Law According to the Chinese Communist Party: Constitutionalism and Socialist Rule of Law

Abstract

This article argues that the Chinese Communist Party has adopted a unique understanding of law. Unlike the liberal view and the unwritten constitution view, which generally consider law as positive norms that exist independently of politics, the party understands law as a reflection of the party’s and the people’s will and a form of the party’s and the people’s self-discipline. In the party’s view, liberal rule of law theories are self-contradictory, illusive, and meaningless. This article argues that the party views the people as a political concept and itself as a political leading party, marking a fundamental difference from a competitive party in a parliamentary system. The legitimacy of the party’s dominant role and the party-state regime, therefore, depends on whether the party can continue to provide political momentum to lead the people and represent them in the future.

Keywords

party-state regime political and self-disciplinary understanding of rule of law theoretical inconsistency of liberal rule of law political representation political leading party

According to the Decision of the Fourth Plenum of the 18th Central Committee of the Chinese Communist Party (CCP) in October 2014, China aims to “construct a socialist rule of law system with Chinese characteristics and construct a socialist rule of law country” (CCP, 2014). For the first time in the party’s history, the plenum took the rule of law as its central theme and gave priority to advancing “the law-based governance of China” (CCP, 2014).¹

Most liberal scholars have cast doubt on the future of this socialist rule of law project. They believe the rule of law by its very nature requires the basic supremacy of law (David, 1983: 131). Yet while the party advocates socialist rule of law, it also emphasizes the leadership of the party. The Decision of the Fourth Plenum, for example, states time and again that socialist rule of law must be based on “the continuing leadership of the Chinese Communist Party” (CCP, 2014).

The problem of the Chinese socialist rule of law project becomes more apparent when one focuses on constitutionalism. In some minimal sense, constitutionalism means that constitutional law should enjoy the supreme status in politics. All government and social powers should be subordinate to constitutional law. As the Chinese constitution puts it, “all State organs, the armed forces, all political parties and public organizations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated. No organization or individual is privileged to be beyond the Constitution or other laws” (Constitution of the PRC, Article 5). Yet, despite the wide acceptance of this principle, the party in fact does not fully embrace it. The party enjoys a dominant and privileged role in Chinese politics and forbids the interpretation and application of the constitution by the judicial system or a constitutional court.

Liberal scholars believe the party’s rule of law project and constitutionalism are destined to fail. As long as the party places itself above the state, it will never subordinate itself to law. At best, it only intends to build a society that is “ruled by law,”² which means using law as an instrument for the party and the government to rule society. At worst, the party is simply employing the rule of law rhetoric as a form of propaganda to legitimize itself.³ Whatever the true intentions of the party, its rule of law project is theoretically inconsistent. The dominant role of the party or the party-state regime fundamentally contradicts the idea of rule of law (Mo Zhang, 2010).

Other scholars, by contrast, argue that the rule of law, and specifically constitutionalism, is theoretically possible in China. Unlike liberal scholars, they argue that China is a “single-party constitutionalist state” in which the party is limited by a set of written and unwritten constitutional laws, including the constitution of the party, the state constitution, and perhaps long-established constitutional conventions. Therefore, in this interpretation, China has an English-like unwritten constitution, which constrains the power of the party and makes China a constitutionalist state.

This article proposes a new understanding of China’s socialist rule of law and constitutionalism project. Like scholars who argue for an interpretation based on the “unwritten constitution,” I argue that liberal scholars fail to understand the internal logic of the Chinese party-state regime. Understood in terms of its own theoretical framework, the party-state regime is not illegitimate. Yet I argue that scholars who argue for an interpretation based on the “unwritten constitution” view also misunderstand the party-state regime. Like their liberal counterparts, these scholars also fundamentally misunderstand the socialist rule of law project and the character of the Chinese party-state regime.

Both liberal scholars and scholars who argue for an interpretation based on the “unwritten constitution” view, I argue, misunderstand the nature of law. Both of them consider law, whether written or unwritten, as positive norms that exist independently of politics and independently of the process by which the norms are identified. However, this is not the way that the party understands law. Rather than viewing law as positive and objective norms, the party conceives of it as a reflection of the party’s and the people’s will. In the party’s view, the law must be constantly affirmed and overseen by the party and the people. Understood in this way, it can be said that the party views law as a form of the party’s and the people’s self-discipline. The socialist rule of law project is the party’s and the people’s effort to discipline themselves.

The deepest source of the party’s view of law as self-discipline is connected with the character of the party’s understanding of itself and its understanding of the people. Unlike liberal theories, the party views the people as a political concept and representation as a political activity. It also views itself as a political leading party, rather than just an elite party or a competitive party like those in a parliamentary system. The legitimacy of the dominant role of the party and the party-state regime, therefore, depends on whether the party can continue to provide political momentum to lead the people and represent them in the future. The socialist rule of law project is one of the party’s efforts to lead the self-discipline of the people. It is fundamentally political.

Before launching into a detailed analysis, two points need to be emphasized. First, I use the concept of liberal theory very broadly to refer to a large group of theories that differ in their details. The main purpose of this article is to compare the party’s legal and political theory with those of its opponents and for that purpose only the general, shared features of liberal theories are relevant. As Oliver Wendell Holmes Jr. says, “we must think things not words” (Holmes, 1943: 389). What we need to pay attention to is the stark contrast between the party’s theory and the generally accepted Western understanding of the relationship of law to politics. Debates within Western political theory are not important to this project.

