legal system is beset by a number of problems.
As a result of more than a decade of feverish legislating, the legal
framework is by and large in place, though work continues to pass
important laws such as the Administrative Procedure Law and existing
laws are constantly being revised. This process of amendment is likely
to continue until China reaches a more stable social, political and
economic equilibrium. Thus, there is ample opportunity for foreign
parties to play a role as advisers in the legislative process.
But the real work lies in institution building. Although there are
still some gaps in the framework and loopholes in the existing laws,
tinkering with doctrine or passing more laws and regulations alone will
have little impact. At this point, the biggest obstacles to a law-based
system in China are institutional and systemic in nature: a legislative
system in disarray; a weak judiciary; poorly trained judges and
lawyers; a low level of legal consciousness; a weak administrative law
regime; the lack of a robust civil society; the enduring influence of
paternalistic traditions and a culture of deference to government
authority; rampant corruption; large regional variations; and the
fallout from the unfinished transition from a centrally planned economy
to a market economy, which has exacerbated central-local tensions and
resulted in the fragmentation of authority.
There is therefore much that needs to be done, and can be done,
even within the existing political framework, which will continue to
evolve over time. I have outlined a reform agenda in my book China's
Long March toward Rule of Law, which includes specific reforms to
address each of the major institutions: the legislative system, the
judiciary, the legal profession, the administrative law regime and the
role of the Party vis-`-vis the legal system. I have also attached a
report summarizing various reform recommendations and issues. I would
like to stress that much work also needs to be done to strengthen the
procuracy (Chinese prosecutorial organ, also referred to as the
procuratorate) and police. Indeed, the procuracy and police may be the
two areas most in need of improvement. At least in the case of the
procuracy the time seems ripe as the procuracy is now under the
leadership of a reform-minded chief.
More generally, the U.S. and other countries should seek to engage
rather than contain China. The greater risk at present is not that a
stronger China will oppose U.S. policies around the world but that a
strategy of containment aimed at keeping China weak and subservient
will strengthen the hand of hard-liners and slow reforms within China.
The gravest threat to stability in China is the increasing discrepancy
between the economic structure and political structure. The failure of
political reforms to keep pace with economic reforms is the most likely
path to regime collapse. Should the ruling regime collapse and China
descend into chaos and perhaps even civil war, the consequences would
reach far beyond China's own borders. For the sake of regional peace
and global stability, the U.S. and other countries should seek ways to
promote further reforms rather than seeking ways to contain China. The
opportunities for engagement and for mutual benefit and learning are
unlimited, provided all sides proceed with open minds.
Table 1.--A Comparison of the Four Ideal Rule of Law Types Plus Rule by Law
--------------------------------------------------------------------------------------------------------------------------------------------------------
Purposes of Rule Institutions/
Type of Legal System Economic Regime Political Regime Rights of Law Practices Rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Liberal Democratic Rule of Law.. Free market....... Democratic Liberal........... Limited government High degree of Protection of
elections at all separation civil and
levels;. between law and political rights;
politics. no registration
requirements for
social groups;
strong rights to
protect accused
in criminal
cases.
Minimum government Neutral state..... Emphasis on civil Prevent government Independent and
interference and and political. arbitrariness. elected
regulation. legislature.
Clear distinction Limited state..... Deontological view Protect individual Autonomous and
between public of rights as rights. independent
and private. antimajoritarian judiciary, with
trump on social life tenure for
good. judges,
appointment and
removal
relatively non-
politicized.
Administrative Civil society as Freedom privileged Predictability and Administrative
discretion independent of over order. certainty: law: mechanisms
limited. state. economic growth, for reining in
allow individuals discretion,
to plan affair. capable of
holding even top
leaders
accountable;
public
participation;
public can hold
government
officials
accountable by
throwing
government out of
office.
Autonomy over Dispute Independent legal
social solidarity resolution, profession.
and harmony. protect property
rights largely
through formal
legal system.
Freedom of thought Government
and right to efficiency and
think over need rationality.
for common ground
and right
thinking on
important social
issues.
More attention to Legitimacy........
rights than
character-
building, virtues
and duties.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chinese Communitarian Rule of Market economy; Democratic, Communitarian..... Balance between Moderate to high Broad laws to
Law. Managed multiparty law as means of degree of protect state:
capitalism;. elections. strengthening separation state secrets;
state and between law and endangering
limiting state. politics. state.
More government Reject neutral Emphasis on Stability......... Independent and Illiberal laws:
intervention. state. indivisibility of elected limit civil
rights, legislature. society, freedom
collective rights. of expression:
registration of
social groups; or
privilege group--
no exclusion of
tainted evidence.
Public/private Larger role for Economic growth at Prevent government Autonomous and
division not as state. expense of rights arbitrariness. independent
clear. (liberty judiciary, with
tradeoff). life tenure for
judges,
appointment and
removal
relatively non-
politicized;
arguably likely
to decide cases
based on
substantive
agenda.
More Civil society, but Utilitarian or Protect individual Administrative
administrative limits; groups pragmatic rights. law: mechanisms
discretion. free to go own conception of for reining in
way subject to rights. discretion,
general limits, capable of
although some holding even top
groups, leaders
particularly accountable; but
commercial more deference to
associations, may agencies in
still establish policymaking,
corporatist or emphasis on
clientelist efficient
relations with government
government, but balanced to some
soft or societal extent by need to
form of protect
corporatism. individual
rights;
opportunities for
public
participation in
rulemaking and
interpretation;
public can hold
accountable by
throwing out of
office.
Stability and Predictability and Independent legal
order privileged certainty: profession,
over freedom. economic growth, though perhaps
allow individuals monitored by
to plan affairs. state agency such
as ministry of
justice.
Social solidarity Government
and harmony as efficiency and
important if not rationality.
more so than
autonomy.
Freedom of thought Dispute
and right to resolution,
think limited by property rights
need for common protected through
ground and formal and
consensus on informal
important social mechanisms, more
issues. reliance on
corporatist and
clientelist ties.
Attention to Legitimacy........
character-
building, virtues
and duties as
well as rights.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Neo-Authoritarian Rule of Law... Market economy.... Single party rule, ``Asian Values'' Balance between Moderate Broad laws to
No elections or or communitarian. law as means of separation protect state and
only at low level strengthening between law and social order:
or appearance of state and politics. state secrets
genuine elections limiting state law; endangering
but limits on favors state interests.
opposition party. strengthening.
Managed capitalism Reject neutral Emphasis on Strengthen: Legislature not Illiberal laws:
state. indivisibility of Emphasis on elected. limit civil
rights, stability. society, freedom
collective rights. of expression:
registration of
social groups; or
privilege group--
no exclusion of
tainted evidence.
More government Even larger role Economic growth at Predictability and Judicial
intervention. for state. expense of rights certainty: mainly independence may
(liberty for economic or may not be
tradeoff). growth, less to limited.
allow individuals
to plan affairs.
Public/private Civil society, but Utilitarian or Government Administrative law
division not as limits, perhaps pragmatic efficiency and system, capable
clear. corporatist or conception of rationality. of checking
clientelist rights. government
relations with officials,
government. professional
civil service;
more emphasis on
rational
government than
protecting
individuals; more
deference to
government in
policymaking;
opportunities for
public
participation and
monitoring.
More Stability and Dispute Legal profession
administrative order privileged resolution, supervised by MOJ.
discretion. over freedom. property rights
protected through
formal and
informal
mechanisms, more
reliance on
corporatist and
clientelist ties.
Social solidarity Legitimacy........
and harmony over
autonomy.
Freedom of thought Limits: Government
and right to must act in
think limited by accordance with
need for common law.
ground and
consensus on
important social
issues; limits on
right to
criticize
government.
Attention to Law to prevent
character- government
building, virtues arbitrariness.
and duties as
well as rights.
Protect individual
rights, but not
priority and
limited.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Statist Socialism Rule of Law.. Market economy.... Single party rule, Emphasis on Emphasis on Moderate to low Broad laws to
no elections or subsistence, strengthening separation protect state:
only at lowest economic growth state. between law and state secrets;
levels. at expense of politics. endangering
rights (liberty state.
tradeoff).
Much government Reject neutral State sovereignty. Stability......... Legislature not Illiberal laws:
regulation;. state. elected; Party limit civil
influence on society, freedom
lawmaking process. of expression:
registration of
social groups; or
privilege group--
no exclusion of
tainted evidence;
administrative
penalties such as
re-education
through labor.
Public-ownership.. Much larger role Utilitarian or Predictability and Functional
for state. pragmatic certainty: independence of
conception of economic growth. judiciary; no
rights. interference by
other branches;
courts as
independent as
opposed to
judges, so
adjudicative
supervision;
arguably likely
to decide cases
based on
substantive
normative
principles
defined by state;
regime wants
courts to serve
Party interests.
No or very limited Rights as grant Law as way means Legal profession:
civil society, from state. of enhancing subject to
high level of government political
corporatist or efficiency and requirements,
clientelist rationality. partial
relations with independence,
government, hard mainly due to
or statist form corporatist
of corporatism. nature of
relationship with
MOJ.
Stability and Dispute Administrative
order privileged resolution, law: more
over freedom. property rights discretion; more
protected through responsive to
formal and Party policy;
informal system imposes
mechanisms, more weak limits on
reliance on top leaders,
corporatist and limited public
clientelist ties. participation in
rulemaking,
interpretation
and
implementation;
limited ability
for media and
public to monitor.
Social solidarity Legitimacy........
and harmony over
autonomy.
