Since the middle of the last century, the ideal of constitutional legitimacy has been grounded on the foundation of the concept of the rule of law. The rule of law is usually understood in two senses: First, in its process aspect – as embracing firm limits on an arbitrary use of power, that is, of the use of the state power when not grounded in law; and second, in its substantive aspect – as vesting the state with a critical role as guardian of a set of foundational communally embraced substantive norms that are to be protected and furthered through the use of state power grounded in law. In the West, the foundational expression of this substantive aspect has taken on a variety of aspects. For example, in the United States, process itself (as an aspect of fairness, understood as substantive due process or equal protection) has assumed an important foundational substantive rule of law quality (Backer 1997), along with the overarching substantive principle of “democracy”(Bush 2004). In Germany, the underlying great substantive rule of law norm is “human dignity” (German Basic Law art. 1), embraced, in part, as a consequence of the experiences of Germany between 1933 to 1945. As a formal expression of commands, rule of law in both of its aspects is usually associated with positive acts (law) emanating from legitimate institutions of state power representing the political community (Dowdle 2002; Peerenboom 2002).
The focus on rule of law analysis is usually limited to the formal state apparatus (Blanchard 2005). The institutions of the state apparatus, its government, are usually synonymous with those political institutions through which the legislative, executive and judicial authority of the people are exercised. It is almost always fixated on the governance norms contained in the state’s constitution—the document understood as the highest expression of the political will of the people in their role as the ultimate sovereigns, that is, as the supreme holders of state power. All other entities or expressions of power within the state are viewed as subordinate to the formal system of state power.
Political parties are viewed as “factions” in the sense understood by James Madison in Federalist Paper No. 10: “By a faction, I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse or passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community” Madison, The Federalist #10). Such factions do not represent the people as a sovereign body. Rather, they are the expression of individual will, even in collective form. Thus, Madison also refers to: “Complaints are everywhere heard…that the public good is disregarded in the conflicts of rival parties” (Madison, The Federalist #10). Thus, from the earliest period of the American Republic, there was a strongly guarded separation between a state and its instrumentalities (as representative of the entire people), on the one hand, and factions or political parties (as representative of the will of individuals), on the other hand.
There can be no formal governance power that exists outside of the state and the institutions identified in its formal governance documents. Thus, the West traditionally separates the ideology of political power, which is thought to represent the personal views of individuals rather than the people as a whole, from the institutions of the state, which is thought to be bereft of political ideology other than to the extent inherent in its very structure through which the will of the people as a whole may be expressed.
On this basis, there has been a sort of standardization of the analysis of ‘rule of law’ issues in the People’s Republic of China. It goes something like this:
China has sought to conform its institutions to the norms developed in the West. China has created state institutions as those organs of government where the will of the people as a whole can be represented. China has separated from these representative organs of state power the institutions of the Chinese Communist Party (CCP). That separation confirms the Western intuition that the CCP is no more than a faction; the CCP can represent (at best) the will (however powerful) of a mere political party (albeit one with current constitutional status).
Having separated politics from institution, the constitution necessarily focused almost exclusively on the institutions. The Chinese Constitution of 1982 has, as a formal matter, embraced the idea of the rule of law in its process aspect. The Preamble declares that the Constitution “is the fundamental law of the state and has supreme legal authority.” Article 5, as amended in 1999, emphasizes that “the People's Republic of China practices ruling the country in accordance with the law and building a socialist country of law." However, the Chinese Constitution has avoided any attempt to embrace rule of law in its substantive aspect, even as a formal matter within the black letter of the Constitution itself. To the extent that reference is made to ideology--Marxist/Leninist, Mao Zedong, Deng Xiao Ping Thought, and Three Represents Thought, those references are to mere ideology and do not implicate rule of law issues.Moreover, even formal compliance with process rule of law aspects hides the reality of deficiencies in the implementation of these safeguards.
As a consequence, outsiders have questioned the fidelity of the Chinese state to the rule of law because of the control by a single party, the CCP, of the apparatus of state power in China, including all law making power. In one sense these arguments can be reduced to a criticism of Chinese constitutionalism as illegitimate because it lacks a basis in institutionalized moral and ethical norms. For the rule of law, these commentators suggest, China, through the CCP, has substituted, the personal desires of the leaders of the CCP. In the absence of these fundamental institutional norms, the behavior of China's leaders are essentially unconstrained--the essence of arbitrary governance in Western thought. The greatest effect is on the willingness of the political culture to tolerate a tremendous amount of personal discretion in the application of rules, and the use of personal power for personal ends (career advancement, and the like). Rule of law systems cannot be legitimate or authentic in the face of party control of the apparatus of state government because no party can represent all the people—only the institutions of the state can serve that function.
While grounded in neutral language, these arguments are, in reality, applied expressions of a particular ideology that has assumed aspirations to universalism in the period after the end of the Second World War outside of China. Specifically, this popular strain of rule of law analysis is grounded in a very specific ideal of constitutionalism that has become well developed and accepted outside of China, but which peculiar ideal is somewhat removed from governance ideals developed within the People’s Republic. The international norm system of deep constitutionalism developed since 1945 serves as the ideal against which the Chinese system is evaluated (Backer 2006). That system is “based on the idea that a universally shared system of values exists that serves to limit the extent to which any political community can express the popular (sovereign) will in their constitutions. These universally shared (and imposed) norms are developed and policed from out of an on-going discussion among the community of nations, from out of which norms are developed through consensus. These norms focus on the limits of state power, especially as expressed against individuals, represent the highest expression of universal political will, and are meant to provide the foundation for the rule of law as expressed within the constitutional traditions of a state” (Backer 2006). Most prominent among these norms are “democracy,” and “human dignity,” from which globalized constitutional norm making is grounded within a complex of social, political and economic rights articulated in an increasing number of pronouncements from international organizations.
These approaches to an analysis of China and of Chinese constitutional developments tend to tell us more about the cultural perspectives of the critics of Chinese developments than about China itself, the ostensible object of that analysis. In this respect my analysis shows some sympathy for Donald Clarke’s position that the standard critiques are based on an “imperfect realization of an ideal” or IRI approach to comparative law. Clarke argues that systems are measured and analyzed in terms of an ideal state chosen by the analyst. The system chosen is usually a western political system—the United States or a European state. As a consequence, any sort of western-based rule of law paradigm contributes little to an understanding of the evolution of Chinese governmental institutionalism. (Clarke 1999). This view, in one form or another, has served both to problematize rule of law analysis especially as applied to East Asian states (Peerenboom, 2004; Clark 1999), or its application to China (Peerenboom 2002b).
As applied by commentators to Chinese constitutionalism, these ideals usually translate into a criticism of the Chinese Communist Party as an impediment to the evolution of the instrumentalities of the Chinese state to a “rule of law” government. Alternatively, these commentators seek to solve the “problem” of Chinese rule of law transition by concentrating on the formal institutions of government and marginalizing the CCP. These generalized criticisms or marginalization of the CCP takes a number of forms, even among those sensitive to the realities of Chinese governance. Eric Orts, for example, is one of a number of scholars who seek to unbundle democratic theory from rule of law analysis. But the focus there is on the institution of rule of law within the institutions of government with the CCP playing, at best, the role of an outsider/spoiler in this institutional context (Orts). Pat Chew also suggests the possibility of an institutionalized rule of law regime within the Chinese state that is not necessarily tied to Western notions of democracy (Chew 2005). Others have also suggested the difficulties of squaring the notions of rule of law with development in East Asia (Ohnesorge 2003b).
Randy Peerenboom shares some sympathy for Clarke’s position but also focuses on the institutions of the Chinese state rather than on those of the Chinese Communist Party. He focuses on distinctions between “thick” and “thin” notions of rule of law. Focusing on attainment of thin rule of law governance in China, Peerenboom suggests that the rule of law in China is in a very youthful stage. He explains that China must focus on the process aspects of the rule of law and that a complete transformation awaits the folding of the Chinese Communist Party into a traditional state system in which it will serve its purpose as one of many political parties (Peerenboom 2002a).