Second, although I present a theoretical defense of the party’s legal and political theory in this article, this should not be interpreted as an endorsement of the current Chinese party-state regime. My analysis is purely theoretical. And a theoretical defense of the party’s socialist rule of law theory is very different from determining whether the party enjoys legitimacy, either on its own terms or any others.⁴

In the following section, I first analyze three different theories of constitutionalism: liberal constitutionalism, unwritten constitutionalism, and “socialist constitutionalism with Chinese characteristics.” In the second section, I undertake a more detailed analysis of the party’s legal theory and argue that the party views law in terms of its relationship to the people’s will and self-discipline. In the third section, I turn to the party’s theory of representation and argue that the legitimacy of the party-state regime depends on whether the party successfully acts as a leading political party.

Three Approaches to Constitutionalism

Liberal Constitutionalism

In liberal theory, constitutionalism means the supremacy of constitutional law. Constitutional law restrains all branches of government, political groups, and individuals. Even representative government, which claims to speak for the people, should be distinguished from the constitution and be legally bound by the constitution. In Charles McIlwain’s words, “there is a fundamental difference between a people’s government and that people’s constitution.” While the government may enjoy the support of the majority of the people, the “constitution is ‘antecedent’ to the government” and superior to it (McIlwain, 1947: 10).

Liberals consider the legal character of constitutionalism a touchstone of the legitimacy of the government’s power. “Law legitimates power. Constitutionalism is part of this larger project,” Bruce Ackerman writes in the preface to his unpublished manuscript “World Constitutionalism” (Ackerman, 2015). Law, by its nature, is stable, public, and nonarbitrary. Power, by contrast, is potentially arbitrary and despotic. Therefore, as McIlwain argues, “constitutionalism has one essential quality: it is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law” (McIlwain, 1947: 11).

Viewed through the lens of liberal constitutionalism, the party’s socialist rule of law project seems to violate the very premise of rule of law. The party has no intention of making itself subject to the constraint of law. By emphasizing the leadership of the party as “the most essential trait of socialism with Chinese characteristics,” the party denies the supremacy of law and asserts its privileged, leading role. The party has made it clear that it expects judges to adhere to the “three supremes” principle: “the supremacy of the party’s cause, the supremacy of the interests of the people, and the supremacy of constitution and law.”⁵

In fact, the party not only denies that it is subordinate to the constitution and the laws, it also believes it must be the guardian of the laws. It imagines itself as the leader and defender of law, rather than an organization under law. In all activities related to law, the party has the responsibility to ensure the success of socialist rule of law. As the CCP argues, the party’s leadership should “penetrate into the entire process and all aspects of ruling the country according to the law.” It should “persist in . . . leading legislation, guaranteeing law enforcement, supporting the judiciary and taking the lead in respecting the law” (CCP, 2014).

In real political life, the party also interferes with the constitution and the law. Although the preamble of the Chinese constitution explicitly states that “all political parties and public organizations and all enterprises and institutions in the country must take the Constitution as the basic standard of conduct,” the party in reality enjoys a privileged role in Chinese politics. It has the supreme power to make the most important decisions, despite the constitution’s provision that the National People’s Congress is “the highest organ of state power” (Constitution of the PRC, Article 57).

Liberal constitutional theorists contend that the lack of rule of law, and specifically constitutionalism, makes the Chinese party-state regime illegitimate. In a party-state regime, they argue, the authority of the party fundamentally contradicts the rule of law. As long as the party will not subordinate itself to the constitution and the laws, it will pose a continuing threat to the rule of law. Therefore, even if the party were to successfully develop China’s economy and make China a powerful state, the party-state regime would still be illegitimate. In this view, there is no rule of law that could justify the party-state regime.

Unwritten Constitutions

While liberal scholars generally hold a negative view of constitutionalism in a party-state regime, some scholars argue that China is a constitutionalist state and the party-state is no less legitimate than Western liberal states. The constitutional character of China, they argue, cannot be understood if we look only at the written constitution. To understand Chinese constitutionalism one must turn to the unwritten constitution or the “effective constitution” in political practice. There is, they point out, a big gap between the Chinese state’s written constitution and its real constitutional structure.

Jiang Shigong, a provocative and prominent constitutional scholar at Peking University, for example, argues that Chinese constitutionalism can be understood only from an unwritten constitution perspective. Rejecting mainstream Chinese constitutional studies, which generally claim China has “a constitution without constitutionalism” (Qianfan Zhang, 2010), Jiang argues that focusing on the Chinese state constitution alone is a form of formalism and dogmatism. To get a better picture of Chinese constitutionalism, Jiang argues, constitutional scholars “need to break out of the formalistic shackles of the written constitution so as to explore China’s real-life constitutional spirit, institutions, and conventions” (Jiang, 2010: 16; see also Jiang, 2014a and 2014b).

Jiang’s position is that the real Chinese constitution is the unwritten constitution, which springs from four sources: “the party’s constitution, constitutional conventions, constitutional doctrine, and constitutional statutes” (Jiang, 2010: 16). These four sources, Jiang argues, should be considered as integral parts of the Chinese constitution, although there exists a written state constitution as well.

In Jiang’s view, the party’s constitution and constitutional statutes are parts of the Chinese constitution because they are crucially important. The party’s constitution, for example, plays a significant role in Chinese politics. It has an influence on Chinese politics that is “more significant than the written constitution” (Jiang, 2010: 27). Constitutional statutes, similarly, have substantial impact in local politics. The Hong Kong Basic Law, for example, has become a foundational document for Hong Kong politics and central-local government relations, although it is not a formal part of the Chinese state constitution.