State prefers Some limits on
unity of thought state.
to freedom of
thought, right
thinking to right
to think;
tendency to
exercise strict
thought control
if possible; at
minimum, strict
limits against
attacks on ruling
party; emphasis
on thought work
to ensure common
ground and
consensus on
important social
issues.
Attention to Government must
character- act in accordance
building, virtues with law, but
and duties as accept limits
well as rights begrudgingly.
Prevent government
arbitrariness.
Protect individual
rights, but not
priority and
limited view of
rights.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Rule by Law..................... Could be planned Single party rule, Emphasis on Law is tool to No minimal Law relatively
economy, free no elections. subsistence, serve interests separation unimportant; much
market, or economic growth of the state; between law and of day-to-day
managed at expense of Party's role not politics. governance by
capitalism. rights (liberty defined in law; policies.
tradeoff). no meaningful
legal limits on
rulers.
Government Reject neutral Socialist Law enhance Party policies Absence of many
intervention high. state. conception of government supplant and major laws--
rights as efficiency. trump laws. criminal law,
bourgeois; contract law,
emphasis on civil procedure
duties, law
particularly
duties to state.
Public/private Totalitarian or Rights as grant of Law not meant to Legislature not Laws ignored
distinction non- authoritarian state. protect elected, just
existent or state. individual rights. rubber stamp.
unimportant.
Control by No or very limited Rights exist as Dispute Courts not
administrative civil society, programmatic resolution, but independent;
policy and fiat. state dominated goals only, no many disputes Party determines
corporatist real protection settled outcome of
arrangements. of rights. administratively specific cases;
or by Party adjudicative
leaders rather committee used to
than in courts. enforce Party
line; courts
serve Party
interests.
State sovereignty. Heavy reliance of Legal profession:
mediation to lawyers as
resolve disputes workers of the
``among the state; no
people'', formal independence;
legal system used work in state
to suppress firms; limited
enemies. rights to defend
accused.
Social solidarity Party members not Administrative
and harmony over subject to courts. law: main purpose
autonomy. is government
efficiency;
officials wide
discretion,
govern by fiat;
no administrative
laws provide
individuals right
to challenge
government; no or
extremely limited
public
participation in
administrative
process.
state enforces
strict thought
control; unity of
thought over
freedom of
thought.
Strict limits
against attacks
on ruling party.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Appendix II
Legal Reforms in China
This report assesses the current and future obstacles and potential
for legal reform, and suggests ways to facilitate reforms consistent
with an overall objective of promoting the rule of law and the
protection of individual rights.\8\ Part I provides a general overview
of legal reforms in China. Part II offers some general observations
about what can be done to support reforms based on the discussion
presented in Part I and a recent meetings with participants in previous
projects and others in the legal community. Part III focuses more
specifically on legal research in China, both by academics and by the
research arms of government entities such as the National Judges
Institute. Part IV focuses on judicial training. Part V takes up a hot
topic being debated in the Chinese legal community: the need to
establish one or more centralized committees or entities to guide legal
reforms.
---------------------------------------------------------------------------
\8\ The assumption is that rule of law tends to result in better
protection of individual rights. However, it also is important to note
that the meaning of rule of law is contested. A thin or procedural rule
of law does not entail a particular conception of rights. In contrast,
thick or substantive theories of rights incorporate particular
interpretations, conceptions or theories of rights--such as liberal,
communitarian, Asian Values, etc. Some scholars have argued that a thin
rule of law lacks sufficient normative content to adequately protect
rights. However, even a thin rule of law necessarily entails some
protection of rights as rule of law entails meaningful limits on the
state.
---------------------------------------------------------------------------
I. OVERVIEW OF LEGAL REFORMS: MOVING BEYOND A COURT-CENTRIC APPROACH
It is essential to begin with an overview of legal reforms in
China. First, many bilateral and multilateral assistance programs have
focused on ``judicial reforms'' in the narrow sense of courts and
judges. The reasons for this were basically twofold. Courts and judges
are clearly central to the successful implementation of rule of law,
and without doubt PRC courts and judges are a weak link in the rule of
law chain. Further, given limited resources and virtually unlimited
areas in need of reform, many donors chose to concentrate on funding a
couple of areas where it felt its support could have the greatest
impact. Focusing on the courts allowed donors to fund a range of
projects to address various interrelated problems, thus providing a
more comprehensive and potentially more effective reform package.
While understandable, a court-centered approach has certain
disadvantages. PRC courts have a somewhat more limited role than courts
do elsewhere: for instance, legal interpretation and review of
regulations for consistency is done by different entities. Further, as
in other systems, other entities such as the prosecutor and police also
play important roles in the implementation of law. An overview of the
legal system suggests that donors could increase their impact on legal
reforms by funding other entities or other projects not related to the
courts, with the procuracy and police being particularly suitable
candidates in terms of need, though questions remain as to the
possibility of designing effective programs.
Second, courts and all legal institutions function in a particular
context. Even if donors wish to continue to focus on the courts, it is
important to understand the general context in which courts are
operating in order to choose projects that are feasible and likely to
lead to significant reforms. Accordingly, I discuss briefly some
general factors affecting legal reforms--the political and
constitutional structure, economic reforms and the unfinished
transition to a market-oriented economy, tradition and culture, the
urban-rural divide, and the negative affects of widespread corruption.
I then turn to the particular legal functions and the institutions
responsible for them in China: legal education, lawmaking/legislation,
legal interpretation and implementation of law.
A. General factors
1. Political and constitutional structure
Legal reformers must take into consideration China's political
structure, including the role of the Party, the unitary structure in
which the National People's Congress (NPC) is the highest organ of
State power such that there is a separation of functions but not
separation of powers in the sense of constitutionally equal and
independent branches, and the particular division of powers among State
organs--including the procuracy's role as supervisor of the courts, the
dispersion of lawmaking and interpretation authority to a wide variety
of organs and the division of powers among central and local levels.
Some of these features are not unique to China. Given certain
similarities in institutional structures, it makes sense to look first
to European civil law countries for comparative purposes. In contrast,
this very different political structure from our own suggests that
legal reforms modeled on the U.S. are likely to require adaptation if
they are to be successful.
Although reforms over the last 20 years have resulted in the Party
ceding responsibility for daily operations to the usual State actors,
the Party unquestionably remains an important institution in China, and
is likely to continue to be so for some time. Nevertheless, there is
much that can be accomplished by way of legal reforms within the
current structure (in part because many reforms are in the Party's
interests and in part because the Party's options are increasingly
constrained by objective factors such as the needs of economic reform,
pressure from globalization and China's increasing involvement in the
international legal order, most notably the WTO). On a theoretical
level, more attention needs to be paid to what the acceptable
parameters of rule of law within a single party system are: what would
be an acceptable role for the Party consistent with the requirements of
rule of law?
Most importantly, however, rather than knee-jerk reactions to any
role for the Party whatsoever, it would be more productive to adopt a
pragmatic approach that focuses on what the actual role of the Party is
in practice and the advantages and disadvantages of various forms of
Party involvement in the legal system. When is Party involvement
helpful and when it is not? What forms of involvement (by which Party
organs or groups) are acceptable? How can the various roles of Party
organs be modified and improved to increase the positive consequences
and diminish the negative ones? What are the channels for influencing
the Party's role? Are some organizations better situated to undertake
this kind of work than others? For instance, Li Buyun has suggested
that Chinese Academy of Social Science's (CASS) semi-official status
increases the likelihood that his project on judicial independence will
influence decisionmakers. At present, the channels for influencing
decisionmakers in China, particularly Party organs, is opaque at best.
Indeed, the role of Party organizations in the actual operation of the
legal system seems to be poorly understood and little discussed in
public. While academics and others may be reluctant to discuss the
Party's role for obvious reasons, to the extent possible, more open
discussion of the pros and cons would be useful. Funding projects
involving Party organs or Party schools would be highly desirable,
assuming that the right personnel were involved. For instance, Fang
Shirong, formerly the Dean of Southcentral University of Law and
Political Science, has now taken an influential position in a Party
school, and thus is well-positioned to lead what could potentially be
an extremely informative and influential project.
Recently, Party leaders have expressed an interest in social
democratic parties, sending teams to Western and Eastern European
countries to explore how the Eastern countries made the transition and
how such parties operate. This also would seem to provide an
opportunity for legal scholars, in conjunction with political
scientists, to rethink the role of the Party, especially in relation to
the legal system and rule of law.
More generally, rather than simply assuming that China must adopt
political and legal institutions like those in the West (whether civil
or common law), reformers should be encouraged to first gain a better
understanding of the particular problems faced by practitioners and
what methods those on the ground have developed to overcome the
problems. Such information might be valuable in selecting from the menu
of options available from other countries, adapting the approaches used
in other countries to fit China's circumstances or even in creating new
institutions. Of course, China's legal institutions have converged to a
considerable extent with those in other countries. Moreover, China's
problems, while to some degree specific, are not wholly dissimilar to
the problems faced by other states as they modernize. Accordingly,
China need not reinvent the wheel. Nevertheless, there remains
considerable room for creativity and institutional novelty.
2. Economic reforms
China's unfinished transition to a market-oriented economy creates
problems for legal reforms and rule of law. Laws change rapidly; there
is considerable inconsistency in laws; local governments ignore or bend
central laws to attract investors and promote economic growth, pressure
courts to find in favor of local parties or engage in other forms of
local protectionism, etc. It will be years before a reasonably stable
economic equilibrium is reached.