I want to suggest that this approach is unsatisfactory for three reasons:
First, it misses an important recent development in the specific context of Chinese constitutionalism—the growing importance of writing specific ideological frameworks into the constitution. This may suggest a greater willingness to advance the implementation of ideology, and the substantive structure it represents, through state power grounded in law. “Ideology has become again an important vehicle for communicating regime values to Party cadres and the masses” (Hepeng 2004, 262). Ideology serves to supply the normative bases of appropriate institutional action that serves to define the relationship between state/supreme political entity and the individual. However, because the norm structures of Chinese ideology articulated through the CCP remain either alien or antithetical to their usual Western counterparts, they remain opaque outside of China.
More importantly, it dismisses as ideology developments in Chinese constitutionalism that in Western States might be characterized as the development of substantive or deep constitutionalism. It has struck me as ironic that the American President’s ideological campaign for democracy, accountability and social responsibility should be treated as part of the important discourse of values constitutionalism in the United States, and yet the important conversations within China about the role of citizen, state and party be marginalized as “mere” ideology. But it is also important to accept that Chinese constitutional conversations will occur in a manner distinct from, and using forms that are not familiar to, to Western approaches to constitutionalism. While it is important to judge these efforts, both within and outside of China, it is also important to base those judgments within the framework that China has chosen for itself.
Second, it misjudges the theorizing of the CCP. On the one hand, it takes the ideological campaigns of the CCP too literally. As a consequence it tends to minimize the importance of this theorizing. Characterized as mere CCP sloganeering, ideological campaigns, it is suggested, are little more than cynical attempts to manipulate Chinese public opinion with no intended substantive effect. On the other hand, Western analysts do not take CCP ideology literally enough as little more than the politics of individual power by other means. Ideology serves merely to mask the arbitrariness of the CCP’s culture of the exercise of personal power with no limits.
Third, it misses the important institutional place of the Chinese Communist Party in the analysis of rule of law in China (Backer 2004).
Let us focus on this third, and most important element of Chinese constitutionalism. In Western analysis, the CCP is the elephant in the room that no one wants to acknowledge. It is either viewed as an impediment to attainment of the rule of law or as a vast and unruly faction that stands between the people and the state apparatus, essentially the group that prevents the development of democracy and independent state institutions capable of supporting a strong rule of law (in process aspects) state.
I suggest that no analysis of the rule of law in China is possible without taking into account the institutional role of the Chinese Communist Party both within and outside the apparatus of the state. This requires taking seriously the expression of the place of the CCP as the “party in power” for constitutional purpose. It also requires looking at the CCP not as a western style party—like the faction of Madison’s theorizing—but as an essential element of the construction of state power.
To a large extent, then, the state apparatus is split into two parts—one largely following the pattern of institutionalized governance in the West, and the other following the understanding of the fusion of government and politics inherent in the construction of state socialism in China since 1949. This split is very important. In a larger sense, it shows the difficulties of constructing institutions that can at the same time serve to communicate with other states, and remain true to the substantive basis of the social and political order of the state. The outward manifestation of the state apparatus, its formal organization of the institutions of state power, is the western style manifestation of the government of a proper political entity sporting the indicia of state institutions in a form understood by the community of nations. This is the face of public organization—what the rest of the world expects to see, and the place from which they apply the standards of appropriate conduct.
The inward manifestation of the state apparatus, its substantive values, is represented through the formal institution of the CCP. In the context of China, the apparatus of the CCP as a manifestation of the ideological or substantive aspects of rule of law, serving as the representative of the genius of the people as a whole in upholding the foundational normative structure of the state—Marxist/Leninist, Mao Zedong, Deng Xiao Ping Thought, and Three Represents Thought. The CCP serves as the institutional representative of the people and thus serves the important state purpose of infusing the formal institutions of state power with a normative basis for the exercise of political power. That normative basis has found expression in a number of important pronouncements touching on the separation of individual from communal power and each worthy of implementation. They include the Four Cardinal Principles (the leading role of the CCP; adherence to socialism; dictatorship of the proletariat; and adherence to Marxist/Leninist/Mao/Deng Xiaping/3 Represents Thought), Hu Jinato’s recent Two Musts Campaign (the CCP must keep a humble attitude and must keep a hardworking spirit), and the Fish-Water connection between CCP cadres and the masses.
The Chinese constitution attempts to establish the context on which these two aspects of government can come together—the formal institutions of the state and the oversight of values/governance role of the CCP. The Constitution carefully develops the overlap between State and Party. Yet, Western commentators tend to focus more on those parts of the constitution most like their own—the sections dealing with the formal organization of the state. They tend to be blind to those portions of the constitution that open a window on that other important aspect of government—the relation of government and CCP—that is, on the relationship between institution and ideology.
The state itself can be considered complete only when the formal state apparatus is joined with the apparatus of the CCP. For the West, this is difficult to grasp—impeded by the Western limitations of considering parties as something unconnected with the state institution building. On this basis it is easier to understand the CCP’s own understanding of ‘rule of law’ as a hybrid concept:
Ruling the country by law means that the broad masses of the people, under the leadership of the Party and in accordance with the Constitution and other laws, participate in one way or another and through all possible channels in managing state affairs, economic and cultural undertakings and social affairs, and see to it that all work by the state proceeds in keeping with law, and that socialist democracy is gradually institutionalized and codified so that such institutions and laws will not change with changes in the leadership or changes in the views or focus of attention of any leader (Zemin 1997).
This requires a fusion of the outward and inward institutional manifestations of power within China:
The Party has led the people in drawing up the Constitution and other laws, to which it confines its activities. In ruling the country by law, we can unify the adherence to Party leadership, the development of people's democracy and do things in strict accordance with the law, thus ensuring, institutionally and legally, that the Party's basic line and basic policies are carried out without fail, and that the Party plays the role of the core of leadership at all times, commanding the whole situation and coordinating the efforts of all quarters (Zemin 1997).
It is only within this context that the current ideological campaign—sange daibiao (or the “Three Represents”)—assumes its importance for Chinese constitutionalism and the advancement of the rule of law culture in China.
“In 2000, his theory of the "three represents" (Sange daibiao) was first presented as the nucleus of Jiang Zemin Theory. The theory focuses on the future role of the CCP as "a faithful representative of the requirements in the development of advanced productive forces in China, the orientation of the advanced culture in China, and the fundamental interests of the broadest masses of the people in China” (Landsberger).
Sange daibiao provides an ideological basis, a deep constitutional foundation, for the position of the CCP at the center of the institutional apparatus of the Chinese state. But it does more than that—it also provides the basis through which the rule of law, as a framework for the proper relationship between state institutions (representing the collective) and the individual (as an instrument of that collective). As developed by the organs of the CCP, it is clear that sangue daibiao can provide the principles through which the framework of commonly understood rule of law constitutionalism can be adopted with Chinese characteristics.
For purposes of this essay, I will speak briefly to the parameters of this possible construction of Chinese constitutionalism, focusing on the inclusion of sange daibiao into the governance structures of the CCP after 2000 and the Chinese Constitution after 2004. Like the earlier constitutional assimilation of Deng Xiaping Theory, the adoption of sange daibiao may serve, at least as a formal matter, to further incorporate substantive rule of law elements into Chinese constitutionalism.
There has been much commentary about the Three Represents as well as about the ideological campaign conducted in connection with its promulgation.
The Three Represents can’t be viewed in isolation; its establishment occurred in the context of a campaign to open membership in the CCP to the emerging capitalist class in China (Hepeng 2004, 262), as well as the extension of the protection of property rights to individuals. An important goal is at co-opting the capitalist or market elements of Chinese society by offering them a place in the CCP in return for adherence to CCP norms, including the basic socialist foundation of state organization (Hepeng 2004, 267-269). This is an important point—it suggests the very real ways in which membership in political society in China is structured around the leadership of the CCP, and the nature of that leadership as normative rather than merely political. Given this important relationship between state and Party, the Three Represents campaign is also aimed at emphasizing the socialist character of the post 1978 reforms. “The nominal limitation to the state an Party revealed in the Three Represents is aimed at limiting abuses of power by individuals rather than at restricting the CCP’s dominance or power within the state” (Hepeng 2004, 263).
Among those who see the CCP as increasingly taking the position of a mere political party (in the Western sense) rather than as an important institution of government, it has also been criticized as a rather cynical expedient by a dictatorial faction (to which the CCP now finds itself increasing reduced) seeking to preserve its legitimacy and thus its power. And this is an important point as well—to the extent that the CCP chooses to treat itself more as a political party than as in integral part of the institutional structure of the state, then the limitations of political parties, especially as those limitations are understood in the West, will increasingly weaken the legitimacy and authority of the CCP in China, in fact, irrespective of pronouncements in official documents. That is the great trap that the Three Represents campaign clearly unveils.