Jiang views constitutional conventions and constitutional doctrines as natural parts of the constitution. Constitutional conventions consist of practices that have been followed consistently and are believed to have the force of law on government behavior.⁶ Constitutional doctrine, on the other hand, refers to the doctrines and theories that accompany the interpretation of the constitution. For Jiang, “just as the U.S. Supreme Court’s interpretations have become an organic part of the American constitution,” the “doctrines and commentaries of both party and state leaders and reports and decisions by the party’s Central Committee on constitutional problems should be regarded as part of China’s unwritten constitution” (Jiang, 2010: 37).

Jiang argues that there is constitutionalism in China because its unwritten constitutional law exerts significant restraint on political organs and groups, including the party. Although the Chinese state constitution sometimes has no binding force, unwritten constitutional law has significant binding force on Chinese politics and thus makes China a constitutionalist state, albeit a very different one from the Western model.

Larry Backer, a professor at Penn State University Law School, makes a similar argument. Like Jiang, Backer also argues that Chinese constitutionalism should not be judged by the Western model, which emphasizes the separation of powers within government. The essence of Chinese constitutionalism, Backer argues, is party-state constitutionalism. The key to understanding this form of constitutionalism is to recognize the separation of the apparatus of the party from the apparatus of the state or the government (Backer, 2009a; see also Backer, 2014a and 2014b). While the party enjoys a monopoly of political authority and decides political issues, the state or the government carries out the decisions made by the party (Backer, 2012).

For Backer, there is not only a separation of the party apparatus from the state apparatus, but also there are laws that stand above both the party and the state. On the one hand, the state is restrained by the state constitution and “is acquiring a governance apparatus true to the basic notions of constitutionalism—rule of law, accountability, and limited government.” On the other hand, the party also “observes the same rule of law framework as that imposed externally on the state apparatus” (Backer, 2009a: 110). In Backer’s thinking, therefore, both the party and the state are subject to constitutional law.

Like Jiang, Backer argues that the Chinese constitution should not be conflated with the Chinese state constitution alone. The Chinese constitution, Backer argues, includes many sources. To understand Chinese constitutionalism, constitutional scholars need to view “both the document constituting the state and that constituting the party as equivalent components that together form the national constitution as understood in the West” (Backer, 2009a: 107–8).

In his studies of Chinese constitutionalism, Backer seems hesitant to confront the question of what Chinese constitutional law really consists of. Yet, like Jiang, he implies that the party’s constitution, together with political and ideological writings, should all be considered as indispensable parts of the Chinese constitution. These documents or writings, Backer argues, should be considered as China’s “Federalist Papers,” which reflect “deeply held views of the Chinese elite” (Backer, 2006: 109). Like the state constitution, they also provide a normative rule of law framework “against which power exercised may be assessed and legitimacy measured” (Backer, 2006: 103).

For both Jiang and Backer, therefore, contemporary China does have a constitution that constrains the exercise of political power and meets the “basic premise of constitutionalism,” thus distinguishing the Chinese party-state “from despotism or tyranny” (Backer, 2009b: 716). Fundamentally, both Jiang and Backer argue that contemporary Chinese politics is built on law-based governance, rather than arbitrary force or power. As Backer puts it, “the move from politics unbounded to a law bounded framework for governance represents a crucial step toward the adoption of a rule of law foundational framework for the organization of political power” (Backer, 2012: 371). Contemporary Chinese politics is “grounded in rule beyond the whim of individuals” (Backer, 2012: 368). Constitutionalism and rule of law have become a defining characteristic of the party-state regime.

Jiang’s and Backer’s Chinese constitutional studies criticize liberal constitutional theories for taking Western constitutionalism as the only legitimate model; they argue for a new understanding of Chinese constitutionalism. Yet, their criticism of liberal scholars should not blind us to the fact that they actually share a core theoretical premise with liberal constitutionalists. For both Jiang and Backer and their opponents, a legitimate regime requires a positive and supreme constitutional law that governs politics. It is the supremacy and the binding force of constitutional law that legitimates and justifies political power. Jiang and Backer disagree with liberal constitutionalists only about the sources of Chinese constitutionalism. They argue that liberal constitutional scholars fail to identify the real Chinese constitution and the way it restrains political power, thereby misjudging the party-state regime as illegitimate.

The Party’s Constitutionalism

Jiang’s and Backer’s unwritten constitutional law theory has significant shortcomings when it comes to explaining Chinese politics and the party’s theory. Although Jiang and Backer seek to trace the contours of a comprehensive constitution and argue that such a constitution binds the CCP, in fact the party itself has never accepted the idea of the independent existence and supremacy of the constitution, whatever it consists of. Quite the contrary, the party has continually asserted the legitimacy of the party’s leadership and even equates the party’s leadership with socialist rule of law. The Decision of the Fourth Plenum contends that “party leadership and socialist rule of law are identical, socialist rule of law must persist in party leadership, party leadership must rely on socialist rule of law” (CCP, 2014). There is no subordination of the party to the constitution and the laws.

In fact, rather than viewing itself as subordinate to the constitution and the laws, the party contends that it should, in a sense, stand above both. The party views itself as the guardian of the constitution and the laws, rather than just an ordinary political organization under the constitution. In the party’s words, “the leadership of the party is the most essential trait of socialism with Chinese characteristics, and is the most fundamental guarantee for socialist rule of law” (CCP, 2014). For the party, the relationship between itself and the constitution and the laws is significantly different from that envisioned in the liberal idea of constitutionalism and the rule of law, which imagines all political organizations as standing “under” or “below” the constitution and the laws.

In this sense, liberal constitutionalists are right when they deny that there is such a thing as liberal constitutionalism in China (Qianfan Zhang, 2010). If constitutionalism means the supremacy of the constitution and the subordination of all political actors to the constitution, then the Chinese party-state system does not qualify as a constitutionalist state. Jiang and Backer try to identify certain institutional features in Chinese politics, yet these formal and informal institutions have never gained the status accorded them in the liberal idea of law.⁷ For the party, they are only temporary institutional arrangements, not law as understood by liberals.