On the other hand, economic reforms also create opportunities for
legal reformers. Legal reformers may be able to harness the power of
economic reforms to promote changes. For instance, the conflict of
interest that exists when government agencies are also market players
has led to the demand to separate agencies and businesses, with
agencies focusing on their regulatory tasks. Similarly, as part of its
protocol of accession to the WTO, China has also committed to reducing
inconsistency in laws; applying and administering laws in a uniform,
impartial and reasonable manner; expanding judicial review of
administrative acts; creating a mechanism in which investors can bring
to the attention of national authorities cases of non-uniform
application of laws; establishing an official journal to publish all
trade related legislation; providing a reasonable period for public
comment before trade related legislation takes effect; and providing an
inquiry point for investors to obtain interpretation of laws and
regulations, etc.
A number of donors are sponsoring WTO-related projects and other
projects that focus more specifically on commercial law. Donors should
not ignore opportunities created by economic reforms to strengthen
institutions, as the affects of strengthening institutions are likely
to spillover into other areas of law.
3. Tradition and culture
Legal reformers face a number of challenges given China's past and
its current social conditions. As often noted, law has traditionally
played a somewhat different and less important role in China than in
other countries. Raising the level of legal consciousness and getting
people to trust in the legal system and respect the law is no easy task
(a task complicated by media and academic reports portraying judges as
incompetent and corrupt).\9\
---------------------------------------------------------------------------
\9\ Corruption and competence are problems of course. However, the
media tends to focus on negative issues simply because when the system
works properly it is expected and not news: man bites dog is news
whereas dog bites man is not.
---------------------------------------------------------------------------
Moreover, some practices such as extensive reliance on renqing
(feelings) and guanxi (personal connections and networks) often
undermine attempts to govern in accordance with law. Similarly,
laypeople often have an unrealistic expectation of law. The traditional
emphasis on substantive justice supports the mistaken impression among
many that the legal system is capable of solving all social problems
and rectifying all forms of injustice. It also leads to parties
pursuing adjudicative supervision and other channels to review final
court decisions.
Legal reforms that are at odds with social practices and values are
likely to be difficult to implement. Thus, attempts to implement the
criminal procedure law, restrict capital punishment or even curb the
widespread reliance on torture find little support from a populace wary
of increasing crime. Like American citizens, Chinese citizens have
supported the government's war on crime and terrorism, even at the
expense of civil liberties.
Law in action programs, including legal aid clinics, consumer
protection agencies, and support for administrative law reforms, may
help to some extent to demonstrate to people the value of law. At the
same time, where possible, efforts should be made to educate people as
to the limits of law and to create more reasonable expectations.
4. Urban-rural divide
The vast differences between rural and urban China create
challenges to legal reformers. Simply gathering accurate information
about the operation of law in the countryside, attitudes toward law
among rural residents and problems faced by rural legal organs is
difficult. Clearly, rural areas have more difficulty attracting legal
talent. Designing meaningful projects capable of addressing the
problems that arise in rural areas is not easy. Such projects require
for starters an accurate understanding of what is happening in the
countryside, which could perhaps be obtained through survey work, cases
studies and web-based information networks of the kind being
established by the National Judges Institute.
5. Corruption
Widespread corruption, including judicial corruption, is eroding
confidence in the ruling regime and threatening to undermine efforts to
establish rule of law. Corruption is definitely one of the most
important and difficult issues in China's legal reform. It is
notoriously difficult to study corruption or to measure it. It is also
difficult to come up with practical plans to reduce corruption. While
it would be naive to expect too much by way of results given the
institutional nature of corruption, one suggestion might be to study
court systems that enjoy a relatively clean reputation, such as
Shanghai. Comparative studies with other countries might also be
useful. The World Bank and others have been interested in this topic
recently. A few years ago, the Chinese Academy of Social Sciences held
a conference on judicial corruption. However, it is not clear what came
of it, and whether it led to a research or reform agenda or any follow-
up projects (a fate unfortunately all too typical of academic
projects).
B. Institutional/functional approach
One way to approach legal reforms is to focus on particular
institutions: the courts, NPC, procuracy, etc. Another way would be to
focus on particular legal functions: legal education and training,
lawmaking, legal interpretation, and implementation. Still another
approach would be to focus on particular areas of law: administrative,
criminal, family, environmental, etc. Here I use an institutional/
functional approach.
1. Legal education
Many of China's legal problems stem from the fact that many people
responsible for making, interpreting and implementing law -whether
government officials, lawyers, procuratorates or judges--lack adequate
legal knowledge and training. In part this is a historical artifact
resulting from the Cultural Revolution. But it is also a function of
current methods of legal education and training.
Foreign assistance agencies have supported a number of legal
education projects. Given the utmost importance of improved legal
education, such projects and the challenges facing legal educators
should be the subject of a separate study and appraisal. Suffice it to
note in passing that law schools ought to put more emphasis on legal
analysis and (practice-oriented) research rather than memorization of
black letter law. Rather than lecture, professors should stimulate
students to think about law and to encourage interaction. In addition,
clinical legal education should be further developed.
As discussed below, judges, procuratorates, police and government
officials need both remedial (basic) legal education and more
specialized training tailored to their particular responsibilities.
2. Legislation: Laws and regulations
Lawmaking (broadly defined to include all legislation, regulations
and normative documents) in China suffers from a number of problems,
including lack of transparency and participation in the lawmaking
process; the failure to publish or provide ready access to many
regulations; the poor quality of much legislation, despite steady
improvement; and inconsistencies between higher and lower level
regulations. As in other countries, a number of entities are authorized
to make law: the NPC and local people's congresses; administrative
agencies; local governments; even the courts if one counts the practice
of the Supreme People's Court (SPC) of issuing legal interpretations
that have the effect of laws. However, in China, the mechanisms for
ensuring consistency are underdeveloped.
The passage of the Law on Legislation (Lifa Fa) and the future
passage of the Administrative Procedure Law (APL) will alleviate some
of these problems, allowing for greater participation, requiring
hearings and the publication of laws, and providing for new ways to
challenge inconsistent regulations. Yet there will continue to be
problems, and thus there are likely to be ample opportunities to fund
worthwhile projects that focus on specific areas of reform such as:
research for and drafting of the APL (including empirical research on
particular administrative agencies and the issues they face and
comparative research on administrative procedure laws in other
countries); development of legislative and administrative hearing
processes, including drafting of regulations and training; the creation
of nation-wide data bases for laws and regulations (some donors are now
supporting various data bases, but without any apparent attempt to
coordinate their efforts or link up the data bases); and the
establishment of entities and procedures for reviewing legislation for
consistency.\10\
---------------------------------------------------------------------------
\10\ This list is by no means meant to be exhaustive. It also bears
noting that many foreign actors have already sponsored projects aimed
at building institutional capacity by training drafters of laws and
regulations at the NPC, State Council and in various organizations, as
well as having sponsored the research for and drafting of various laws
and regulations.
---------------------------------------------------------------------------
To be sure, although a number of solutions have been proposed and a
number of steps taken to reduce the level of inconsistency, they are
not likely to suffice for reasons explained elsewhere.\11\ In the end,
deeper institutional reforms, including judicial reforms to increase
the independence and authority of the courts--in particular giving the
courts the power to annul administrative regulations--are likely to be
required.
---------------------------------------------------------------------------
\11\ See Peerenboom, China's Long March Toward Rule of Law, chapter
5 (Cambridge University Press, 2002).
---------------------------------------------------------------------------
3. Legal interpretation
Legal interpretation in China leaves much to be desired. There is
no constitutional court. The National People's Congress Standing
Committee (NPCSC) rarely fulfills its constitutional responsibility to
interpret laws. There are no clear procedures for obtaining an NPCSC
interpretation. When the NPCSC does decide to act, the interpretive
process lacks transparency and opportunities for public participation.
Nor is the issue of the role of legislative history clear.
To fill the void, the SPC issues interpretations in a variety of
guises, from comprehensive interpretations (jieshi) to generally
applicable replies (pifu) to replies applicable only in the specific
case (and in some cases explanations of their interpretations, as in
the case of explanation by the drafters of the Security Law
interpretation submitted internally to the SPC adjudicative committees
but subsequently published by the Jilin People's Press). Yet the SPC's
legal authority to issue comprehensive interpretations is unclear.
Moreover, critics note that the practice of issuing replies violates a
party's right to an appeal. Needless to say, the status of internal
explanations of interpretations is even more dubious. As with NPC
interpretations, the entire process is shrouded in mystery and lacks
transparency and meaningful public participation.
Similar problems plague interpretation by the procuracy and
administrative agencies. In addition, different departments or entities
often issue conflicting interpretations. In some cases, Fagongwei (the
NPC committee in charge of drafting and legal affairs) was charged with
taking the lead in mediating conflicts between the different entities
and coordinating interpretation, even though there was no legal basis
for the Fagongwei to issue interpretations of laws.
In short, legal interpretation would seem to be an area ripe for
reform, possibly even a major overhaul (especially now that the SPC has
stated that parties may in certain circumstances directly invoke the
constitution to protect their rights). It might be worth considering a
project that takes a comprehensive look at legal interpretation,
including empirical research into how interpretation actually works in
the various entities, what the issues are, and how the process could be
improved. Perhaps this could be one of the tasks of the centralized
Legal Reform Committee discussed in Part V. As the experience with the
Law on Legislation suggests, the procuracy is not likely to give up its
power to interpret laws easily.