Within the context of the two faces of state power in China, the Three Represents are important for a number of reasons. First, it is important because of the deepening of a new (post 1978) pattern of parallelism—incorporating changes in both the CCP constitution and the Chinese Constitution. This suggests a parallelism in institutionalization of rule of law—the CCP and its expression as state apparatus moving in lock step on rule of law behavior. Second, it demonstrates a willingness, within the CCP itself, to embrace transparency in governance. As the faithful representative of fundamental interests of the broadest masses of the people in China, the Three Represents declares a commitment to legitimacy based on its representation of the people. That faithfulness requires the retention of the confidence of the people. Third, the Three Represents can serve to limit the discretion of both Party and State officials—at least in theory. In each of its expressions of representativeness, the Three Represents emphasizes the people as a whole over the interests of any individual, faction, or interest group. It is clear that the Three Represents is meant to create and impose a great principal of fiduciary duty on Party and State officials, an obligation of acting solely in the best interests of the people that may be possible to enforce against any person exercising power in the State or the Party. The implementation is critical, but is also a harder question and treated a little in the last part of this essay. Fourth, while the Three Represents limits discretion, it does so within a system of flexible application within the particular realities of China’s position in the world. It cross-sects with the Party’s involvement as a leader of the people, the historical lessons the Party has learned from its recent past, signaling that “the practical problems of the Chinese revolution” must be solved, i.e. NOT “studying Marxism-Leninism statically and in isolation” but following Deng Xiaoping Theory; and very importantly, the understanding that “ruling the country by law…is also the objective demand of a socialist market economy,” which in turn clearly parallels Jiang’s belief that “We must never discard Marxism-Leninism and Mao Zedong Thought,” but at the same time, these latter thinkers should not be followed categorically.
The opportunities for elaboration of rule of law theory with Chinese characteristics through the Three Represents Theory were hinted at in Hu Jintao’s Party Day Speech on the 82nd anniversary of the founding of the CCP. In closing a long speech on the value of the Three Represents principles, he “listed some 14 questions, including how to improve the economy, how to expand employment, how to foster China’s “national spirit” (minzu jingshen), and how to build the CCP’s “ruling capacity” (zhizheng nengli). These questions will give party theorists plenty of scope to develop the three represents in the future” (Fewsmith 2003, 6).
The Three Represents thus highlights the basic problem of the Rule of Law in China and points to its solution. The problem of the rule of law in China, therefore, can be understood as concentrating on the resolution of the questions of the long-term fundamental role of the CCP in China, and of the relationship between the CCP and the state apparatus it has created and now dominates in the service of the masses.
Applied appropriately to the central institution of authoritative and legitimate state power in China, that is, to the institutions of the Communist Party, the Three Represents can serve as the ideological basis for solidifying the autonomy of the CCP as the legitimate source of political and ideological power within the state. Indeed, the 125-page Study Guide to the Important Thinking of the ‘Three Represents’ appears to point in that direction. “Sections 8, 11, and 12 . . . discuss political construction, affirming the importance of “political civilization”—a term officially endorsed at the 16th Party Congress and given equal status with “material” and “spiritual” civilization. These sections elaborated on the need for institution-building as well as the need for “checks and balances” and “supervision” over those exercising political power” (Fewsmith 2003, 4).
If the fundamental question of the Rule of Law in China should center on the CCP, then resolution depends on a choice of focus with significant effect on the role of the CCP in China. This is a choice that must be made by the political leaders of China. The choice will significantly affect the future institutional course of the development of China and the ultimate place of the Communist Party within Chinese systems of governance.
One choice that would be made under the traditional critical approach to Chinese rule of law analysis can be sloganized as
LESS PARTY MORE STATE:
What does this mean? The CCP would have to continue to separate itself from the state; become more like a mere political party and ultimately one party among many (the Eastern European model); eventually the special place of the CCP and maybe the CCP itself will disappear within a much deeper kaleidoscope of political dialogue in a post CCP China. This choice reflects Western views. It is the easiest to apply. This choice represents a conscious willingness to conform with, and ultimately embrace, Western values and perspectives with respect to the appropriate basis for political and social organization. Some elements of Chinese institutional movement appear to be heading in this direction. The focus on the state apparatus and its constitution is a sign of the push in this direction.
When the CCP separates itself from the state, when it furthers projects designed to treat it like a mere political party, then it deviates significantly from its earlier stance as a fundamental institutional participant in the construction of government. So reconstituted, it preserves the CCP’s independence from the state but ultimately must accept a role subordinate to state institutions. That has been the pattern in the West, and the construction of Western style governance mechanisms will inevitably create significant institutional forces pushing both state and party into adopting Western roles—state institutions excluding the party, and the party competing with other manifestations of the public will (and other sources of institutional ideology) for control of the institutions of state power. Moreover, adoption of a Western pattern will produce strong expectations among foreigners that the Western pattern will be followed. This works very well for the West. It provides a basis for strengthening the Western internationalist movement in which the CCP will play a reduced role, one among many non-institutional non-governmental voices.
The other choice, much more in accord with the reality of China today, can be sloganized as
MORE PARTY LESS STATE
From the perspective of the historical development of the Chinese state, and the path it has chosen for the development of rule of law institutions, this approach deepens the commitment to an institutional structure of the state in which the CCP serves not as a mere Western style political party but as an integral organ of state power. The focus is on the reality of the CCP within the state. It suggests that the best way of deepening rule of law in China is to cultivate a strong rule of law ethic WITHIN the CCP, before it is extended outside the CCP to the state apparatus itself. This choice incorporates the parallelism already in evidence in the constitutionalization of the CCP. But this choice carries heavy responsibilities, responsibilities and obligations highlighted by the Three Represents Thought itself.
There is no reason that the Four Cardinal Principles (the leading role of the CCP; adherence to socialism; dictatorship of the proletariat; and adherence to Marxist/Leninist/Mao/Deng Xiaping/3 Represents Thought), the Two Musts Campaign (the CCP must keep a humble attitude and must keep a hardworking spirit), and the Fish-Water connection between CCP cadres and the masses should not apply within the CCP as well as between the other institutions of the state and the people.
There is no reason for the separation between the constitution of the state and of the CCP. Why two constitutions for a single enterprise? State and Party must act as one. If the CCP means what it says, if the Party occupies the pivotal institutional space within the state apparatus, if the CCP is instrumental in the construction and implementation of the “deep constitutionalism” described as essential for rule of law governance by both Western and Chinese scholars, if the Three Represents and Two Musts are to be given their full meaning, then the CCP should strive to embrace its principles completely. That embrace involves not only the construction of the state but also the continued development of the CCP and the CCP within the state itself. The CCP must live the Three Represents and the Two Musts. The CCP must implement and enforce those norms within its own organization before that organization can fully serve as the institutional model for the rest of the state and rule of law.
If the first focus of a rule of law project in China is on the CCP, then what should be its objects and the methods of realization? The Three Represents provides a useful ideological basis for this project—in its own way as useful as the Western ideological foundations of “democracy” and “rule of law.” From a formal perspective, this requires an acknowledgement of the central role of the CCP in the operation of the state—not as party, but as institution. This institution must serve as the vanguard of rule of law if the rest of the state apparatus is to successfully follow suit.
Such a formal acknowledgment can be achieved within the constitutional framework of the PRC. There are already important references to the relationship between state and Party in the Preamble of the Constitution. Perhaps, following the French constitutional model, the primacy and constitutional value of the Preamble must be better stressed and applied by those whose task it is to implement the objectives and rules of the Constitution. There is little impediment to investing the Preamble with constitutional value equal to that of the other parts of the constitution. A more radical approach would include the absorption of the institutional framework of the CCP itself within the Constitution of the PRC itself. In this way, the rule of law in China might have as its foundation the unbreakable fusion between state and Party within the institutional document understood by foreigners as the supreme authoritative instrument of legitimating state power.
