Westerners spend a lot of time thinking about "rule of law," not just within their own domestic legal orders, but as a generalized concept of national and international law. Rule of law and the principle of democratic organization of political power stand now as the foundation of the transnational constitutional order. (Backer, Larry Catá, "From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems," Penn
State Law Review 113(3) 2009).
(Pix (c) Larry Catá Backer 2013)
Chinese academics do as well. One of
the most interesting thing about rule of law in China is that, like its
counterparts in Western Europe and the United States, the term has
undergone some substantial changes over the course of the years. More
interesting still, and again in a way that mirrors difficulties with the
concept in the West, the term can have simultaneous multiple meanings.
(E.g., Deborah Cao, "Fazhi Versus/and/Or Rule of Law?: A Semiotic Venture into Chinese Law," International Journal for the Semiotics of Law 14:223-247 (2001); and generally Deborah Cao, Chinese Law: A Language Perspective (Aldershot, UK: Ashgate, 2004)).
The protean nature of rule of law has been explored in recent years for English language audiences. (See, e.g., Yuanyuan Shen, "Understanding the Complexity of Law Reform in China," in The limits of the rule of law in China 20-44 (Karen Turner-Gottschang, James Vincent Feinerman, R. Kent Guy, eds., University of Washington Press, 2000) ("Literally fazhi 法制 means 'laws and institutions' or the 'legal system.' But the same spelling in pinyin can refer to fazhi 法治, 'to use law to rule.' Ibid, 24). One of my students, Shan Gao, has produced a short essay on some of the more interesting aspects of the term and its use in China. What emerges from this brief reminder of the ambiguity of meaning and its political dimension, especially in the context of great ideological struggles among great powers, is both the importance of context and of history in the development of a concept that itself is a place holder for complex relationships between institutional power, political power and the individual.
“Fazhi”: “Rule by Law” or “Rule of Law”? A common but serious mistake among many writers.Shan Gao
Serious mistakes made by some prestigious U.S. academic institutions when they discussed about China’s legal world with the concept of “Fazhi.” Such as Carl F. Minzner told reader “Party adopted ‘Rule by Law’ in 1997” in his recent article about Chinese Legal Education.1 According to Chinese source, Party in fact adopted “Rule of Law” instead of “Rule by Law”. Also, Bluebook 19th edition mistranslated one writer’s work with similar mistake. It is time to correct such mistake with a brief explanation about why this is a serious mistake.
Two factors contributed to such mistakes for China’s observer. The first one is Chinese language sometimes have same pronunciation for two different words or terms. The second one is people lack understanding of China’s academics theories about the two concepts under “Fazhi.” For Chinese academics, the term “Fazhi” actually refers two legal concepts that carry completely different meanings and ideals. The concept of “法制” (Rule by Law） and “法治”（Rule of Law）are two different concepts but both share same pronunciation. Because the Romanization Pinyin system that western academics applied for Chinese materials is based on pronunciation, many China observers have confused “法制” (Rule by Law) and “法治” (Rule of Law) under Romanize Pinyin term “Fazhi.” However, due to historical reason, not only western China observers confused this two concepts, many Chinese have difficulties to correctly distinguish these two concepts.2
For the convenience of our discussion, here I will refer “Fazhi-1” as “法制” （Rule by Law） and “Fazhi-2” as “法治” （Rule of Law）. After 1949, China’s authority introduced soviet Legal traditions with socialist Constitution ideal by initiating top down judicial, education and social reforms. The ideal of “Fazhi-2” (法治: Rule of Law) had been abandoned as Anti-communist and Anti-People.3 Professors, judges, lawyers, prosecutors who support western legal tradition and “Rule of Law” either lost employments or suffered imprisonment. From the influence of the Soviet Union legal philosophy “Instrumentalism,” the concept of “Fazhi-1”(法制Rule by Law) replaced “Fazhi-2”(法治 Rule of Law) and “Fazhi-1” had been promoted by the authorities national widely. Since then, until 1980, the concept of “Fazhi-2”(法治 Rule of Law) disappeared from China.4
The distinguishing of two concepts among China’s academics began with scholars’ heated debates and comments about two concepts during middle 80s and 90s.5 The first debates about “Fazhi-1”(法制 Rule by Law) and “Fazhi-2”(法治 Rule of Law) was around 1980s, when Chinese society just freed from destructive political campaign “Culture Revolution.” Many scholars began to question China’s socialist law tradition under the ideal of “Rule by Law.” After “Culture Revolution,” many scholars realized that the ideal of “Rule by Law” naturally had serious defects in a society where democratic and constitutionalism under developed.