An example is the criminal immunity of the members of the Standing Committee of the Politburo as a constitutional convention. Before 2012, when Xi Jinping came to power, the criminal immunity of the members of the Standing Committee could be identified as a constitutional convention or an unwritten constitutional law under Jiang’s theory, since no member of the Standing Committee had ever been charged with a crime after the Cultural Revolution. However, this constitutional convention quickly disappeared when Zhou Yongkang, a former Standing Committee member and the national security chief, was indicted in 2015. The party simply broke this constitutional convention, without giving any justification for its act.

Another example is the separation of the party and the government as part of an unwritten constitution. Backer considers the separation of the party apparatus from the state or government apparatus as the key to the Chinese party-state constitutionalism. Yet after 2012, much of the government’s power has been substantially taken over by the party, especially the working committees or leading groups within the party. Now the party not only makes political decisions, it also exercises executive power. The party’s Central Leading Group on Finance and Economy, for example, now makes decisions on most important economic issues. This change in the party-government relationship has been decided by the party alone. There is no constitutional law, written or unwritten, that is supreme and therefore unbreakable.⁸

The party, therefore, rejects the idea of the supremacy of law and the liberal understanding of the rule of law. As Paul Kahn points out, liberal rule of law is a way of imagining politics. It is “a distinct way of understanding and perceiving meaning in the events of our political and social life” (Kahn, 1999: 1). At the core of liberal rule of law is the idea that law is superior to politics and always has a legitimate claim on politics (Kahn, 1997). Yet for the CCP, the constitutional conventions identified by Jiang and Backer are not superior to the party and do not have any legitimate claim on the party. Whenever the party decides to break constitutional conventions, these conventions immediately lose their validity.

Law as the People’s Will and Self-Discipline

Although the CCP has never fully embraced the idea of the supremacy of the constitution and the laws, this does not mean that it intends to use the constitution and the laws merely as a sham to justify the party-state regime. But is there an inevitable contradiction between the socialist rule of law project and the party-state regime, as some scholars argue? To answer this question, we need to go back to the basic issue of the meaning of the rule of law. In this section, I argue that the party views law as the party’s and the people’s will and self-discipline.

Socialist Law as the People’s Will

There is an overlapping consensus on the meaning of rule of law among liberals, although the rule of law is usually considered an “essentially contestable concept” (Waldron, 2002: 137). Basically, liberals define the rule of law as the restraint of government, political groups, and powerful individuals by law. It is “a system in which law is able to impose meaningful restraints on the state and individual members of the ruling elite, as captured in the rhetorically powerful if overly simplistic notions of a government of laws, the supremacy of the law, and equality of all before the law” (Peerenboom, 2002: 2).

The liberal understanding of the rule of law should also be contrasted with “the rule of man.” As Richard Fallon puts it, “any account [of the rule of law] should begin with the familiar contrast between ‘the Rule of Law’ and ‘the rule of men’” (Fallon, 1997: 2). The rule of law is anything but the rule of the individual. Laws may be enacted and amended by the people, but after a law is enacted and before it is amended, it is law, not the individual, that should govern. Law should restrain people and their decision making and all political activities should always be carried out within the boundaries of the law (Radin, 1989: 783).

In liberal theories, law can and should restrain people and politics because law is both stable and predictable. “The law—and its meaning” are “fixed and publicly known in advance of application” (Fallon, 1997: 3). Once a law is enacted, it can provide a normative framework.⁹ Humans, by contrast, are unpredictable and potentially arbitrary. Their will, unlike predetermined and fixed law, is undetermined and unpredictable (Wechsler, 1959). It provides no stable guidance for politics. Therefore, “the rule of man” is essentially arbitrary. It substitutes subjective preferences for objective law.

At first glance, the party’s socialist rule of law looks like a sub-category of liberal rule of law. As in liberal rule of law, the party expects law to constrain the exercise of power and subordinate the individual to law. As we see in the Decision of the Fourth Plenum, the party emphasizes time and again that all political organizations and government officials should be restrained by law. Socialist rule of law means that no one should “let their word replace the law [or] use their power to suppress the law” (CCP, 2014).

While the party may agree with liberals on using the law to restrain power, it puts much more emphasis on the role of the people than on socialist rule of law. According to the party, “rule of law construction is for the people, relies on the people, benefits the people and protects the people.” Socialist rule of law, or “ruling the country according to the law,” in the eyes of the party is identical with “the people mastering their own affairs” (CCP, 2014).

Here the difference between the party’s socialist rule of law theory and liberal theories is not whether the people should be the author of law. In many liberal theories, the people do serve as the author and the ultimate justification for law (see, e.g., Ackerman, 1991; Tushnet, 1999; Kramer, 2004). Rather, the difference is whether the people should remain present during the whole process of the rule of law. Under liberal theories, the answer is negative: they may enact a law, but post-enactment the people exist as citizens and individuals governed by law.¹⁰ During this period, every act of government must have its source in law and every dispute among individuals must be resolved by law.

Under the socialist rule of law theory, however, the people, as well as their vanguard and representative, the party, should always remain present. The party considers the people not only the “subject” or author of law, but also its defenders and guardians. Even after the enactment of a law, the people still serve as its “source of strength.” The people, therefore, should be omnipresent. Socialist rule of law should always “persist in the dominant position of the people.” The party, the vanguard and representative of the people, should persist in “leading legislation, guaranteeing law enforcement, supporting the judiciary and taking the lead in respecting the law” (CCP, 2014).