“Jiang Zemin raised to prominence the idea of “governing the country through law” and discussed the need for greater institutionalization if the CCP is to act more as a ruling party and less as a revolutionary party in his July 1, 2001, speech. Similarly, it was Jiang who raised the issue of “inner-party democracy”—the notion that political participation can be expanded modestly and that, accordingly, cadre selection and decision making can be improved and greater supervision can be exercised over leading cadres, all by expanding the rights of party members and avoiding real democracy. Hu may have different notions about how to implement these ideas, but there is no apparent conflict over these policy goals.” (Fewsmith 2003, 3). But a ruling party is not a political faction. If the CCP represents the people of the nation, then its institutions must reflect its status as government rather than as mere faction. This is understood within China, and is communicated less successfully to outsiders.
The insertion of the CCP into the formal state apparatus, and the insertion of state power rule of law elements into the CCP itself can be furthered in a variety of ways. Other scholars have mentioned some of these methods. One involves an increased focus must be placed upon legitimizing the sincerity of the Party’s alignment with a rule of law; the movement toward inner-party democracy provides an interesting approach in that direction (Fewsmith 2003, 5, citing Zhen Xiaoying and Li Qinghua, “Yi dangnei minzhu tuijin renmin minzhu” (Using inner-party democracy to promote people’s democracy), Qiushi, June 15, 2003).
This raises an interesting question: can the CCP be bound by a document or a set of rules (from the state Constitution on down to the lowest levels of governance) the contents of which it controls? A YES answer would further the rule of law by separating the obligation to comply with the will of the Party, expressed as a series of discrete rules produced by the Party as an institution, from the will of any individual in deciding whether or not to comply with such rules (Chen -----). It is in this context that the current “anti-corruption campaigns have their greatest challenges. As long as individuals pervert Party policies and rules for their own ends, the will of the individual prevails over the will of the Party (and the state), and the substantive goals of the Three Represents and the Two Musts are perverted.
But separating individual from Party may require the formalization of enforcement mechanisms that themselves will be free from the influence of the individual—mechanisms run by people whose loyalty to Party and State over the individual will be both protected and rewarded. This has been difficult (Chen 2006); but the task is not impossible. It can be made easier not by the separation of the Party from the state, but by the separation of the individual element from the institution of the Party. For this purpose, it may be necessary to find a means of removing and formalizing the administration of Party discipline so that it loses its individual character and becomes more oriented to institutional objectives. The first task of the State ought to be to discipline the individualistic elements in the Party so that the Party can effectively lead the State.
This institutionalization is not limited to the mechanics of enforcement of rules over individual desires. It is also important to deepen the institutionalization of targeted ideological programs and campaigns for the purpose of constructing a normative basis for public action. For this purpose it is important to tie state action to CCP ideology—for example to the principles of democratic centralism. The development of an administrative law structure in China might serve that purpose well. But that task is only in its infancy and needs protection from abuse by individuals (Peerenboom 2001; Ohnesorge 2003a). Until the CCP is able to police or administer itself internally and develop a rule of law culture in its own internal affairs, it will be unable to implement a real rule of law system through the state. It is in this context that some of Professor Peerenboom’s criticisms provide a basis for self-analysis and further development of an inward looking administrative mechanism: “The biggest obstacles to a law-based administrative system in China are institutional and systemic in nature: a legislative system in disarray; a weak judiciary; poorly trained judges and lawyers; the absence of a robust civil society populated by interests groups; a low level of legal consciousness; the persistent influence of paternalistic traditions and a culture of deference to government authority; rampant corruption; 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 fragmentation of authority” (Peerenboom 2001, 168-169).
Lastly, much more might be made of the opening of membership in the CCP. More Party Less State contains, as a corollary, the proposition that the CCP must grow to fulfill its role as the institutional leader of Chinese governance. To some extent, the Three Represents suggests a continued broadening of the base of the CCP as it becomes institutionalized within China. “This may indicate a shift in the concept of the 'masters of the nation', which used to be defined as an alliance of workers-peasants-soldiers (gongnongbing). In the early 1980s, intellectuals were added to this triumvirate, after their status had been redefined as that of 'mental workers'” (Landsberger). Yet, as the First Represent makes all too clear—broadening does not mean abandoning the initial and critical first elements of CCP membership. Still, if the CCP is to attain its institutional role within the state, then it will have to embrace all elements in society that in turn embrace its ideology, rules, purposes, and commitment to Chinese style rule of law.
Adherence to Party (and now state) norms, rather than status, ought to serve as a more important touchstone for Party membership. The opening of CCP membership to emerging private sector elements recently suggested by leaders in the CCP provides a useful opening. Advancement in alls sectors of society should be made on the basis of an adherence to at least the basic rules of state organization. Thus, bringing market elements into the CCP in return for a commitment to the institutional role and ideology of the CCP within the state apparatus serves well the construction of a rule of law society in which the CCP remains the faithful representative of the broadest masses of the people of China. Membership ought to be open to all elements in China, as long as they commit to the institutional role and ideology of the CCP as an institutional force in China. More Party can then be translated into more rule of law as the rule of law values of the Party become part of the working culture of its members—including all of the critical elements of Chinese society. From this position, expanding rule of law culture to the other institutions of the state apparatus may be easier.
There is much work to be done, but a basic choice must be made as well—with respect to the relationship between the State and the Party. The West expects the CCP to be eased into a role as a Western style political party. Still, there is another path that China might, but has not yet taken. Perhaps Dr. Zhenmin Wang’s understanding of the rule of law as it might be naturalized within Chinese political culture captures the importance of the Three Represents in developing a Chinese constitutional thought that joins State and Party (Wang). Dr. Wang suggests that the “general understanding of the rule of law is multi-faceted. First, the rule of law is the means by which human activities can be regulated and is essential to a modern industrial society. Such a society cannot prosper under the rule of man (i.e. a society governed solely by the decisions of those in power)” (Wang). This understanding corresponds nicely with the understanding implicit in the first of the Three Represents—the CCP as the faithful representative of the requirements in the development of advanced productive forces in China. “Second, under the rule of law, the primary purpose of the legal system is to regulate and restrain the behavior of government officials. There must be laws regulating the authority of the government and its officials-political behavior must comply with legal rules” (Wang). This is the idea underlying the second of the Three Represents—the connection between the CCP and its faithful representation of the orientation of the advanced culture in China. That advanced culture carries within it the connection between rule of law and the institution of the CCP above any single individual. “Third, the rule of law necessarily assumes the existence of rights. The law should uphold the various rights that modern conceptions of citizenship entail. When the government abuses its power, citizens should have the right to seek legal remedies against the government.” (Wang). The CCP remains the faithful representative of the fundamental interests of the broadest masses of the people in China by embracing this third aspect of the rule of law.
The Three Represents, like the elaboration of the rule of law for the assertion of state power, is in either sense concerned with the manifestation of collective action or will. If the state is the entire manifestation of the collective action or will of the people, as it is in the West, then the rule of law must apply single-mindedly to the institutions of that collective expression. It means that all subordinate expressions of collective will, including political parties, must remain subordinate to the rule of law derived from the supreme institutions of the collective will. In this context, the Three Represents, like the rule of law, must apply from and through the institutions of state power and from that source of power discipline all other expressions of authority, including the CCP. There are elements in the Chinese constitution that suggest the possibility of this track of political development in China. And standing alone, it is possible to read the Chinese constitution as embarking on this path to development. If that is the case, then the Western rule of law commentators’ criticisms acquire greater legitimacy and the place of the CCP as mere political party becomes more certain.
If the state is merely the partial manifestation of the collective action of the people, a face to the outside world, there must be a parallel development of the rule of law within the public face as well as within the institutions of the internal face of state power, the CCP. This will require the elimination of the personal elements from the institutional activities first from the CCP and then from the state apparatus. The Three Represents and the Two Musts provides the CCP with the opportunity to make substantial progress in this regard in a way that advances constitutionalism as theory and practice.
But China must be sure of the conceptual framework it wishes to embrace within which this is teased out: Is the state to be a manifestation of the Party? Is the Party to be merely a servant of the state? Is the whole of state power to be exercised only by the collective action of the institutions of the government and of the CCP acting together within the ambit of their authority? The answers to these questions hold the key to the rule of law issues in China.