4. Implementation
The obstacles to implementation vary depending on the area of law:
criminal, administrative, family, environmental, commercial, etc. Thus,
in some cases, it makes sense to focus on area-specific projects, such
as administrative or criminal law projects that are particularly
central to the protection of rights. Different regions also face
different problems. Nevertheless, there are general systemic and
institutional obstacles to enforcement that cut across the various
areas, albeit with varying degrees of relevance and importance to any
given area. Accordingly, an institutional approach that focuses on
institutional capacity building is warranted.
(a) The courts
Rule of law requires a judiciary that is technically competent,
independent, and enjoys sufficient powers to resolve disputes fairly
and impartially. China's judiciary falls short on each of these
dimensions. Clearly, comprehensive judicial reform is required,
including deep institutional reforms.
However, judicial reforms must be sequenced and implemented in
accordance with the judiciary's institutional capacity to change.
Suddenly providing more authority and independence to incompetent and
corrupt judges could result in more rather than fewer wrongly decided
cases, which would then further undermine the legitimacy of the legal
system. On the other hand, it will be difficult to attract and retain
qualified personnel to the judiciary without increasing the authority
and independence of the courts. Accordingly, a series of incremental
reforms is required whereby the authority and independence of the
courts is increased over time as the judiciary becomes more competent
and capable of handling the additional responsibility.
(i) Technical issues.--A number of recent reforms have sought to
improve efficiency (by separating functions within the court, imposing
deadlines for handling cases, etc.), access to justice (by limiting
fees and providing legal aid) and the quality of the trial by
appointing more qualified presiding judges and requiring judges to
write better judgments, etc. In addition, trials are now open to the
public, and judgments are being made available online, thus increasing
the transparency of the courts and subjecting them to public scrutiny
and supervision.
Currently, there seems to be considerable interest in evidence
rules and the use of summary procedures. A new Evidence Law is being
drafted, and the Supreme People's Court, Supreme People's Procuracy and
the Ministry of Justice have recently jointly issued regulations that
provide for summary and simplified procedures in criminal cases where
the defendant admits guilt.
There is a tendency to announce a particular reform and then fail
to follow-up to investigate the extent to which reforms are actually
being implemented, how effective they are, what obstacles have arisen,
what modifications or solutions have been tried, etc. Consolidating
reforms is as important as devising new reforms. Grantees often apply
for funding for each new reform that is in the works, rather than going
back and testing how earlier reforms are working. Donors might want to
consider funding longer term projects with a follow-up component, or
just to fund follow-up projects, to ensure that reforms are
consolidated.
(ii) Personnel issues: Quality of judges and legal assistants.--
Recent reforms have sought to address a bloated judiciary with many
judges lacking in sufficient legal knowledge and training. Raising the
standards for becoming a judge, instituting a unified national exam,
selecting the most qualified judges to be presiding judges, requiring
court presidents and vice presidents to have a legal background,
transferring unqualified judges to non-adjudicative positions, reducing
the number of judges, closing off the route for secretaries and ex-
military officials to become judges, etc.--all deserve to be applauded.
Nevertheless, serious problems remain. Again, it would be useful to
know more about how the recent reforms are working. Anecdotal evidence
suggests that the shenpanzhang system is not working as well as it
should. Promotion is still based largely on factors other than legal
knowledge and performance, including seniority. Academics debate the
extent to which ex-military officials are still engaged in adjudicative
work, the reasons why they are, and what should and can be done about
it.
Current hot issues include how to increase efficiency by
distinguishing between judges (including assistant judges) and clerks/
secretaries, and dividing up responsibilities among them (with
different training and career paths for judges and secretaries). This
is an area worth exploring. While comparative studies may be useful,
the first step should be to get a better picture of what is happening
in courts around China. Moreover, it is more likely that Europe would
be a better place to look for relevant experience than the U.S., given
the different career paths of judges.
Another hot issue is the unified judicial exam. The implications of
a unified national exam are only now being thought through. The exam
has been conducted for 2 years, and no doubt a number of issues have
arisen.
The quality of the judiciary is a major issue that involves funding
considerations (Should judges be given raises? What should happen to
judges who are terminated or transferred to non-adjudication
positions?), appointment and promotion considerations, and the issue of
judicial independence. These issues go to the heart of institutional
reforms and the restructuring of the courts. Nevertheless, even within
the existing parameters, much can be done to improve the quality of the
judiciary. The most obvious means is through training, which because of
its importance is discussed separately in Part IV.
(iii) Judicial independence.--Given the low level of competence of
many judges and problems with corruption, there must be a balance
between judicial independence and judicial accountability.
Nevertheless, judges are currently subject to too much supervision and
outside interference. The independence of the courts is threatened by
the lack of adequate funding, the reliance on governments at the same
level for funding and the way judges are appointed. Judges are subject
to pressure from the Party (through various channels, both from outside
the court and within the court), government officials, people's
congresses, procuracy, senior judges within the court and higher level
courts, the media and members of society. Addressing these issues would
require major institutional changes, including in some cases amendments
to the Constitution that would alter the balance of power between the
courts and people's congresses and the procuracy.
One issue is how best to promote greater judicial independence
given the politically sensitive nature of judicial independence and the
fact that major institutional reforms would be required to make much
headway. The Ford Foundation has funded a project by CASS, headed by Li
Buyun, that involves an empirical study of interference with the courts
as well as a comparative and theoretical angle. The project is supposed
to produce a book on judicial independence plus several reports that
will be forwarded to decisionmakers in China by taking advantage of
CASS's quasi-governmental status. This project is to be applauded for
including an empirical component that attempts to understand more
specifically the forms and sources of interference with the courts.
However, there are already a number of empirical studies about the
frequency and source of interference with the courts. In fact, Li noted
that Supreme People's Court President Xiao Yang recently commissioned a
study but then set it aside when it turned up so many problems. Thus,
it is questionable whether the problem is lack of knowledge about the
nature and severity of the problem. It is also questionable whether
Li's study will have any more impact than previous studies, though as
noted above Li hopes that CASS's special status and connections (and I
would add Professor's Li's own status and connections) might make a
difference. Moreover, presumably Li's study would be published, and
thus could lead to a public debate that might create further pressure
for reform.
There have been a number of proposals regarding how to overcome
local protectionism and increase judicial independence, from the
creation of a Federal court system to the establishment of cross-
provincial regional courts to centralizing funding for the courts and
judicial appointments. A project looking in detail at each of these
proposals (and possibly others) might be worthwhile. More specifically,
one of the concerns with institutional reforms that would centralize
funding is that it would create too big a fiscal burden for the central
government. A study that would try to calculate what the costs would be
and that would address issues such as how the center would collect fees
from lower courts, calculate a budget, allocate funds, etc. might be
valuable.\12\ Proposals to promote experimentation in the way judges
are appointed--or to collect information about such experiments to the
extent that they are already occurring--would also be worth exploring.
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\12\ In 2002, there was CASS conference on judicial reform in which
one of the four main topics was how to deal with local protectionism.
There was considerable discussion of the practical issues involved in
restructuring the way courts are financed and judges appointed. Again,
coordination, sharing of information and dissemination of results is
important. Whether the CASS conference will produce tangible results in
the form of conference papers is not clear. More generally, as many of
the issues that affect the court (legal aid, funding for equipment and
salaries, etc.) touch on issues of public finance, foreign agencies
might want to consider breaking down the internal walls within the
typical programming structure so that those responsible for legal
affairs and economic/public finance could fund collaborative projects.
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(iv) Authority of courts.--Courts in China lack stature and
authority. Projects that explore ways to expand the authority of the
courts merit consideration. For example, it might be worth exploring
ways to allow some courts to strike down certain abstract acts (though
this may require constitutional change). The authority of the SPC to
interpret laws and regulations could also be given a firmer legal
foundation. However, given the difficulty of these reforms and finding
entities to push for them, it might be more feasible to concentrate on
expanding powers already enjoyed by the courts. For example, courts
have been reluctant to take full advantage of their powers to strike
down specific administrative acts based on abuse of authority. Courts
have also rarely taken advantage of their powers to hold individuals,
companies or government entities in contempt if they do not cooperate
with the courts in enforcing judgments, providing evidence, etc. To be
sure, unless the way courts are funded and judges appointed is changed,
courts are not likely to become terribly aggressive in challenging
government entities or officials.
(b) Agencies
Government agencies are a key player in the implementation of law.
Yet agencies are plagued by local protectionism, departmental turf-
fighting, cut-backs that seem to have resulted in young and poorly
trained people assuming positions of power (at the Ministry of Foreign
Trade and Economic Cooperation (MOFTEC), for example). More generally,
officials are poorly paid, and corruption is widespread. Further,
agencies enjoy considerable discretion for various reasons. While
agencies everywhere enjoy considerable discretion, and there are good
reasons why agencies in China should enjoy even more discretion in some
circumstances, the legal mechanisms for checking discretion--letters
and petitions, administrative supervision (and Party discipline),
reconsideration, and litigation--remain weak.
The task of improving the quality of administrative agency
officials is complicated by the tremendous diversity of agencies, which
makes it hard to devise effective training strategies. Moreover, the
sheer number of officials presents obvious problems. Some donor
agencies with large budgets, such as the EU, have established training
programs for key agencies or departments within agencies, such as
MOFTEC and its Treaties and Law Section. France has also established a
program between its school for civil servants and its Chinese
counterpart. There have also been various programs aimed at training up
officials responsible for patents, copyrights, and trademarks and
developing the institutional capacity of entities that deal with
intellectual property issues. Although these programs may only be a
drop in the bucket, as it were, they may be effective when they target
specific departments with a clearly defined agenda.