In considering the people as omnipresent and indispensable in the socialist rule of law project, the party holds a very different understanding of law. For the party, socialist law is essentially the people’s enduring will. The socialist rule of law project, accordingly, is a means of the people’s self-governance. Socialist law never exists as a set of positive norms that are independent from the people. On the contrary, socialist law always goes along with the people. It is always the people and their representative, the party, who govern themselves through law.

Socialist Law as Meaningful Law

Contrasting the CCP’s socialist rule of law with liberal rule of law theories reveals serious shortcomings in the latter. Liberal rule of law theories are self-contradictory, illusive, and, in the end, meaningless.

First of all, liberal theories make two contradictory claims. On the one hand, they imagine law as a set of norms with an independent existence. These theories hold that the validity of law arises out of enactment and sustains itself post-enactment. On the other hand, liberal legal theories argue that the people become private citizens or individuals after a law is enacted—that is, their public function ceases. These two claims, however, cannot coexist. Law, understood as norms, exists or remains valid only because the people continuously accept and acknowledge norms as law (Kahn, 1999). There is no moment of separation as imagined by liberal theory. Were that moment ever to arrive, the validity of the law would evaporate. Law cannot exist or remain valid without the people’s acknowledgment or recognition.¹¹ Therefore, the very existence of law presupposes the omnipresence of the people. Even after the enactment of a law, the sovereign people have to continue to affirm and sustain it.

Secondly, the idea of liberal theory that law can provide a nonarbitrary framework for politics is an illusion. According to liberal theories, one of the core merits of the rule of law is that law as norms provides an objective and nonarbitrary framework for politics, whether this framework is the people’s will or some kind of basic norm, or Grundnorm (Kelsen, 1967). Yet, if it is the people who must affirm the very existence of law, then it will always be the people’s will that sets the boundaries of law’s framework.¹² The liberal idea of law, which imagines law as a set of norms, by contrast, is only an empty shell that carries nothing and can provide no stable framework for politics.¹³

Lastly, the liberal notion of law is meaningless in the sense that it could never implement or effectuate itself. Imagining law as a set of norms that could exist independently, liberal rule of law theorists pay little attention to the actualization of law. They simply presuppose that law has binding force. However, the fact is that law as norms alone can never have any binding force at all. For law to restrain power, there must always be responsible people to husband the law.¹⁴ Without the people’s responsible political action to take care of the law, it would only exist as norms or wishes that have no impact on concrete life. According to Wang Qishan, secretary of the Chinese Central Commission for Discipline Inspection, law or institutions, “however perfect, are meaningless without loyalty, integrity and responsibility” (Wang, 2015). Any theory of the rule of law that does not consider the effectuation of law is meaningless.

Seen in this light, the party’s socialist rule of law theory, while seemingly lacking theoretical depth, in fact provides a serious alternative understanding of law. The party considers socialist law not as a set of norms that exist on paper nor only as a belief system that exists in the people’s imagination.¹⁵ Rather, it is the outcome of the serious commitment of the people and a reflection of the people’s deep will.¹⁶ Under the party’s socialist rule of law theory, the people should not only enact law and legitimate the law, but they should also affirm the law and be responsible for actualizing it.¹⁷

The socialist rule of law project, therefore, amounts to the people governing themselves through law. It is similar to an individual’s self-governance. When an individual tries to govern himself/herself through self-rule, the individual is not passively subordinating himself/herself to some kind of positive norm that detaches itself from the individual’s will. Rather, the individual is always affirming self-rule and taking serious actions to realize self-rule.

Socialist Law as Self-Discipline

The socialist rule of law theory is very similar to Carl Schmitt’s legal theory. Schmitt, who describes the “decisionistic” and “personalistic” character of law, argues that law as positive norms is an empty vessel that cannot bring any meaningful juristic order or restraint (Schmitt, 2004 [1934]). To imbue law with order and restraint, law, and especially the constitution, should be filled with the will of the people. Based on this understanding, Schmitt argues that the rule of law and constitutionalism are identical with the continuous affirmation of the people’s will (Schmitt, 2008 [1928]).

Like Schmitt, the CCP also understands the essence of the Chinese constitution and the laws as the people’s will. The Decision of the Fourth Plenum notes that “the people are the subjects of and source of strength for ruling the country according to the law.” The people not only provide the legitimate basis for the law, they also provide “strength” for the law, thereby making it valid and effective (CCP, 2014).

The party differs from Schmitt in that it pays more attention to the disciplinary character of the law. While Schmitt emphasizes the people’s omnipotent law-making and law-deciding power,¹⁸ the party emphasizes the need for the people to discipline themselves. According to the party, socialist rule of law should “make the people understand that the law is [not only] a powerful tool to guarantee their own rights” but also “a behavioral standard that must be respected.” The people should, at the same time, “master, respect and use the law” (CCP, 2014).

The party, therefore, understands the people’s will as a more subtle force than does Schmitt. While the party agrees with Schmitt that the people’s sovereignty is more of a creative than destructive power,¹⁹ the party also sees the potentially self-destructive character of unbounded people’s will. The people, after all, consist of human beings, and thus can be corrupt and irresponsible. To create a better form of the people’s will, the people need to discipline themselves. They need to control their momentary desires and shallow preferences.²⁰

Scholars of Chinese law consider the disciplinary theory of law to be outdated. They consider it a backward theory that has been abandoned by the party itself. Pitman Potter, a prominent scholar of Chinese law, for example, argues that after Mao’s death,

the new attention paid to legal forms marked an important departure from the prior discourse of discipline based on party policy. Although law remained an expression of policy, once stated, it became subject to general scrutiny and discussion in ways that secret party norms and directives did not. Also, once made public, the law was more difficult to change. (Potter, 2003: 109).