So what does the current basis of criticism of Chinese constitutionalism teach us? They teach us that ideological campaigns may be as important a source of constitutionalism in the West as it has become in China. There is a similarity in the current ideological campaigns being waged in the United States, in particular, and in the West, in general, about the need to reform government, and to curb the bad habits of public officials, and that represented by the “Three Represents” Campaign in China. But, in the United States those campaigns center on the ideas of “rule of law,” “free markets” and “democracy.” In China, they necessarily focus on the core source of institutional power—the Chinese Communist Party. As such, criticisms grounded in American ideological campaigns tend to be less useful as a means of understanding both the challenges and the possibilities of progress within China today.
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The focus on rule of law analysis is usually limited to the formal state apparatus (Blanchard 2005). The institutions of the state apparatus, its government, are usually synonymous with those political institutions through which the legislative, executive and judicial authority of the people are exercised. It is almost always fixated on the governance norms contained in the state’s constitution—the document understood as the highest expression of the political will of the people in their role as the ultimate sovereigns, that is, as the supreme holders of state power. All other entities or expressions of power within the state are viewed as subordinate to the formal system of state power.
Political parties are viewed as “factions” in the sense understood by James Madison in Federalist Paper No. 10: “By a faction, I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse or passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community” Madison, The Federalist #10). Such factions do not represent the people as a sovereign body. Rather, they are the expression of individual will, even in collective form. Thus, Madison also refers to: “Complaints are everywhere heard…that the public good is disregarded in the conflicts of rival parties” (Madison, The Federalist #10). Thus, from the earliest period of the American Republic, there was a strongly guarded separation between a state and its instrumentalities (as representative of the entire people), on the one hand, and factions or political parties (as representative of the will of individuals), on the other hand.
There can be no formal governance power that exists outside of the state and the institutions identified in its formal governance documents. Thus, the West traditionally separates the ideology of political power, which is thought to represent the personal views of individuals rather than the people as a whole, from the institutions of the state, which is thought to be bereft of political ideology other than to the extent inherent in its very structure through which the will of the people as a whole may be expressed.
On this basis, there has been a sort of standardization of the analysis of ‘rule of law’ issues in the People’s Republic of China. It goes something like this:
China has sought to conform its institutions to the norms developed in the West. China has created state institutions as those organs of government where the will of the people as a whole can be represented. China has separated from these representative organs of state power the institutions of the Chinese Communist Party (CCP). That separation confirms the Western intuition that the CCP is no more than a faction; the CCP can represent (at best) the will (however powerful) of a mere political party (albeit one with current constitutional status).
Having separated politics from institution, the constitution necessarily focused almost exclusively on the institutions. The Chinese Constitution of 1982 has, as a formal matter, embraced the idea of the rule of law in its process aspect. The Preamble declares that the Constitution “is the fundamental law of the state and has supreme legal authority.” Article 5, as amended in 1999, emphasizes that “the People's Republic of China practices ruling the country in accordance with the law and building a socialist country of law." However, the Chinese Constitution has avoided any attempt to embrace rule of law in its substantive aspect, even as a formal matter within the black letter of the Constitution itself. To the extent that reference is made to ideology--Marxist/Leninist, Mao Zedong, Deng Xiao Ping Thought, and Three Represents Thought, those references are to mere ideology and do not implicate rule of law issues.Moreover, even formal compliance with process rule of law aspects hides the reality of deficiencies in the implementation of these safeguards.
As a consequence, outsiders have questioned the fidelity of the Chinese state to the rule of law because of the control by a single party, the CCP, of the apparatus of state power in China, including all law making power. In one sense these arguments can be reduced to a criticism of Chinese constitutionalism as illegitimate because it lacks a basis in institutionalized moral and ethical norms. For the rule of law, these commentators suggest, China, through the CCP, has substituted, the personal desires of the leaders of the CCP. In the absence of these fundamental institutional norms, the behavior of China's leaders are essentially unconstrained--the essence of arbitrary governance in Western thought. The greatest effect is on the willingness of the political culture to tolerate a tremendous amount of personal discretion in the application of rules, and the use of personal power for personal ends (career advancement, and the like). Rule of law systems cannot be legitimate or authentic in the face of party control of the apparatus of state government because no party can represent all the people—only the institutions of the state can serve that function.
While grounded in neutral language, these arguments are, in reality, applied expressions of a particular ideology that has assumed aspirations to universalism in the period after the end of the Second World War outside of China. Specifically, this popular strain of rule of law analysis is grounded in a very specific ideal of constitutionalism that has become well developed and accepted outside of China, but which peculiar ideal is somewhat removed from governance ideals developed within the People’s Republic. The international norm system of deep constitutionalism developed since 1945 serves as the ideal against which the Chinese system is evaluated (Backer 2006). That system is “based on the idea that a universally shared system of values exists that serves to limit the extent to which any political community can express the popular (sovereign) will in their constitutions. These universally shared (and imposed) norms are developed and policed from out of an on-going discussion among the community of nations, from out of which norms are developed through consensus. These norms focus on the limits of state power, especially as expressed against individuals, represent the highest expression of universal political will, and are meant to provide the foundation for the rule of law as expressed within the constitutional traditions of a state” (Backer 2006). Most prominent among these norms are “democracy,” and “human dignity,” from which globalized constitutional norm making is grounded within a complex of social, political and economic rights articulated in an increasing number of pronouncements from international organizations.
These approaches to an analysis of China and of Chinese constitutional developments tend to tell us more about the cultural perspectives of the critics of Chinese developments than about China itself, the ostensible object of that analysis. In this respect my analysis shows some sympathy for Donald Clarke’s position that the standard critiques are based on an “imperfect realization of an ideal” or IRI approach to comparative law. Clarke argues that systems are measured and analyzed in terms of an ideal state chosen by the analyst. The system chosen is usually a western political system—the United States or a European state. As a consequence, any sort of western-based rule of law paradigm contributes little to an understanding of the evolution of Chinese governmental institutionalism. (Clarke 1999). This view, in one form or another, has served both to problematize rule of law analysis especially as applied to East Asian states (Peerenboom, 2004; Clark 1999), or its application to China (Peerenboom 2002b).
As applied by commentators to Chinese constitutionalism, these ideals usually translate into a criticism of the Chinese Communist Party as an impediment to the evolution of the instrumentalities of the Chinese state to a “rule of law” government. Alternatively, these commentators seek to solve the “problem” of Chinese rule of law transition by concentrating on the formal institutions of government and marginalizing the CCP. These generalized criticisms or marginalization of the CCP takes a number of forms, even among those sensitive to the realities of Chinese governance. Eric Orts, for example, is one of a number of scholars who seek to unbundle democratic theory from rule of law analysis. But the focus there is on the institution of rule of law within the institutions of government with the CCP playing, at best, the role of an outsider/spoiler in this institutional context (Orts). Pat Chew also suggests the possibility of an institutionalized rule of law regime within the Chinese state that is not necessarily tied to Western notions of democracy (Chew 2005). Others have also suggested the difficulties of squaring the notions of rule of law with development in East Asia (Ohnesorge 2003b).
Randy Peerenboom shares some sympathy for Clarke’s position but also focuses on the institutions of the Chinese state rather than on those of the Chinese Communist Party. He focuses on distinctions between “thick” and “thin” notions of rule of law. Focusing on attainment of thin rule of law governance in China, Peerenboom suggests that the rule of law in China is in a very youthful stage. He explains that China must focus on the process aspects of the rule of law and that a complete transformation awaits the folding of the Chinese Communist Party into a traditional state system in which it will serve its purpose as one of many political parties (Peerenboom 2002a).
I want to suggest that this approach is unsatisfactory for three reasons:
First, it misses an important recent development in the specific context of Chinese constitutionalism—the growing importance of writing specific ideological frameworks into the constitution. This may suggest a greater willingness to advance the implementation of ideology, and the substantive structure it represents, through state power grounded in law. “Ideology has become again an important vehicle for communicating regime values to Party cadres and the masses” (Hepeng 2004, 262). Ideology serves to supply the normative bases of appropriate institutional action that serves to define the relationship between state/supreme political entity and the individual. However, because the norm structures of Chinese ideology articulated through the CCP remain either alien or antithetical to their usual Western counterparts, they remain opaque outside of China.