The Ford Foundation has supported a number of projects in the area
of administrative law, including support for drafting of administrative
legislation (including regulations for the courts with respect to
implementing the State Compensation Law), training of administrative
law judges, study abroad for PRC administrative law specialists to
research judicial review, administrative licensing and the U.S.
Administrative Procedure Act, and a book on comparative administrative
litigation.
There are still some holes in the regulatory regime: a licensing
law, compulsory enforcement law and administrative procedure law are
being drafted. Improvements can also be made to existing rules and
mechanisms for reining in government officials. For instance,
reconsideration bodies lack independence. China might consider tough
rules against ex parte communication and a system where reconsideration
personnel are not members of the agency whose actions they are
reviewing.
On the whole, however, China's administrative law regime remains
weak due to various context-specific factors discussed previously, many
of which have little to do with the administrative law system as such,
including shortcomings in the legislative system, weak courts, poorly
trained judges and lawyers, corruption, a low level of legal
consciousness among government officials and the citizenry, and the
fragmentation and overlapping of authority that have resulted from the
transition to a more market oriented economy. Thus, improving the
administrative law system is largely an indirect process involving
general institution building.
(c) Procuracy
The procuracy has attracted relatively little attention from
academics, Chinese or foreign, or from foreign donors.\13\ At this
stage, there would appear to be a need for more research to better
understand what the procuracy is doing and the issues it is facing. One
possibility would be to encourage the National Procuracy Institute to
establish an internet information network along the lines of the one
established by the National Judges Institute.
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\13\ There are some exceptions: The Canadian International
Development Agency and Sweden have done some projects on prosecutors.
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One issue that is apparent is the tension between the procuracy and
the courts. While many believe the procuracy's right to supervise the
court should perhaps be limited, a firm empirical basis is lacking to
back up the argument. Moreover, it might be easier to persuade the
procuracy to accept limitations on its powers if such limitations were
combined with proposals to increase the authority or responsibilities
of the procuracy in other ways (for instance, encouraging the procuracy
to bring class actions suits rather than relying on private lawyers, a
suggestion raised in passing by Zhu Suli).
Presumably the procuracy is facing many of the same types of
technical and personnel issues as the courts. Clearly there are similar
issues with respect to lack of sufficient legal knowledge and training.
As with judges, training of procuratorates is a daunting task. While
there are differences in training judges and training procuratorates,
many of the issues are the same, including the need to develop
practical materials, difficulties locating qualified instructors with
the necessary legal knowledge and practical experience, the need to
train large numbers of procuratorates that have very different legal
backgrounds and work in quite different environments, and the need to
effectively disseminate the results of training received at training
centers to others who could not attend the training sessions.
Foreign agencies could play a valuable role in strengthening the
procuracy by taking advantage of what they have learned in supporting
court projects. For example, representatives of the National Procuracy
Institute proposed more trips abroad for their researchers or for
senior procuratorates to observe other systems. As discussed below,
such trips seem to have produced limited results. While they may be
useful in some circumstances, they require careful planning and other
conditions. Other donors have also noted that sending procuratorates
(and judges) abroad for training has been hampered by the insistence on
the part of the courts and procuracy that they select the trainees.
Language, dissemination of information gained from training and the
impact of those trained when they return are also issues.
Simply facilitating information transfer between the two national
institutes would be useful, particularly given that the National
Procuracy Institute seems to have made greater headway in tackling some
of the training issues than the National Judges Institute, for instance
with respect to the development of practical materials and
investigations into the use of distant learning technologies.
Conversely, as noted, the information network being established by the
Judges Institute might be useful for the procuratorate. Similarly, both
the procuracy and the courts are doing research, often on similar
topics, without any coordination.
(d) Police/Public Security (Gongan)
Without doubt, the police/public security are the front lines in
the implementation of law; equally without doubt, their role in the
implementation of law is a major trouble area. Like the procuracy,
public security has received insufficient scholarly attention. Yet the
problems facing potential researchers and reformers are even greater.
By its nature, police work is primarily local. The implications are
several: collecting information and designing effective programs is
likely to be difficult, because different localities are likely to face
different problems; top-down approaches are not likely to be effective;
training will be difficult because of the sheer numbers of police,
their different backgrounds and their different problems. Further,
police work is often secretive. One of the problems documenting use of
torture or violations of laws in collecting evidence or interrogating
suspects is that police act differently when they are being observed by
outsider observers.
Nevertheless, there are likely to be opportunities for
strengthening police work in accordance with law. Technical assistance
or exchange programs may provide Chinese police with new information or
techniques for investigating crimes that render reliance on torture
less necessary, for example. Surely other countries have had problems
with torture, and may have some useful lessons to share about what to
do about it.
Again, some donors have begun to work in this area, including
Office of the High Commissioner for Human Rights (OHCHR) and Norway,
both of which have had programs on policing. The OHCHR held a workshop
in Beijing on July 5-6, 2001 that apparently (i) discussed
international standards applicable to police conduct; (ii) shared
comparative studies of training and operation manuals for police,
particularly with respect to human rights elements; (iii) identified
follow-up steps to integrate relevant U.N. material into police
training in China. Norway sponsored an international workshop on
Rights, Crime and Policing in China attended by PRC, European and North
American experts. Sweden also sponsored projects on prisons and public
security in 1996 and 1998 respectively.
(e) Lawyers
China's legal profession has made great strides in terms of numbers
and quality, though much remains to be done. Many lawyers are still
poorly trained and lack sufficient legal knowledge to carry out their
tasks. There is still a shortage of lawyers, particularly in rural
areas. Like lawyers elsewhere, many PRC lawyers want to practice
commercial law, while few want to practice in less lucrative areas such
as criminal or environmental law. Professional ethics are a problem.
Chinese lawyers involved in litigation frequently engage in unethical
behavior (often because there is little alternative if they are to
compete with other lawyers and serve their clients' interests). Chinese
lawyers and law firms also cultivate clientelist relationships with the
Ministry of Justice, MOFTEC, the State Administration for Foreign
Exchange and even the courts. Bar associations remain weak, with key
positions often filled by justice officials.
Chinese firms tend to be small. Many firms are really not firms at
all but rather just a nameplate where each individual lawyer works
independently and is compensated on an eat-what-you-kill basis.
Management problems are common, and keep firms from reaching a size
required to compete with major international firms. Firms tend to
invest little in the training of younger associates. Younger associates
often leave, in part because they see little point in staying given
that they are paid little, receive little training and are not likely
to be allowed to make partner. On the other hand, younger associates
often have an inflated sense of their abilities and market value, and
an unrealistic sense of what it takes to develop a practice.
The role of lawyers is often poorly understood. Lawyers frequently
encounter problems in carrying out their work, and even at times are
subject to physical abuse or arbitrary arrest. Some judges and
procuratorates resent the fact that lawyers make so much more money.
The legal profession is a hard group to target for reforms. The
quality and technical skills of lawyers is likely to improve over time
as legal education is improved, the bar for becoming a lawyer is raised
(presumably the Lawyers Law will be amended soon so that would-be
lawyers will have to have a college degree to sit for the unified
national exam), and market competition, particularly in the cities--
resulting from the increase in foreign firms after WTO and the sheer
increase in numbers of Chinese lawyers--forces lawyers to up their game
to survive. In contrast, post-graduation training seems to have little
effect. For starters, it is difficult to design a meaningful training
program for lawyers with different practices (foreign investment,
intellectual property, criminal, etc.) and legal backgrounds. Lawyers
at top firms are generally much better trained than the trainers.
Meanwhile, lawyers in rural areas may have a weak foundation in law.
Efforts to inculcate professional ethics through educational
campaigns and persuasion are not likely to have much effect. A more
practical approach would be to encourage malpractice litigation.
Indeed, a study of malpractice litigation would be useful: how often
does it occur, in what kind of cases, what are the results, etc.
Malpractice suits are not likely to have much of an impact on
clientelist relationships. The main solution is likely to be
administrative and market reforms such that the MOJ's control over
lawyers (and hence their ability to extract rents) is diminished and
successful firms no longer need to rely on the MOJ or special
assistance from other agencies to attract and service clients.
II. WHAT CAN FOREIGN ACTORS DO TO FACILITATE LEGAL REFORMS AND ACHIEVE
GREATEST IMPACT?
Be realistic
Clearly, many of the obstacles to implementing rule of law in China
are beyond the capacity of any foreign donor to change. Some problems,
such as the institutional reforms necessary to enhance independence of
the courts, require political will on the part of China's
decisionmakers. Other problems are even beyond the powers of China's
leaders: there is simply no way to create a qualified corps of judges
overnight, for example.
Pick institutions that can deliver
A superficial comparison between the National Judges Institute and
National Procuracy Institute suggests the importance of working with
entities and individuals that can deliver. Projects might look good on
paper. But they may not achieve the desired results if they are not
properly implemented. Whereas the National Judges Institute has
received considerable funding from the Ford Foundation and other
donors, the Procuracy Institute seems to have been largely ignored.
Nevertheless, the Procuracy Institute seems to have developed a more
coherent plan and made greater headway on training issues than the
Judges Institute. That said, certain individuals within the Judges
Institute seem to be working on valuable projects, such as the
information network. The Shanghai Judges Association and to some extent
the Zhongnan training programs also seem to have produced positive
results or at least to have begun to think about and address problems
that the Judges Institute is only beginning to grapple with.