From the perspective of Potter and other scholars of Chinese law, by adopting the socialist rule of law project, the party has given up a disciplinary understanding of law.

It may be true that the party pays much more attention to the formal legal system today than during Mao’s time. But, on the other hand, the party has never abandoned a disciplinary understanding of law. Within the party system, the Central Commission for Discipline Inspection has played an extremely important role in politics, especially in recent years. The party’s anti-corruption investigations, for example, usually start with investigations of party members for violation of discipline. The formal legal process of the state can begin only after the intra-party investigation, widely known as shuanggui 双规. The latter is a disciplinary measure outside the regular legal system, but still one under which party members can be detained and interrogated. For the party, there is no fundamental difference between state laws and party regulations. Both are part of socialist law or discipline. While party regulations discipline party members, state laws discipline citizens at large.

In fact, when examined closely, we find the party has a long tradition of the disciplinary understanding of law.²¹ When the party first started to rebuild its legal system after Mao’s death, it intended to use law to discipline mass democracy and limit some rights of the people.²² In the eyes of the party at that time, the people had widely abused democracy and had lost self-discipline during the Cultural Revolution. Therefore, it was necessary for the party to use the legal system to substantially limit some rights of the people, such as the Four Freedoms (speaking out freely, airing views fully, holding great debates, and writing big-character posters) (1975 Constitution of PRC, Article 13). As Peng Zhen, one of the most important founders of the new Chinese legal system, put it, the rebuilding of the socialist legal system should be aimed at “a disciplined process” of “effective democracy” (Potter, 2003: 113).

Representation

One may accept the CCP’s understanding of law as the people’s will and self-discipline,²³ and still question the role of the party in the socialist rule of law project and in Chinese politics in general. Under the socialist rule of law theory, the party enjoys a privileged and dominant role in Chinese politics. The party is, according to the CCP’s constitution, the “vanguard” of the Chinese people and represents “the fundamental interests of the overwhelming majority of the Chinese people” (“General Program,” Constitution of the Communist Party of China). The party always considers itself as the leader and representative of the people.

Liberals, however, reject the party’s claim to lead and represent the people. They believe there is no justification for the party’s privileged role of leading the people. Having a privileged role in politics, the party is likely to manipulate rather than represent the people. Furthermore, some liberals may grant that the party was justified in claiming to represent the people during the revolutionary period by leading the revolution, but in normal times, no one can represent the sovereign people.²⁴

For this reason, many liberal theories assign the representative function to law itself. The constitution embodies the fundamental will of the people and ordinary laws embody the will of the majority of the people. The people can always amend the constitution and the laws if they wish to do so. If they are reluctant or unwilling to abolish or amend the constitution or any particular laws, that means that the constitution and the laws will continue to represent the people’s will.²⁵ Government operates under and according to law, because only the law represents the sovereign people—at least under normal circumstances.

To defend the party’s socialist rule of law theory, therefore, one must defend the party’s claim to the right to lead the people. Such a defense has to begin by setting out the theoretical possibility of locating representation of the sovereign people in a particular agent. This runs directly counter to liberal theories, which distinguish between the representative functions of ordinary democratic governance and the sovereign people, who have no specific locus within these institutions. In this part I defend the party’s theory of representation by providing a political understanding of the people and representing the people.

Nonpolitical Representation in Liberal Theories

Liberal theorists reject the CCP’s claim of leading and representing the people because, first, they believe this claim violates the basic principle of what it means to represent the people. To reiterate, liberals argue that if a party holds a privileged role in politics, it is likely to manipulate, rather than represent, the people’s will. Manipulation, as Hannah Pitkin points out, inherently contradicts the activity of representation. It “is imposed on the ruled, and threatens their capacity to reject a policy or initiate a new one. A person can be led and yet go of his own free will; something that is manipulated does not move itself” (Pitkin, 1967: 233). Under the manipulation by a dominant group, there can be no true expression of the people’s will. The people become like a child to be taken care of at best, or an oppressed people at worst.

This is why liberal scholars today generally reject Thomas Hobbes’s theory of representation. Claiming to represent the people, Hobbes’s sovereign can legitimately do whatever he or she wants. Since the sovereign always enjoys the privileged role of representing the people, whatever the sovereign does can be justified under the name of representation. Hobbes, therefore, in effect promotes a monarchical theory of representation, despite its strong connection with modern liberalism.²⁶ There is no protection against the arbitrariness of Hobbes’s monarchical sovereign.

Liberal theories have developed, in part, in response to this problem of arbitrariness. Some theorists argue that the representative should only passively deliver the people’s will. The representative should act as “‘mere’ agent, a servant, a delegate, a subordinate substitute for those who sent him” (Pitkin, 1967: 146). Others argue that the representative should act as an expert who seeks to discover the objective people’s will. The representative, according to such theorists, should act “as a free agent, a trustee, an expert who is best left alone to do his work” (Pitkin, 1967: 147). Here the restraint on arbitrariness arises from the internal standards of expertise and objectivity.

Despite their disagreement, these theories share a core premise: the people or the people’s will exists as a fact that can be discovered. To represent the people means to engage in the nonpolitical activity of discovering the will of the people. Among liberal theories, the disagreement is only about which method—and which persons—have a stronger claim on having discovered the objective will of the people, a will that precedes the fact of its discovery. Mandatory theorists, for example, argue that laypeople or the represented should play the decisive role in discovering the interests of the people. Independence theorists argue, on the contrary, that experts or representatives of the elite should play a larger role in discovering those interests.²⁷ Both mandatory and independence theorists, however, argue that representing the people means objectively delivering or discovering the people’s will as a positive fact. Neither believes that a representative’s claim to construct the people’s will can be distinguished from arbitrary action on the part of the representative.