More importantly, it dismisses as ideology developments in Chinese constitutionalism that in Western States might be characterized as the development of substantive or deep constitutionalism. It has struck me as ironic that the American President’s ideological campaign for democracy, accountability and social responsibility should be treated as part of the important discourse of values constitutionalism in the United States, and yet the important conversations within China about the role of citizen, state and party be marginalized as “mere” ideology. But it is also important to accept that Chinese constitutional conversations will occur in a manner distinct from, and using forms that are not familiar to, to Western approaches to constitutionalism. While it is important to judge these efforts, both within and outside of China, it is also important to base those judgments within the framework that China has chosen for itself.
Second, it misjudges the theorizing of the CCP. On the one hand, it takes the ideological campaigns of the CCP too literally. As a consequence it tends to minimize the importance of this theorizing. Characterized as mere CCP sloganeering, ideological campaigns, it is suggested, are little more than cynical attempts to manipulate Chinese public opinion with no intended substantive effect. On the other hand, Western analysts do not take CCP ideology literally enough as little more than the politics of individual power by other means. Ideology serves merely to mask the arbitrariness of the CCP’s culture of the exercise of personal power with no limits.
Third, it misses the important institutional place of the Chinese Communist Party in the analysis of rule of law in China (Backer 2004).
Let us focus on this third, and most important element of Chinese constitutionalism. In Western analysis, the CCP is the elephant in the room that no one wants to acknowledge. It is either viewed as an impediment to attainment of the rule of law or as a vast and unruly faction that stands between the people and the state apparatus, essentially the group that prevents the development of democracy and independent state institutions capable of supporting a strong rule of law (in process aspects) state.
I suggest that no analysis of the rule of law in China is possible without taking into account the institutional role of the Chinese Communist Party both within and outside the apparatus of the state. This requires taking seriously the expression of the place of the CCP as the “party in power” for constitutional purpose. It also requires looking at the CCP not as a western style party—like the faction of Madison’s theorizing—but as an essential element of the construction of state power.
To a large extent, then, the state apparatus is split into two parts—one largely following the pattern of institutionalized governance in the West, and the other following the understanding of the fusion of government and politics inherent in the construction of state socialism in China since 1949. This split is very important. In a larger sense, it shows the difficulties of constructing institutions that can at the same time serve to communicate with other states, and remain true to the substantive basis of the social and political order of the state. The outward manifestation of the state apparatus, its formal organization of the institutions of state power, is the western style manifestation of the government of a proper political entity sporting the indicia of state institutions in a form understood by the community of nations. This is the face of public organization—what the rest of the world expects to see, and the place from which they apply the standards of appropriate conduct.
The inward manifestation of the state apparatus, its substantive values, is represented through the formal institution of the CCP. In the context of China, the apparatus of the CCP as a manifestation of the ideological or substantive aspects of rule of law, serving as the representative of the genius of the people as a whole in upholding the foundational normative structure of the state—Marxist/Leninist, Mao Zedong, Deng Xiao Ping Thought, and Three Represents Thought. The CCP serves as the institutional representative of the people and thus serves the important state purpose of infusing the formal institutions of state power with a normative basis for the exercise of political power. That normative basis has found expression in a number of important pronouncements touching on the separation of individual from communal power and each worthy of implementation. They include the Four Cardinal Principles (the leading role of the CCP; adherence to socialism; dictatorship of the proletariat; and adherence to Marxist/Leninist/Mao/Deng Xiaping/3 Represents Thought), Hu Jinato’s recent Two Musts Campaign (the CCP must keep a humble attitude and must keep a hardworking spirit), and the Fish-Water connection between CCP cadres and the masses.
The Chinese constitution attempts to establish the context on which these two aspects of government can come together—the formal institutions of the state and the oversight of values/governance role of the CCP. The Constitution carefully develops the overlap between State and Party. Yet, Western commentators tend to focus more on those parts of the constitution most like their own—the sections dealing with the formal organization of the state. They tend to be blind to those portions of the constitution that open a window on that other important aspect of government—the relation of government and CCP—that is, on the relationship between institution and ideology.
The state itself can be considered complete only when the formal state apparatus is joined with the apparatus of the CCP. For the West, this is difficult to grasp—impeded by the Western limitations of considering parties as something unconnected with the state institution building. On this basis it is easier to understand the CCP’s own understanding of ‘rule of law’ as a hybrid concept:
Ruling the country by law means that the broad masses of the people, under the leadership of the Party and in accordance with the Constitution and other laws, participate in one way or another and through all possible channels in managing state affairs, economic and cultural undertakings and social affairs, and see to it that all work by the state proceeds in keeping with law, and that socialist democracy is gradually institutionalized and codified so that such institutions and laws will not change with changes in the leadership or changes in the views or focus of attention of any leader (Zemin 1997).
This requires a fusion of the outward and inward institutional manifestations of power within China:
The Party has led the people in drawing up the Constitution and other laws, to which it confines its activities. In ruling the country by law, we can unify the adherence to Party leadership, the development of people's democracy and do things in strict accordance with the law, thus ensuring, institutionally and legally, that the Party's basic line and basic policies are carried out without fail, and that the Party plays the role of the core of leadership at all times, commanding the whole situation and coordinating the efforts of all quarters (Zemin 1997).
It is only within this context that the current ideological campaign—sange daibiao (or the “Three Represents”)—assumes its importance for Chinese constitutionalism and the advancement of the rule of law culture in China.
“In 2000, his theory of the "three represents" (Sange daibiao) was first presented as the nucleus of Jiang Zemin Theory. The theory focuses on the future role of the CCP as "a faithful representative of the requirements in the development of advanced productive forces in China, the orientation of the advanced culture in China, and the fundamental interests of the broadest masses of the people in China” (Landsberger).
Sange daibiao provides an ideological basis, a deep constitutional foundation, for the position of the CCP at the center of the institutional apparatus of the Chinese state. But it does more than that—it also provides the basis through which the rule of law, as a framework for the proper relationship between state institutions (representing the collective) and the individual (as an instrument of that collective). As developed by the organs of the CCP, it is clear that sangue daibiao can provide the principles through which the framework of commonly understood rule of law constitutionalism can be adopted with Chinese characteristics.
For purposes of this essay, I will speak briefly to the parameters of this possible construction of Chinese constitutionalism, focusing on the inclusion of sange daibiao into the governance structures of the CCP after 2000 and the Chinese Constitution after 2004. Like the earlier constitutional assimilation of Deng Xiaping Theory, the adoption of sange daibiao may serve, at least as a formal matter, to further incorporate substantive rule of law elements into Chinese constitutionalism.
There has been much commentary about the Three Represents as well as about the ideological campaign conducted in connection with its promulgation.
The Three Represents can’t be viewed in isolation; its establishment occurred in the context of a campaign to open membership in the CCP to the emerging capitalist class in China (Hepeng 2004, 262), as well as the extension of the protection of property rights to individuals. An important goal is at co-opting the capitalist or market elements of Chinese society by offering them a place in the CCP in return for adherence to CCP norms, including the basic socialist foundation of state organization (Hepeng 2004, 267-269). This is an important point—it suggests the very real ways in which membership in political society in China is structured around the leadership of the CCP, and the nature of that leadership as normative rather than merely political. Given this important relationship between state and Party, the Three Represents campaign is also aimed at emphasizing the socialist character of the post 1978 reforms. “The nominal limitation to the state an Party revealed in the Three Represents is aimed at limiting abuses of power by individuals rather than at restricting the CCP’s dominance or power within the state” (Hepeng 2004, 263).
Among those who see the CCP as increasingly taking the position of a mere political party (in the Western sense) rather than as an important institution of government, it has also been criticized as a rather cynical expedient by a dictatorial faction (to which the CCP now finds itself increasing reduced) seeking to preserve its legitimacy and thus its power. And this is an important point as well—to the extent that the CCP chooses to treat itself more as a political party than as in integral part of the institutional structure of the state, then the limitations of political parties, especially as those limitations are understood in the West, will increasingly weaken the legitimacy and authority of the CCP in China, in fact, irrespective of pronouncements in official documents. That is the great trap that the Three Represents campaign clearly unveils.