Government entities or NGOs
Many foreign agencies have worked extensively with NGOs in other
countries. In China's case, social organizations are more closely
controlled and likely to be affiliated to one degree or another with a
government organization. They are in that sense ``quasi non-
governmental organizations'' or ``Quangos.'' In some cases, an entity's
non-government status may open up possibilities for experimentation
that would not be possible with government entities. Such organizations
may also be less bureaucratic.
Nevertheless, many reforms will require support of government
entities, either to disseminate the results or to translate the results
into legally binding legislation, changes in the regulatory structure
or institutional changes. Thus, in some cases, an entity's quasi-
governmental status may offer benefits.
In any event, some projects can only be done with government
entities. Moreover, in some cases, such as protection of lawyers,
Justice Bureaus have proven more effective than bar associations.
Central versus local or regional
Although legal reforms are often described as top-down, in fact
many initiatives for reform come from those working on the front lines.
Central authorities then gather information from the various local
experiments and disseminate it. Accordingly, there is a role for both
central and local entities.
To date, many foreign-funded projects have been rather center-
centered. However, one of the problems is that many central laws and
center-initiated reforms are out of step with the reality on the
ground. As a result, the gap between law on the books and law in
practice continues to be wide. Moreover, as noted repeatedly, academics
and others in central agencies are not always aware of the concrete
problems facing those in the trenches. In addition, the vast regional
diversity and differences between urban and rural areas requires more
input from below.
Foreign actors might wish to fund more projects outside of Beijing
and more projects by those on the front lines, particularly those that
produce information or that take a different approach to a common
problem and are likely to lead to pilot programs being expanded to
other regions. To be sure, there is a limit to how much funding there
can be for local projects. Thus, supporting information networks is
particularly important. In funding empirical projects, foreign actors
should also try to ensure that the projects are methodologically sound
and representative of all (or at least a significant part) of China.
Other suggestions
Spread the wealth. It is important to cultivate long-term
relationships, and supporting repeat players reduces certain
transaction costs. However, many of the usual grantees over time
develop access to many other funding sources. It is equally if not more
important to support young and upcoming talent, and to support projects
that are not Beijing-centered.
Specificity of project design and goals and a sound
methodology. In general, projects seem to be more successful when they
have clearly defined (and realistic) goals and the methodology is sound
and well thought-out in advance. In some cases, giving money to certain
highly qualified individuals or institutions based on their previous
track record, a general proposal and an interesting and important topic
may produce results. But on the whole, clearly defined projects are
preferable.
Many of the most promising possibilities for reform are
being generated by those on the front lines. Accordingly, academics
should be encouraged to work together with practitioners both in
designing and executing projects. Such projects are more likely to have
clearly defined and realist objectives and lead to concrete reforms
that are implementable.
Follow-up. The results of projects could often be better
utilized or improve through follow-up programs. It is important to make
sure that the results of projects are disseminated broadly. For
instance, in one case, a number of judges' manuals and publications
were produced. But is not clear whether these works are being used in
the courts as intended. More generally, donors should follow-up major
reform initiatives with empirical studies to ensure the reforms are
consolidated, as noted above.
A greater effort should be made to take advantage of what
others are doing and to facilitate and coordinate the exchange of
information. For instance, a number of foreign agencies have funded
several different entities to research evidence rules. However, it is
not clear that there have been any attempts to bring the various
project sponsors together.
Trips abroad for senior leaders are frankly all too often
a boondoggle. While in some cases they may serve a valuable purpose,
they require certain conditions. First, the agenda must specify in
detail what issues are to be discussed and what the goals are. The
participants should actually be knowledgeable about the issue and
capable of effecting change upon their return (which means not too
senior and not too junior, since senior people are often figureheads
and junior people lack any power to change things). Prior to departure,
preliminary research should be done by academics and others within the
various institutes on the topics so that the participants are up to
speed and there is a foundation for discussion. Conversely, those on
the foreign side should be carefully selected and well-briefed, either
by PRC or foreign experts on Chinese law who are familiar with the
issues. Language is also an issue. Excellent translators are required--
though based on personal experience I would note that simultaneous
translation is almost always a disaster.
Research trips for senior and junior academics or
researchers within institutes also should be used with care. Too often,
the participants do not have a clearly defined research agenda or the
language skills to get much out of a trip abroad. Moreover, in many
cases, it would be more efficient to arrange for materials to be sent
from various countries so that the researcher could gain a truly
comparative perspective. The materials would then also be in China and
available to others. To that end, donors might consider identifying and
supporting a librarian assistant at a major university in various
countries (i.e., several librarians, perhaps on a part-time or hourly
basis). The costs saved from travel abroad could be used to offset the
costs of the librarians and of obtaining and providing materials (many
of which are now in electronic form and thus do not involve major
shipping costs). In addition, in selecting candidates, especially for
study abroad, a thorough review of their prior written works should be
conducted to ensure that they have the necessary skills to do research.
The use of foreign experts and distinguished speakers
often suffers from the lack of understanding on the part of foreigners
of China's system and what is happening in China; too little time for
discussion and free exchange of ideas; language problems; and problems
disseminating the information to a larger audience. To remedy these
problems, foreign experts need to be extensively briefed by those who
understand China. They should also be given a list of specific issues
to address in advance. Where possible, they should prepare a written
draft, which can then be translated into Chinese in advance. More time
would then be spent on discussions and Q&A, which is often most
valuable to the participants who have their own questions and issues
they want addressed. Again, excellent translators are essential. The
use of tapes and CDs or the publication of summaries may increase
dissemination.
Given limited resources, it is imperative that there be
greater use of technology to collect information and disseminate
results. The information networks are a good example, as are the CDs
produced by the Ford Foundation showing a mock trial, and the
Procuracy's exploration of distant learning. While distant learning and
the use of CDs, etc. may not be as good as having small personalized
classes taught by leading experts, there is really no choice but to
adopt a second best approach and use more technology.
Many research projects suffer from poor methodology. In
part, that is a function of the difficulty of doing research in China.
Nevertheless, there is still considerable room for improvement. One
suggestion would be to encourage legal researchers to work with
sociologists and others who are better trained in empirical
methodologies. Another suggestion would be to create an Empirical
Research Center (much like what we have at UCLA Law School) and hire
some Ph.D.s in statistics and others with experience in designing
survey instruments. Applicants would then be required to work with the
Center to develop their survey instruments and to do the statistical
analysis.
III. LEGAL RESEARCH
Some agencies fund legal research, both basic and applied. Although
academics and researchers within other entities do both types,
academics tend to do more of the former and other researchers more of
the latter.
A. Academics: The Need for More Applied Research
In the mid 1990s, the announcement of the official policy--``rule
the country in accordance with law, establish a socialist rule of law
state''--stimulated debate about the meaning of rule of law and the
purpose and manner of legal reforms in China. PRC academics held a
number of conferences on such topics and produced a number of
theoretical and practical books and articles on rule of law. As such,
academics have played an important role in the legal reform process.
Nevertheless, problems remain. Much of the theorizing about legal
reforms has been based on a Western (i.e., a liberal democratic)
conception of rule of law and has assumed legal, political and economic
institutions and social conditions and values that are not present in
China and in some cases not likely to be realized in China anytime
soon. Alternatively, more critical or nationalist legal scholars--
noting the difficulty of transplanting foreign institutions, practices
and values to China--called for rule of law with Chinese
characteristics or emphasized the need to rely on native resources
(bentu ziyuan). Unfortunately, they generally failed to specify in any
detail what these native resources were or to articulate an alternative
theoretical basis for, or conception of, rule of law.
As a result, those on the front line of legal reforms (judges,
prosecutors, legislators, lawyers and officials in government
agencies--collectively practitioners) complain that legal theorists
have failed to provide an adequate theoretical basis for reforms.
Practitioners claim that reforms are chaotic and out of control--there
is no guiding plan. The failure to think through larger issues such as
what the purpose of law in China is--or rather, what the purposes of
law in China are--results in haphazard, inconsistent and ill-conceived
reforms that often do as much harm as good. Practitioners also argue
that academics are out of touch, too idealistic and unrealistic about
the possibilities for reform. In addition, they claim that academics
rely too heavily on the US and common law system, or that academic
reformers latch onto one aspect of a foreign legal system without
understanding how all of the parts relate. For example, civil trial
reforms led to a more adversarial process as in common law states. Yet
the reforms were not accompanied by changes in the process for pre-
trial discovery. Nor did the reformers give adequate consideration to
the role and capacity of Chinese lawyers and their ability to
effectively present their client's case.
To be sure, the importance of theory for reforms should not be
overstated. Few countries have successfully implemented rule of law in
accordance with some preordained theoretical blueprint. Legal reforms
are necessarily evolutionary, context-specific and path-dependent.
Moreover, China is increasingly pluralistic. There are important
differences in the conceptions of rule of law and the different
emphases in the purposes of law among central leaders, local officials,
academics and Chinese citizens. There are also differences within these
broad categories as well. Urban and rural residents are likely to
experience law in different ways; business people and workers are
likely to have different demands from the legal system. And surely not
all central leaders think alike. Thus, no single view of law or single
theory can capture the diversity of perspectives. A variety of
theoretical perspectives may be needed.