Locating representation of the people in the constitution and the laws is an extreme form of nonpolitical representation. If the people’s will exists as a positive fact, it is best thought of as located in the law. The law is more objective and nonarbitrary than any person or group of persons can be. The mandatory theorists’ laypeople or the independence theorists’ elite representatives pose the danger of arbitrary political decision making. Law, by contrast, presents no such danger since a legal text or rule cannot manipulate the people.²⁸

More deeply than a fear of manipulation by the representative, liberals think it is impossible for any group to represent the sovereign people in normal times. An individual or a group may claim to lead and represent the people in extraordinary times, such as a revolution, by “making great personal sacrifices—spending years in prison or exile before triumphing over the old regime” (Ackerman, 2015: 14). Following this line of reasoning, the CCP, for example, legitimately represents the Chinese people because of the sacrifice of tens of thousands of party members during the decades of the Chinese revolution. But with the end of revolutionary politics, it becomes impossible for any party to maintain such a privileged role.

With the gradual normalizing of politics, the revolutionary legitimacy of a political party inevitably gives way to representative politics. In Ackerman’s words, as the revolutionary generation dies off, many opportunists “see the old revolutionary parties as spring-boards to power. These aging movement-parties may also attract second-generation activists seeking to reinvigorate old ideals. But even they can’t claim the charismatic authority earned by their predecessors” (Ackerman, 2015: 14). With the end of revolution and the beginning of normal politics, any claim to a persisting, privileged role of leading and representing the people will be challenged by rivals or political dissidents. Politics must find a way of resolving these conflicts that does not appear arbitrary or merely contingent on the outcomes of past political battles.

The Pathology of Nonpolitical Representation

There are a number of problems with the linking of representation to law in liberal theories. First, as I argued above, the very existence and validity of law in a modern society relies on continuous affirmation by the people. The people’s lasting will sustains law; law does not embody or represent the people’s will. To identify the law with the representation of the people is like a person trying to identify his location by looking at his own shadow. It is always the individual that determines the location of the shadow, not the shadow that determines the location of the individual.

Second, the people’s will cannot exist as a fact independent of political and normative judgment (Näsström, 2007). The people, as both Edmund Morgan and Benedict Anderson argue, are essentially an invented subject or an imagined community (Morgan, 1989; Anderson, 1991). Different persons will have different imaginations of the people. These imaginations are interpretations; there is no truth of the matter apart from interpretation. Like Dworkin’s argument that normative philosophy is an inevitable part of the concept of law, normative philosophy is also an inevitable part of the concept of the people (Dworkin, 1986). Whenever one tries to discover the people or will of the people, one inevitably relies on a normative theory of the people. One will have to confront questions such as whether the people consist of individuals or whether the will of the majority reflects the people’s will. Distinctions will need to be drawn between contingent policies and permanent principles, the people’s will and their temporary interests, and their mistaken views and their reasoned beliefs.

Claims to represent the people, therefore, first require political judgments and political choices. Whenever an individual, however humble he/she may be, claims that he/she has discovered the will of the people, he/she is in fact making a political choice and therefore affirming or deciding the people’s will. This is not the same as a passive act of discovery. Rather, what is involved is asserting what the people’s will should be. Representing the people may, under some circumstances, require representatives to collect information and to be responsive to the represented, but even then a representative cannot avoid making political decisions. There is simply no such possibility because the people’s will in fact does not exist and never has.

Third and perhaps more important, to imagine that the people and the will of the people actually exist is to contradict the very nature of the people’s will. Again as I argued above, the people’s will, by its nature, wants itself to be realized. Like meaningful law, meaningful will of the people is different from mere wishes or suggestions of the people, which are not taken seriously by the people. The people’s will, if it is to become meaningful, always must be realized in politics and have a real impact on concrete life.

For this reason, to represent the people’s will does not mean to engage in a nonpolitical activity of discovering the people’s will. Quite the contrary, representing the people’s will requires the people to take substantial political action to realize their will. Only political activity can make representation meaningful. If a representative never takes action to realize the people’s will, the activity of representation becomes meaningless at best and deceptive at worst.

Viewed from this perspective, liberal theorists’ claim that there can be a nonpolitical form of representation is essentially misleading and their criticism of the CCP’s theory of representation cannot stand.²⁹ On the one hand, the party’s role as leader does not necessarily contradict the principle of the people’s self-governance.³⁰ Since political activity is an inevitable and indispensable part of representation, the political character of the CCP is perfectly compatible with representing the people. On the other hand, it is always possible for a party to take political action to enact its full representation of the people, even during normal times. During normal times, politics does not end and a political party can win the overwhelming support of the people.

The Party’s Political Representation

Defending against liberal theory’s criticism of the CCP’s theory of representation, we are now in a better position to understand the party’s position. As stated earlier, the CCP views itself as a political leading party, rather than just an elite party or a competitive party like those in Western parliamentary systems. The CCP’s theory of representing the people means that the party should take substantial political action to lead the people and win their support. To win their support is not simply to advance their preexisting interests.

The party considers its privileged role to be that of leading and representing the people. It believes the two roles to be not only compatible but also interdependent. The legitimacy of the party’s leadership is ultimately built on its representation of the “overwhelming majority of the Chinese people.” To legitimate itself, the party acts as the “vanguard of the people” and takes political actions to win the support of the people.³¹ At the same time, the party views its leadership as indispensable for the sovereign people. The sovereign people, according to the party, need the leadership of a political party to decide and create a collective and strong will. Only such a will can be actualized in concrete life and only through such a will can true self-governance of the people be realized (Zhu, 2007).