Within the context of the two faces of state power in China, the Three Represents are important for a number of reasons. First, it is important because of the deepening of a new (post 1978) pattern of parallelism—incorporating changes in both the CCP constitution and the Chinese Constitution. This suggests a parallelism in institutionalization of rule of law—the CCP and its expression as state apparatus moving in lock step on rule of law behavior. Second, it demonstrates a willingness, within the CCP itself, to embrace transparency in governance. As the faithful representative of fundamental interests of the broadest masses of the people in China, the Three Represents declares a commitment to legitimacy based on its representation of the people. That faithfulness requires the retention of the confidence of the people. Third, the Three Represents can serve to limit the discretion of both Party and State officials—at least in theory. In each of its expressions of representativeness, the Three Represents emphasizes the people as a whole over the interests of any individual, faction, or interest group. It is clear that the Three Represents is meant to create and impose a great principal of fiduciary duty on Party and State officials, an obligation of acting solely in the best interests of the people that may be possible to enforce against any person exercising power in the State or the Party. The implementation is critical, but is also a harder question and treated a little in the last part of this essay. Fourth, while the Three Represents limits discretion, it does so within a system of flexible application within the particular realities of China’s position in the world. It cross-sects with the Party’s involvement as a leader of the people, the historical lessons the Party has learned from its recent past, signaling that “the practical problems of the Chinese revolution” must be solved, i.e. NOT “studying Marxism-Leninism statically and in isolation” but following Deng Xiaoping Theory; and very importantly, the understanding that “ruling the country by law…is also the objective demand of a socialist market economy,” which in turn clearly parallels Jiang’s belief that “We must never discard Marxism-Leninism and Mao Zedong Thought,” but at the same time, these latter thinkers should not be followed categorically.
The opportunities for elaboration of rule of law theory with Chinese characteristics through the Three Represents Theory were hinted at in Hu Jintao’s Party Day Speech on the 82nd anniversary of the founding of the CCP. In closing a long speech on the value of the Three Represents principles, he “listed some 14 questions, including how to improve the economy, how to expand employment, how to foster China’s “national spirit” (minzu jingshen), and how to build the CCP’s “ruling capacity” (zhizheng nengli). These questions will give party theorists plenty of scope to develop the three represents in the future” (Fewsmith 2003, 6).
The Three Represents thus highlights the basic problem of the Rule of Law in China and points to its solution. The problem of the rule of law in China, therefore, can be understood as concentrating on the resolution of the questions of the long-term fundamental role of the CCP in China, and of the relationship between the CCP and the state apparatus it has created and now dominates in the service of the masses.
Applied appropriately to the central institution of authoritative and legitimate state power in China, that is, to the institutions of the Communist Party, the Three Represents can serve as the ideological basis for solidifying the autonomy of the CCP as the legitimate source of political and ideological power within the state. Indeed, the 125-page Study Guide to the Important Thinking of the ‘Three Represents’ appears to point in that direction. “Sections 8, 11, and 12 . . . discuss political construction, affirming the importance of “political civilization”—a term officially endorsed at the 16th Party Congress and given equal status with “material” and “spiritual” civilization. These sections elaborated on the need for institution-building as well as the need for “checks and balances” and “supervision” over those exercising political power” (Fewsmith 2003, 4).
If the fundamental question of the Rule of Law in China should center on the CCP, then resolution depends on a choice of focus with significant effect on the role of the CCP in China. This is a choice that must be made by the political leaders of China. The choice will significantly affect the future institutional course of the development of China and the ultimate place of the Communist Party within Chinese systems of governance.
One choice that would be made under the traditional critical approach to Chinese rule of law analysis can be sloganized as
LESS PARTY MORE STATE:
What does this mean? The CCP would have to continue to separate itself from the state; become more like a mere political party and ultimately one party among many (the Eastern European model); eventually the special place of the CCP and maybe the CCP itself will disappear within a much deeper kaleidoscope of political dialogue in a post CCP China. This choice reflects Western views. It is the easiest to apply. This choice represents a conscious willingness to conform with, and ultimately embrace, Western values and perspectives with respect to the appropriate basis for political and social organization. Some elements of Chinese institutional movement appear to be heading in this direction. The focus on the state apparatus and its constitution is a sign of the push in this direction.
When the CCP separates itself from the state, when it furthers projects designed to treat it like a mere political party, then it deviates significantly from its earlier stance as a fundamental institutional participant in the construction of government. So reconstituted, it preserves the CCP’s independence from the state but ultimately must accept a role subordinate to state institutions. That has been the pattern in the West, and the construction of Western style governance mechanisms will inevitably create significant institutional forces pushing both state and party into adopting Western roles—state institutions excluding the party, and the party competing with other manifestations of the public will (and other sources of institutional ideology) for control of the institutions of state power. Moreover, adoption of a Western pattern will produce strong expectations among foreigners that the Western pattern will be followed. This works very well for the West. It provides a basis for strengthening the Western internationalist movement in which the CCP will play a reduced role, one among many non-institutional non-governmental voices.
The other choice, much more in accord with the reality of China today, can be sloganized as
MORE PARTY LESS STATE
From the perspective of the historical development of the Chinese state, and the path it has chosen for the development of rule of law institutions, this approach deepens the commitment to an institutional structure of the state in which the CCP serves not as a mere Western style political party but as an integral organ of state power. The focus is on the reality of the CCP within the state. It suggests that the best way of deepening rule of law in China is to cultivate a strong rule of law ethic WITHIN the CCP, before it is extended outside the CCP to the state apparatus itself. This choice incorporates the parallelism already in evidence in the constitutionalization of the CCP. But this choice carries heavy responsibilities, responsibilities and obligations highlighted by the Three Represents Thought itself.
There is no reason that the Four Cardinal Principles (the leading role of the CCP; adherence to socialism; dictatorship of the proletariat; and adherence to Marxist/Leninist/Mao/Deng Xiaping/3 Represents Thought), the Two Musts Campaign (the CCP must keep a humble attitude and must keep a hardworking spirit), and the Fish-Water connection between CCP cadres and the masses should not apply within the CCP as well as between the other institutions of the state and the people.
There is no reason for the separation between the constitution of the state and of the CCP. Why two constitutions for a single enterprise? State and Party must act as one. If the CCP means what it says, if the Party occupies the pivotal institutional space within the state apparatus, if the CCP is instrumental in the construction and implementation of the “deep constitutionalism” described as essential for rule of law governance by both Western and Chinese scholars, if the Three Represents and Two Musts are to be given their full meaning, then the CCP should strive to embrace its principles completely. That embrace involves not only the construction of the state but also the continued development of the CCP and the CCP within the state itself. The CCP must live the Three Represents and the Two Musts. The CCP must implement and enforce those norms within its own organization before that organization can fully serve as the institutional model for the rest of the state and rule of law.
If the first focus of a rule of law project in China is on the CCP, then what should be its objects and the methods of realization? The Three Represents provides a useful ideological basis for this project—in its own way as useful as the Western ideological foundations of “democracy” and “rule of law.” From a formal perspective, this requires an acknowledgement of the central role of the CCP in the operation of the state—not as party, but as institution. This institution must serve as the vanguard of rule of law if the rest of the state apparatus is to successfully follow suit.
Such a formal acknowledgment can be achieved within the constitutional framework of the PRC. There are already important references to the relationship between state and Party in the Preamble of the Constitution. Perhaps, following the French constitutional model, the primacy and constitutional value of the Preamble must be better stressed and applied by those whose task it is to implement the objectives and rules of the Constitution. There is little impediment to investing the Preamble with constitutional value equal to that of the other parts of the constitution. A more radical approach would include the absorption of the institutional framework of the CCP itself within the Constitution of the PRC itself. In this way, the rule of law in China might have as its foundation the unbreakable fusion between state and Party within the institutional document understood by foreigners as the supreme authoritative instrument of legitimating state power.
“Jiang Zemin raised to prominence the idea of “governing the country through law” and discussed the need for greater institutionalization if the CCP is to act more as a ruling party and less as a revolutionary party in his July 1, 2001, speech. Similarly, it was Jiang who raised the issue of “inner-party democracy”—the notion that political participation can be expanded modestly and that, accordingly, cadre selection and decision making can be improved and greater supervision can be exercised over leading cadres, all by expanding the rights of party members and avoiding real democracy. Hu may have different notions about how to implement these ideas, but there is no apparent conflict over these policy goals.” (Fewsmith 2003, 3). But a ruling party is not a political faction. If the CCP represents the people of the nation, then its institutions must reflect its status as government rather than as mere faction. This is understood within China, and is communicated less successfully to outsiders.