The diversity of perspectives may undermine or at least complicate
efforts to mediate conflicts of interest and develop an overall plan
for legal reforms. Nevertheless, there is some value in clarifying
different theoretical positions and considering their potential impact
on legal reforms, in part to facilitate an informed debate about the
merits of the various conceptions. Further, it is possible and indeed
likely that some reforms will receive broad-based if not unanimous
support, notwithstanding the differences in theoretical perspectives.
Thus, one of the tasks is to identify common ground and opportunities
for engagement, cooperation and progress. But that requires that
academics and theoreticians be intimately aware of what is happening on
the ground and of the day-to-day problems and constraints facing the
various institutional actors. In short, they must combine theory with
practice and base theories on a firm empirical foundation derived from
survey work and case studies. What is needed then seems to be creative,
constructive, empirically based theory by academics personally engaged
in legal reforms.
Some specific suggestions
It might be useful to hold a conference to (i) explore in
a systematic and serious way possible alternative theoretical bases to
a rule of law with Chinese characteristics; and (ii) attempt to develop
an overall plan for legal reforms. In either case, I would suggest
including political scientists, sociologists, economists and
practitioners rather that just legal scholars.
Moreover, academics themselves have complained that they
have little impact. In part, this seems to be because academics do not
disseminate their works widely or effectively. Accordingly, there
should be some proposal to do more than hold a conference. At minimum,
decisionmakers and practitioners should be invited to the conference; a
volume should be produced; and efforts should be made to publish
shorter essays in relevant specialized publications like Fazhi Ribao
(Legal Daily) or other publications aimed at judges, procuratorates or
the police as well as generally circulated newspapers. The choice of
publisher is also important. As Chen Weidong, Professor of Law at China
People's University, noted, he opted for Zhongguo Fangzheng Press
instead of the more academically prestigious presses because of the
politically sensitive nature of his research and the political
background of the press.
Donors might also consider funding what I would call mid-
range theoretical and comparative work. At this stage, there is little
need to fund general studies of legal reform, civil and common law
systems, comparative judicial systems, law and society, and the meaning
and significance of process.\14\ Rather, these topics should be
approached from the perspective of real issues identified by
practitioners. For example, a number of judges and others have noted
that the change to a more adversarial process without the accompanying
features of a common law system (such as discovery and evidence rules,
etc.) has led to problems. Thus, there does appear to be the need for
academics and others to approach the issue of civil versus common law
systems through the particular prism of China's own circumstances and
the efforts to overhaul the civil and criminal trial process.
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\14\ This is not to deny the importance of such topics. However,
given limited funding and the desire to fund projects that will result
in concrete improvements in the legal system, academics can explore
these topics on their own.
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On the whole, however, funding should be reserved for
more specific applied research projects identified by practitioners.
Thus, academics have played a valuable role in drafting legislation
(Contract Law, Criminal Procedure Law, Evidence Laws, etc.). They also
have a valuable role in researching specific hot issues: e.g., the
right to silence; protection of witnesses; security law issues such as
insider-trading rules, etc. Whatever issue is identified by
practitioners, academics can research how other systems handle it,
prepare a background report for practitioners, prepare a briefing
report for foreign experts asked to lecture on that topic, etc.
In general, academics should increase their cooperation
with practitioners if they want to increase their relevance and impact.
(Of course, some academics will simply prefer to research whatever
interests them, without regard to its potential impact.) While that may
mean practitioners are taking the lead in defining the research agenda,
the research that is done is likely to have a greater impact.
Academics should also do more empirical research, again
where possible with practitioners, to overcome the impression that they
are out of touch with reality or that their proposals are not feasible.
In carrying out comparative research, academics should
look more to Taiwan and Asian countries, particularly those at (or
recently at) more similar levels of economic and institutional
development.
B. Research by the Courts (and Other Entities Like the Procuracy)
In many ways, the challenge facing researchers in courts, the
National Judges Institute, etc. are the mirror image of those facing
academics. On the one hand, because of their institutional affiliation,
they are more likely to know more about what is happening on the ground
and be able to identify real problems and suggest practical solutions.
But they are not as well situated in terms of resources or contacts to
do basic or comparative research. Moreover, although a number of
projects called for practitioners to produce written products,
practitioners are busy and less diligent about actually carrying
through on their writing obligations, and in many cases no product was
produced. The written products of practitioners may also suffer from
poor methodology and a limited perspective. In some cases,
practitioners seem to be working on similar projects as others without
any awareness of what has been or is being done by others.
Again, a few points might be worth considering:
Both academics and practitioners would benefit from
closer cooperation. Practitioners have a better sense of what the day-
to-day issues are; academics have the benefit of more resources and
perhaps a broader perspective. Thus, practitioners should take the lead
in identifying pressing issues and then work with academics to come up
with practical solutions based on China's own circumstances and the
best practices elsewhere.
Practitioner researchers could also play a valuable role
in summarizing academic articles on theoretical issues or other key
issues and publishing the summary in trade journals.
Another possibility would be to have a column each issue
on a particular topic (identified by those in the trenches). The column
would summarize local experiences and solutions. Academics would be
asked to comments as well. The National Judges Institute journal, Falu,
or the information network would be good places to hold such a
discussion.
The Institute's journal, Falu, might also consider a
section just listing and summarizing major new developments: laws,
cases, and judicial interpretations. Interested parties could then
raise questions or offer comments on the information network.
IV. JUDICIAL TRAINING
Judicial training programs face a number of challenges: (i) there
is an incredibly large number of judges; (ii) judges possess different
levels of legal knowledge; (iii) judges in rural areas face different
types of issues than judges in urban areas; judges in higher courts
face different issues than judges in lower courts; (iv) good judges are
busy and not often available for training; (v) training occurs in many
different places, at different level courts; (vi) it is not clear how
to take advantage of judges who are trained to disseminate knowledge to
those who were not at the training sessions; (vii) it is hard to
evaluate the impact of training; (viii) the National Judges Institute
is bureaucratic and slow-moving; (ix) it is difficult to find people
with the requisite theoretical, legal and practical knowledge to do the
training; (x) there are as of yet no appropriate materials for judicial
training.
In light of the above:
Donors should try to work with lower level training
entities to develop materials and pilot programs that can be presented
to the National Judges Institute for consideration/adoption. The
national level entities could then offer a menu of program choices
based on the experiences of different locales. Obviously, funding local
training such as the Shanghai Judges Association or Zhongnan program
has distinct limits. Such programs only reach a small number of judges
relative to the total number of judges to be trained. Thus, the main
value of such programs lies in their ability to serve as pilot programs
and to experiment with different teaching methodologies and approaches.
Unfortunately, at least in the case of Zhongnan, teaching method still
seems to be a lecture format largely by academics using materials
designed for undergraduates, with little input from participants.
Different courses should be developed for different types
of judges. While there may be a core part of the course that is similar
(such as a general theoretical section, the part on the role of judges
in a modern legal system or a section on professional ethics), much of
the content will vary. The courses can be divided along the following
lines: (i) presidents and vice presidents versus other judges; (ii)
different courses for those who need remedial education and those who
do not--it should be noted that the need for basic remedial courses
should diminish over the next 10 years; (iii) courses should also have
a general component and then a specialized component depending on the
judge's special area of responsibility: civil, criminal, family, IP,
etc.
As for content, it seems there are four main components:
(i) legal theory--the role of a judge, what judicial independence
means, etc. (the need for this type of theory should decrease over the
next 10 years as legal education improves and the judiciary's role in
society becomes clearer); (ii) general techniques of judging: legal
reasoning, writing judgments, running a trial, managing evidence, etc.;
(iii) professional ethics; and (iv) substantive law. Surprisingly, a
number of judges indicated that they found the general legal theory
refreshing and eye-opening.
As for instructors, Zhongnan and the National Judges
Institute have relied on leading academics and judges to provide much
of the content. Although the NJI has instructors, they actually do
little instructing, mainly because they are young and inexperienced and
cannot command the attention and respect of the judges who come for
training. Obviously, relying on top academics and judges is
problematic: they are busy; they have only limited time to spend on
training; and the time they spend on training takes them away from
research or court business. Accordingly, these valuable resources
should be used wisely. For example, leading judges and academics should
play a role in designing an effective curriculum and course materials.
Second, their lectures should be taped or transmitted through distant
learning means. It makes little sense to run around to five different
places giving the same lecture. To be sure, much of the value comes
from discussion. However, it appears that few instructors leave much
time for discussion anyway. Moreover, it may be possible through
distant learning techniques or the use of the online information
network to make the process more interactive.
There should also be more efforts to train up the
trainers, particularly at lower level courts, and to provide them with
practical guidance for carrying out their jobs.
Some judges have also complained that instructors may not
be sufficiently knowledgeable to address the specific legal issues they
are dealing with in their cases. Posting such questions on the
information network might provide some interesting discussions. In
general, as apparently is the case in other countries, most of the
training should be done by former judges or judges who are rotated into
and out of the training program.
Relying on materials used in law schools to teach
undergraduates is clearly not appropriate. Materials should be more
practical and interactive. It might be useful to start with materials
used in night schools. The materials from the Procuracy Institute might
also be useful. Song Bing thought that one translated work on legal
reasoning and some of He Weifang's collected essays on the judiciary
and social justice could be useful.
Materials and courses in general should also be designed
to teach judges general skills such as legal reasoning and how to
analyze issues. They should also serve the purpose of teaching judges
how to do research (where to find laws, use data bases, etc.). Clearly,
with the rapid pace of change in existing laws and the development of
new areas of law, judges will regularly be confronting new issues that
require the ability to master new bodies of law. Over time, there will
inevitably be more research tools available (annotated law data bases,
etc).