The party, therefore, is similar to the “modern prince” described by Antonio Gramsci: a hegemonic party that leads the people and creates and sustains consensus among them. The modern prince is “the political party—the first cell in which there come together germs of a collective will tending to become universal and total.” It is “an organism, a complex element of society in which a collective will which has already been recognized and has to some extent asserted itself in action, begins to take concrete form” (Gramsci, 1971: 129). The political party as the modern prince provides “a collective will” to lead and represent the people. It is the initiator, advocate, and creator of the people’s will, just as Machiavelli’s Prince is the leader and creator of the national collective will.

Like the Communist party, Gramsci also recognizes the interdependence of the dominant role of the political party and the people’s will. The legitimacy of the political party depends on its ability to create consensus among the people. To justify its role as a political leading party, it must provide the people with “germs of a collective will tending to become universal and total.” On the other hand, the people’s self-governance requires the leadership of a political party. Only a political party, which “has to some extent asserted itself in action,” can provide the people with a “collective will” (Gramsci, 1971: 129), thus representing the people today and in the future.³²

For both the CCP and Gramsci, therefore, the legitimacy of the party’s future depends on whether it can successfully act as a political leading party and sustain the political momentum or impetus needed to mobilize the people. A political party is inherently different from a nonpolitical group or bureaucratic system. It must always bear the responsibility of mobilizing the people so that the people’s will can be actualized.³³ As Wang Hui, the prominent Chinese scholar, points out, “the concept of ‘leadership’ signified the political momentum for comprehensive social movements: although in different periods it can be represented by particular dominant political forces, this concept is not equal to a political bureaucratic system” (Wang, 2014: 223).³⁴ Once a political leading party degenerates into a nonpolitical party or another form of a bureaucracy, it will face a serious challenge in fact and in theory.

Understood in this way, we can better see why the CCP does not view socialist rule of law as a form of liberal rule of law. The party considers socialist rule of law to be a form of the people’s and the party’s self-discipline. As far the CCP is concerned, the liberal idea of the rule of law can never generate within the people the political will and momentum that politicizes them. The liberal idea of the rule of law, viewed from the perspective of the party, is essentially mechanical and depoliticized. It imagines that the people’s interest or will can be represented by the constitution and the laws, which would negate the very need for political leadership and representation.

By contrast, the CCP views self-discipline as basically political and essential to creating the people’s will.³⁵ To engage in self-discipline is to provide the people with political momentum or dynamism. It requires the party to take substantial political action to lead the people through socialist rule of law. As the party contends, it should “persist in leading legislation, guaranteeing law enforcement, supporting the judiciary and taking the lead in respecting the law” (CCP, 2014).

One of the many political activities that the CCP takes is to impose stricter laws on itself. According to the party, party organs at all levels as well as the broad membership and cadres must “not only be models of abiding by state laws, they must also put strict demands on themselves according to the even higher standards of party regulations and party discipline” (CCP, 2014). For example, while state law does not prohibit adultery, party discipline prohibits it and punishes party members who commit it. As the party sees it, stricter requirements for party members does not amount to breaking the party’s promise of socialist rule of law. Rather, it is a way for the party to set a good example for the people and to ensure the success of the people’s self-discipline. It is, for the party, a form of substantial political activity that aims to create consensus and win the support of the people.

Conclusion

What does China mean by the “rule of law”? (Gewirtz, 2014). In this article, I argue that the Chinese Communist Party’s socialist rule of law is very different from the Western liberal idea of the rule of law. In the latter, the law is supreme and politics is subordinated to it. The CCP, however, holds a political understanding of law whereby the legitimacy and validity of socialist law depends on the people’s will.³⁶ Rather than viewing law as a normative framework for politics, the party conceives of socialist law as the embodiment of the will and self-discipline of the people. The people and the party should protect and nurture the law in the whole process of the socialist rule of law project.

In addition, the CCP views itself as a political leading party that represents the people today and in the future. Its legitimacy is founded on its capability to lead the people and create and sustain consensus among them. The party, therefore, provides political momentum for the people. Only by providing this momentum and political will for the people can the people realize meaningful self-governance, thereby legitimizing the privileged role of the party.

The Chinese socialist rule of law project, therefore, is the party’s attempt to lead the people and to create a collective will for them. Whether this project will be ultimately successful, however, remains to be seen. After all, self-discipline requires the people to restrain themselves. Besides, it is essentially a top-down form of political movement. Although it generally has a high degree of support among ordinary people, it seems that ordinary people are insufficiently enthusiastic to participate in such a project. To provide people with political momentum or political impetus, therefore, the party may still have to develop other bottom-up forms of politics in the future.³⁷

Footnotes

Acknowledgements

I would like to thank An Yutian, Feng Xiang, Jiang Shigong, Kathryn Bernhardt, Larry Catá Backer, Liu Han, Philip C. C. Huang, Robert C. Post, Tu Kai, Xu Xiaohong, Zhang Taisu, and Zhang Yongle for reading the manuscript and providing helpful comments. I would also like to express my special appreciation to Paul W. Kahn for his help in improving this article.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

Notes

Author Biography

Ding Xiaodong is an assistant professor in the Law School, Renmin University of China. His research fields include public law and legal theories. He is the author of Meiguo xianfa zhong de De xiansheng yu Sai xiansheng (Mr. Science and Mr. Democracy in the American Constitution), 2016.

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Suli

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