The insertion of the CCP into the formal state apparatus, and the insertion of state power rule of law elements into the CCP itself can be furthered in a variety of ways. Other scholars have mentioned some of these methods. One involves an increased focus must be placed upon legitimizing the sincerity of the Party’s alignment with a rule of law; the movement toward inner-party democracy provides an interesting approach in that direction (Fewsmith 2003, 5, citing Zhen Xiaoying and Li Qinghua, “Yi dangnei minzhu tuijin renmin minzhu” (Using inner-party democracy to promote people’s democracy), Qiushi, June 15, 2003).
This raises an interesting question: can the CCP be bound by a document or a set of rules (from the state Constitution on down to the lowest levels of governance) the contents of which it controls? A YES answer would further the rule of law by separating the obligation to comply with the will of the Party, expressed as a series of discrete rules produced by the Party as an institution, from the will of any individual in deciding whether or not to comply with such rules (Chen -----). It is in this context that the current “anti-corruption campaigns have their greatest challenges. As long as individuals pervert Party policies and rules for their own ends, the will of the individual prevails over the will of the Party (and the state), and the substantive goals of the Three Represents and the Two Musts are perverted.
But separating individual from Party may require the formalization of enforcement mechanisms that themselves will be free from the influence of the individual—mechanisms run by people whose loyalty to Party and State over the individual will be both protected and rewarded. This has been difficult (Chen 2006); but the task is not impossible. It can be made easier not by the separation of the Party from the state, but by the separation of the individual element from the institution of the Party. For this purpose, it may be necessary to find a means of removing and formalizing the administration of Party discipline so that it loses its individual character and becomes more oriented to institutional objectives. The first task of the State ought to be to discipline the individualistic elements in the Party so that the Party can effectively lead the State.
This institutionalization is not limited to the mechanics of enforcement of rules over individual desires. It is also important to deepen the institutionalization of targeted ideological programs and campaigns for the purpose of constructing a normative basis for public action. For this purpose it is important to tie state action to CCP ideology—for example to the principles of democratic centralism. The development of an administrative law structure in China might serve that purpose well. But that task is only in its infancy and needs protection from abuse by individuals (Peerenboom 2001; Ohnesorge 2003a). Until the CCP is able to police or administer itself internally and develop a rule of law culture in its own internal affairs, it will be unable to implement a real rule of law system through the state. It is in this context that some of Professor Peerenboom’s criticisms provide a basis for self-analysis and further development of an inward looking administrative mechanism: “The biggest obstacles to a law-based administrative system in China are institutional and systemic in nature: a legislative system in disarray; a weak judiciary; poorly trained judges and lawyers; the absence of a robust civil society populated by interests groups; a low level of legal consciousness; the persistent influence of paternalistic traditions and a culture of deference to government authority; rampant corruption; 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 fragmentation of authority” (Peerenboom 2001, 168-169).
Lastly, much more might be made of the opening of membership in the CCP. More Party Less State contains, as a corollary, the proposition that the CCP must grow to fulfill its role as the institutional leader of Chinese governance. To some extent, the Three Represents suggests a continued broadening of the base of the CCP as it becomes institutionalized within China. “This may indicate a shift in the concept of the 'masters of the nation', which used to be defined as an alliance of workers-peasants-soldiers (gongnongbing). In the early 1980s, intellectuals were added to this triumvirate, after their status had been redefined as that of 'mental workers'” (Landsberger). Yet, as the First Represent makes all too clear—broadening does not mean abandoning the initial and critical first elements of CCP membership. Still, if the CCP is to attain its institutional role within the state, then it will have to embrace all elements in society that in turn embrace its ideology, rules, purposes, and commitment to Chinese style rule of law.
Adherence to Party (and now state) norms, rather than status, ought to serve as a more important touchstone for Party membership. The opening of CCP membership to emerging private sector elements recently suggested by leaders in the CCP provides a useful opening. Advancement in alls sectors of society should be made on the basis of an adherence to at least the basic rules of state organization. Thus, bringing market elements into the CCP in return for a commitment to the institutional role and ideology of the CCP within the state apparatus serves well the construction of a rule of law society in which the CCP remains the faithful representative of the broadest masses of the people of China. Membership ought to be open to all elements in China, as long as they commit to the institutional role and ideology of the CCP as an institutional force in China. More Party can then be translated into more rule of law as the rule of law values of the Party become part of the working culture of its members—including all of the critical elements of Chinese society. From this position, expanding rule of law culture to the other institutions of the state apparatus may be easier.
There is much work to be done, but a basic choice must be made as well—with respect to the relationship between the State and the Party. The West expects the CCP to be eased into a role as a Western style political party. Still, there is another path that China might, but has not yet taken. Perhaps Dr. Zhenmin Wang’s understanding of the rule of law as it might be naturalized within Chinese political culture captures the importance of the Three Represents in developing a Chinese constitutional thought that joins State and Party (Wang). Dr. Wang suggests that the “general understanding of the rule of law is multi-faceted. First, the rule of law is the means by which human activities can be regulated and is essential to a modern industrial society. Such a society cannot prosper under the rule of man (i.e. a society governed solely by the decisions of those in power)” (Wang). This understanding corresponds nicely with the understanding implicit in the first of the Three Represents—the CCP as the faithful representative of the requirements in the development of advanced productive forces in China. “Second, under the rule of law, the primary purpose of the legal system is to regulate and restrain the behavior of government officials. There must be laws regulating the authority of the government and its officials-political behavior must comply with legal rules” (Wang). This is the idea underlying the second of the Three Represents—the connection between the CCP and its faithful representation of the orientation of the advanced culture in China. That advanced culture carries within it the connection between rule of law and the institution of the CCP above any single individual. “Third, the rule of law necessarily assumes the existence of rights. The law should uphold the various rights that modern conceptions of citizenship entail. When the government abuses its power, citizens should have the right to seek legal remedies against the government.” (Wang). The CCP remains the faithful representative of the fundamental interests of the broadest masses of the people in China by embracing this third aspect of the rule of law.
The Three Represents, like the elaboration of the rule of law for the assertion of state power, is in either sense concerned with the manifestation of collective action or will. If the state is the entire manifestation of the collective action or will of the people, as it is in the West, then the rule of law must apply single-mindedly to the institutions of that collective expression. It means that all subordinate expressions of collective will, including political parties, must remain subordinate to the rule of law derived from the supreme institutions of the collective will. In this context, the Three Represents, like the rule of law, must apply from and through the institutions of state power and from that source of power discipline all other expressions of authority, including the CCP. There are elements in the Chinese constitution that suggest the possibility of this track of political development in China. And standing alone, it is possible to read the Chinese constitution as embarking on this path to development. If that is the case, then the Western rule of law commentators’ criticisms acquire greater legitimacy and the place of the CCP as mere political party becomes more certain.
If the state is merely the partial manifestation of the collective action of the people, a face to the outside world, there must be a parallel development of the rule of law within the public face as well as within the institutions of the internal face of state power, the CCP. This will require the elimination of the personal elements from the institutional activities first from the CCP and then from the state apparatus. The Three Represents and the Two Musts provides the CCP with the opportunity to make substantial progress in this regard in a way that advances constitutionalism as theory and practice.
But China must be sure of the conceptual framework it wishes to embrace within which this is teased out: Is the state to be a manifestation of the Party? Is the Party to be merely a servant of the state? Is the whole of state power to be exercised only by the collective action of the institutions of the government and of the CCP acting together within the ambit of their authority? The answers to these questions hold the key to the rule of law issues in China.
So what does the current basis of criticism of Chinese constitutionalism teach us? They teach us that ideological campaigns may be as important a source of constitutionalism in the West as it has become in China. There is a similarity in the current ideological campaigns being waged in the United States, in particular, and in the West, in general, about the need to reform government, and to curb the bad habits of public officials, and that represented by the “Three Represents” Campaign in China. But, in the United States those campaigns center on the ideas of “rule of law,” “free markets” and “democracy.” In China, they necessarily focus on the core source of institutional power—the Chinese Communist Party. As such, criticisms grounded in American ideological campaigns tend to be less useful as a means of understanding both the challenges and the possibilities of progress within China today.
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