They argued that during the history of Human dictatorship, such as Nazi German, feudal times or slavery trade times, laws were produced by authority and been severely enforced by state apparatus. No one would deny those societies ruled by law; however, no reasonable person would consider it is a modern justice system. Chinese scholars argued that “Rule by Law” is an ideal under strong influence of Soviet Union’s instrumentalism philosophy that law is considered as a tool to manage a state. It overlooked the Justice, Fairness and Universal value about law and justice system. “Rule by Law” could be peace with dictatorship. “Rule of Law” on the other hand, is philosophy that against “Rule by dictator,” where the justice system could be manipulated by governmental discretion without proper democratic protection.
The concept of “Rule of Law” 法治 emphasized the fundamental values about justice and moral basis of the law. Like some scholars argued “Rule by Law” plus democracy is “Rule of Law.”6 The second debates were occurred during 1996 after the 8th NPC annual meeting proposed the state policy and new socialist concept of “Rule of Law and Constructing Socialist State that Rule by law.” The second debates were more heated than before and ultimately made CPC revised this state policy as “Rule of Law and Constructing Socialist State under Rule of Law.” This policy amendment signified China’s academic finalize the debates of “Rule of Law” and “Rule by Law.” It also suggested that the ideal of “Rule by Law” is less popular than the ideal of “Rule of Law” among Chinese academics.
Today, “Fazhi-1 法制” and “Fazhi-2 法治” had been used under different context. In fact “Fazhi-1法制” has two meanings. The first meaning is “legal system.” In the 2004 Constitution “Fazhi-1 法制” had been translated as “legal system” rather than “Rule by Law.” For western China’s observers, “Rule by Law” has negative meanings under China’s unique Party-State Constitution structure in comparison with “Rule of Law.” The officials had stop promoting “Rule by Law” since 1996 debates. Thus, depends on the context, when officials, governments, judicial systems, CPC promoting “Fazhi” it either mean promoting “legal system” or “Rule of Law.”
NOTES
1 Minzner, Carl F., The Rise and Fall of Chinese Legal Education (August 8, 2012). Fordham International Law Journal, Vol. 36, No. 2, 2013. Available at SSRN: http://ssrn.com/abstract=2128151 or http://dx.doi.org/10.2139/ssrn.2128151
2 It is actually very common to see media or news paper making such mistakes. Law school professors’ especially emphasized this common mistake in their lectures. See Wang songmiao. 2004. “Yifa Zhiguo: Buzhi Yige Ren Zheme Xie.” Procuratorial Daily. http://www.jcrb.com/n1/jcrb416/ca230655.htm
3 If you exam all the law school periodic during 1957-1958, you will find out the level of criticisms about western legal theories.
4 Yue Junfeng. 2011. “Linguistic prospective: From 法制 rule of law transition to 法治 rule of law.” Beifang wenxue.
5 Ibid.
6 Guo daohui. 1996. “Lun Yifa Zhiguo.” Faxue Yanjiu. 3.
There is much to quibble with in this piece. The opening premise, that the choice of "rule by law" rather than "rule of law" reflects a weakness in Chinese language ability or unfamiliarity by Western scholars of the vigorous debates in China over these concepts is factually wrong and condescending. Minzner and other leading Western scholars of Chinese law have strong Chinese language skills, deep ties with the Chinese scholarly community, and familiarity with Chinese legal history, particularly of the last 30 years. I would suggest that theirs is an advised choice not to accept uncritically the translation proffered by the PRC state, which attempts by linguistic devices pre-emptively to identify its current discourse of 法治 with Western traditions of "rule of law." In some contexts, "rule of law" may be warranted. In others, "rule by law" may be more accurate. I think the choice is context specific, and must be scrutinized. Also, this is not the space for an exegesis on history, but the public post-Mao debates over 法治 restart around 1977-78, not 1980, one finds vigorous discussions on this issue in the early 1950s, when the idea of building socialist rule of law 社会主义法治 (not 制) actually was briefly part of official discourse, and of course there was a rich Republican history of 法治. That does not mean that 法治 meant the same thing in each of those instances, but rather that there is a long tradition to which current examples belong. In short, the choice by the CCP to render 法治 for a foreign audience as "rule of law" does not bind scholars outside of China to that convention. They can make their own judgments about the matter informed by what their understandings of "rule of law" require and whether Chinese usage and practice satisfy those requirements. One can then discuss that on the merits.
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