In general, existing programs suffer from the lack of
input from participants and a lecture style of teaching. Judges should
be encouraged to submit questions from their own cases in advance.
During training, the instructor should try to facilitate discussion of
the tough issues (rather than simply providing ``the answer''). Cases
provided by judges can also provide the basis for a spontaneous
demonstration of how to do research and analyze new laws.
Once the session is concluded, participants should be
asked to fill out a form evaluating the instructor, the course, the
materials, etc., and offering suggestions for improvement.
To increase the incentive, participants should be
required to take an exam.
A conference on training and education
It may be time to hold a major international conference on training
and education in light of the passage of the unified exam requirement
and the accumulated experiences with judicial training. The conference
could focus on training of judges and procuratorates. The main invitees
would be foreign experts from training institutes in other countries.
In addition, some academics could be invited to discuss basic legal
education.
To be useful, there would need to be a specific agenda. Foreign
China law scholars and PRC academics/judges could prepare a background
report on China's situation. The foreign experts would be asked to
prepare a general introductory report on their institutes and
practices. The Chinese participants would then select specific topics/
issues. The foreign academics would be asked to prepare written reports
in response to the specific topics/issues.
V. CENTRALIZED LEGAL REFORM COMMITTEE
Many practitioners and academics alike suggest that a rule of law
or legal reform committee (or working group) is needed. They argue that
reforms are out of control. In some cases, local governments are
forging ahead with ill-conceived plans. For example, some academics
criticized one region's experiments with the right to silence for being
in violation of the Criminal Procedure Law and counterproductive. In
other cases, some regions may come up with solutions to problems
confronted by other localities but the information is not disseminated.
The center, for its part, often announces reform initiatives that are
out step with local conditions. As noted, central authorities also fail
to follow up on reform initiatives to verify that they are being
implemented. Conflicts of interest among different entities leads to
conflicting reforms that undermine each other and produce confusion at
the lower levels.
Accordingly, the committee would be charged with, inter alia,
coordinating reforms, gathering and disseminating information,
mediating conflicts among different interest groups and entities and
devising an overall, long-term plan for reforms. While such a committee
might play a positive role, it is no panacea. Indeed, it raises a
number of important issues.
What type of committee: Party, government or NGO?
Some people have suggested the committee be organized as a civil
organization while others argue the committee should be established
under the NPC. The arguments for a civil organization are that an NGO
might be freer to discuss many of the sensitive political issues
associated with legal reforms, such as judicial independence. Moreover,
an NGO think tank could float ideas in the media and among State actors
and build support for controversial reforms.
On the other hand, one of the disadvantages of an NGO think tank is
that it might not have a sufficiently strong and identifiable political
base to be effective in getting its reform agenda implemented. As
noted, academics have complained about their lack of impact on China's
decisionmakers. This problem might be alleviated to some extent by
including representatives from NPC, SPC, Supreme People's Procuratorate
(SPP), Ministry of Public Security, Ministry of Justice (MOJ), etc.
Nevertheless, the organization would not have as firm a political base
as it would if it were established under the NPC.
Some have suggested that an appropriate model might be Tigaisuo (a
government think tank). However, Tigaisuo was closely associated with
Zhao Ziyang, and consisted of economists with a fairly clear market-
oriented preference. In contrast, there are no obvious top leaders to
serve as patron of the Legal Reform Committee. Moreover, there is
likely to be more division in values and perspectives among the members
of any such Committee than in the case of Tigaisuo. For example, the
Committee would presumably include representatives from the NPC, SPC
and SPP, MOJ, as well as academics, lawyers and representatives from
public security. Yet one of the reasons the Committee is needed is the
existing conflict of interest between these entities. Thus, there is
less likely to be common ground on important issues than in the case of
Tigaisuo.
A committee under the NPC would provide a more solid political
base. However, the Committee might then become very bureaucratic. It
might not be able to address sensitive issues as readily. Moreover, the
NPC is itself a player. For instance, one of the current conflicts is
between the NPC and the courts with respect to supervision. The NPC and
the SPC are also currently in tension with respect to legal
interpretation. The recent SPC reply making the constitution
justiciable creates the potential for even greater conflict if the SPC
tries to assume more of a role in constitutional interpretation. More
generally, it is doubtful that the NPC has sufficient political
authority to mediate conflicts between the SPP and the SPC, for
instance. To be sure, the NPC (through Fagongwei, the NPC's law-
drafting committee) did play a coordinating role in mediating conflict
between the courts and procuratorates with respect to interpretation
and implementation of the Criminal Procedure Law. However, whether it
would have sufficient authority to mediate more fundamental conflicts
that could result in shifts in the balance of power between the two
entities--for example with respect to the procuracy's right to
supervise the court--is more doubtful.
As the ultimate authority, the Party might seem like a logical
place for such a Committee. Perhaps the Political-Legal Committee could
take on the role, as suggested in the past by some PRC academics. A
Party-based Committee might be better positioned to force recalcitrant
entities to give up some of their powers. Moreover, one of the issues
is the Party's role in the legal system. A Party-based Committee might
be better situated to oversee changes in the Party's role. On the other
hand, housing the Committee under the Party would probably result in
the Committee pursuing a more conservative (what I would call a Statist
Socialist) agenda than would otherwise be the case.
Further, whether any entity has sufficient knowledge how best to
restructure and the authority to bring such change about may be
questioned. Thus, arguably the primary benefit of the committee might
be to create a forum for discussing the issues, publicizing the
problems and debating possible solutions. At some point, the problems
may become so severe that all parties recognize a solution is
necessary, thus making change possible.
The best approach might to establish both an NGO think tank and a
Committee under the NPC. The relationship between them could be one of
loose association, with some people being members of both to facilitate
transmission of information and coordination and cooperation.
The need for realistic expectations
One can appreciate the desire for an overall, coherent plan for
reforms. Clearly, a Committee could be useful in providing some
structure to reforms, gathering and disseminating information,
coordinating reforms across departments and ensuring that reforms work
together as a package rather than undermining each other, and
sequencing reforms so that powers granted an entity are consistent with
its level of development and capacity. The Committee could also mediate
conflicts of interests in some cases. At minimum, it would provide a
forum for different government entities to explain their positions and
look for common ground and ways to resolve conflicts.
Yet an overall reform plan would be difficult to devise. Arguably,
the Committee's task in devising such a plan would be easier if it were
able to draw on various theoretical models for reform. As noted, it is
doubtful that any single theory will prevail given the diversity of
perspectives of the fundamental purposes of law and differences in
social and political philosophies. In any event, any such theory would
be too abstract to be of much use. However, if theoreticians are able
to come up with various alternative theories of rule of law, they might
be useful in at least clarifying where there is common ground and where
there are differences.
Even assuming it were possible to achieve consensus on the rough
outline of some long-term reform agenda, the agenda would necessarily
be fairly abstract and subject to revisions as the situation evolved.
While there is no shortage of technical issues requiring attention, for
example, identifying the issues and the challenges and the
possibilities for improvement is largely something that must come from
those on the front lines. This is not to deny the value of long- term
planning. Pan Wei and others have sketched a long-term rule of law
agenda that clarifies the priorities and sets out a reasonable time
table, and thus serves a useful purpose for guiding reforms. However,
Pan Wei is a political scientist. His broad outline could be filled in
to some extent by legal scholars and practitioners with a better
understanding of the changes in laws, institutions and practices that
are required to implement rule of law.
CONCLUSION
As a foreign observer, I do not pretend to have sufficient local
knowledge to offer detailed suggestions about specific areas of reforms
or specific suggestions as to which reforms are most feasible or likely
to succeed. Accordingly, I have tried to present an overview of
reforms, leaving those with more detailed knowledge to suggest specific
reforms.
Clearly, one of the difficulties facing donors is that there is no
shortage of deserving funding opportunities. One could make a good case
for funding theoretical projects and applied projects, academics and
practitioners, central or local projects, and any or all legal
institutions. Moreover, in many cases, it is hard to assess in advance
which projects are more deserving or likely to have an impact. Indeed,
even looking back, it is often difficult to measure the impact of
specific projects. For a long time, exchange programs were considered a
failure because many people failed to return to China. But in recent
years, many of those who stayed abroad are now making their way back to
China, often bringing with them a much more sophisticated understanding
of foreign legal systems and much greater technical skills than they
would have brought back had they returned immediately. Similarly, it is
hard to say how much a senior official will get out of a trip abroad.
While there may be no immediate applications, such trips might result
in a more fundamental change of attitude that results in the official
adopting a more positive approach to reforms.
Nevertheless, decisions must be made, even if based on limited
knowledge. I would emphasize the following points:
The focus should continue to be institution-building, but
donors may wish to shift focus from the courts to the procuracy and
public security or at least adopt a more balanced approach where
projects are chosen based on their merits rather than compliance with
some predetermined agenda. In particular, donors may wish to support
cutting edge pilot programs that could then be supported by other
donors if they are successful.
While theoretical projects in some cases may be worth
pursuing, in general projects should focus on concrete issues
identified by practitioners, with academics playing a more
complementary role. Projects that involve cooperation between
practitioners and academics should be strongly encouraged.
Projects should have a firm empirical basis, and be
followed up by empirical studies to ensure that results are
consolidated and to revise strategy and respond accordingly if need be.
Donors should strive to increase information gathering
and exchange, particularly among academics and those on the front
lines, and among different government entities and other entities that
play a role in the legal system.