Can There Be “Rule of Law” without “Rule by Law”?

The 2015 Amendment of the Law on Legislation and Its Aftermath

Written By: Wei Cui, Director, Center for Asian Legal Studies, UBC
Posted on August 22nd, 2019 

One of the most popular themes in recent Western scholarship on Chinese law is the distinction between “rule by law” and the “rule of law”. Scholars use the former term—or “thin” rule of law—to  refer to an approach whereby autocratic leaders rely on instruments and mechanisms that can be clearly identified as part of a “legal system” to govern, but frequently do so in disregard of citizens’ fundamental rights. By contrast, real or “thick” rule of law reflects a deeper respect for due process and individual rights, and possibly additional norms associated with Western democratic institutions. Increasingly, scholars assume (or at least contend) that the Chinese government has embraced “rule by law”. In fact, especially given that a legal system barely existed at the end of the Cultural Revolution, China is often applauded for having rapidly built a national legal apparatus to aid its economic development.

But is it true that China today operates under “rule by law”? Consider the following fact, which was the starting point of a research project I pursued with Professor WAN Jiang, a 2016 CALS visiting scholar at UBC. Before 2015, only 49 of China’s prefectural-level cities were authorized to enact statutes and regulations recognized by the Law on Legislation as having the force of law. The remaining 85% of Chinese prefecture-level cities had no power to make law at all! This of course did not mean that governments in these cities did not engage in policymaking or regulation. Instead, they announced their policies informally and, presumably, implemented many of them successfully. Whatever governance initiatives these cities carried out themselves (that is, aside from the national and provincial policy initiatives they had the obligation to implement), it was not by relying on the legal system. Does it make any sense to say that “rule by law” characterized these initiatives?

In an article forthcoming in the Hong Kong Law Journal, Professor Wan and I analyze a 2015 amendment of the Law on Legislation (LL), which allowed all of China’s prefectural-level cities to make law for the first time. (We think this is a quasi-constitutional change in China’s legal system, but apparently few others agree: the LL Amendment has so far received few mentions even from Western commentators on Chinese law, let alone careful studies.) Our article mainly documents two facts. First, the decentralization of legislation ushered in by the LL amendment was possible only because the Chinese Communist Party’s (CCP) highest leadership pushed for it. This is interesting, because while it is consistent with the hypothesis that Xi Jinping wishes to wield the instrument of legality more effectively, it is inconsistent with the assumption that China has been operating under the mode of rule by law already. To the contrary, by the CCP’s own assessment, there is not nearly enough rule by law in China (and the decentralization of legislation was going to help change that).

The second fact we document is even more interesting: very few legal scholars in China spoke in favor of legislative decentralization, and members of the National People’s Congress, quite uncharacteristically, put their opposition to decentralization on record during the deliberation of the LL amendment. One of the main reasons offered for this opposition was that if city governments were given the power to make law, they would make law in disregard of citizens’ rights! Thus, to protect the rule of law, critics of decentralization seemed to argue, one must deny city governments even the possibility of rule by law.

This strikes me as ironic, to say the least: if a distinction between “rule by Law” and “rule of law” can be drawn, it does not seem possible to have the latter without the former. The 2015 LL Amendment thus revealed many of China’s prominent legal thinkers in a catch-22: their instinct about how to enhance the rule of law in China often implies the irrelevance of law. In our article, we offer the following (somewhat provocative, but I don’t think unfair) explanation of the paradox: law is so irrelevant to most spheres of Chinese governance that government bureaucrats responsible for legal affairs are totally alienated and marginalized. They thus embrace the “rule of law” to sustain their professional identity, even when it involves taking positions that would prevent law from becoming more relevant.

Chinese legal scholars were not the only ones caught off-guard by the 2015 LL amendment. There is a quite popular Western literature claiming that China’s success in economic development in the last four decades is partially attributable to a strategy of policy experimentation and deliberate flexibility (some scholars, as I understand them, have tried to debunk this claim). Further, because experimentation and legality are somehow in conflict, the sacrifice of rule of law norms may have been not so bad for China. I have never understood the purported conflict between experimentation and legality, and our article documents that the CCP does not see such conflict either: why can’t policy experimentation be pursued through active legislation?

The real question is why Chinese politicians don’t seem to bother with legislation. This is the focus of some current research we are pursuing at CALS.  One hypothesis about the impact of the LL amendment is that the cities that already enjoyed lawmaking power before 2015 may become more active in lawmaking, since they now have more competitors in the same province. Provinces, on the other hand, may legislate either more or less, depending on whether provincial and city lawmaking pursuits are substitutes or complements.

The following figure, comparing lawmaking patterns before and after 2015 at provinces and the 49 “legacy” cities, shows that the evidence is mixed. At both provincial and city levels, the level of congressional enactment of statutes increased slightly, while the level of regulation-making showed no clear change (or simply continued a previous trend of decline). To me, this seems to support the view that even if Xi Jinping wants to have “rule by law” in China, it does not follow that there will be “rule by law”.

Figure 1: Linear Fit for the Time Trend