Developing Civil Society in China: From the Rule of Law Toward the Rule of Law?

by Gang Lin

Seminar hosted by the Asia Program,
February 9, 2000, at the Woodrow Wilson International Center for Scholars

Speakers: Hongdah Chiu, Professor of International Law and Director of East Asian Legal Studies Program, University of Maryland Law School
Michael W. Dowdle, Senior Research Fellow, Center for Chinese Legal Studies, Columbia University
Pitman B. Potter, Professor and Director of Chinese Legal Studies, University of British Columbia Commentator: Alison W. Conner, Professor of Law, University of Hawaii, and Woodrow Wilson Center Fellow

Beijing's recent crackdown on the Falun Gong and other political and religious dissidents has raised new questions about China's prospects for developing civil society and an American-style rule of law. How will Beijing reconcile the inherent tension between its rhetorical endorsement of the concept of the "rule of law" and the Party's desire to maintain its monopoly on political power? What are realistic expectations and an appropriate strategy for U.S. policy makers interested in promoting China's legal development? Four distinguished legal experts addressed these and related issues on February 9, 2000, at an Asia Program seminar entitled "Developing Civil Society in China--From the Rule by Law toward the Rule of Law?" attended by approximately 55 U.S. government officials, think tank analysts, businessmen and journalists.

All four speakers have traveled to China frequently, know the country well, and used first-hand knowledge to inform their presentations. The speakers explored the above issues by focusing on China's constitutional framework, legal performance, cultural tradition and developmental goals. With different normative perspectives and empirical approaches, the panelists stimulated a heated discussion on whether China should and would pursue the goal of an American-style rule of law and civil society.

The speakers agreed that China was far away from an American-style "rule of law," but their diagnoses and prescriptions varied widely. Both Michael Dowdle and Hongdah Chiu argued that we should not expect China to follow the developmental trajectory toward an American-type rule of law; a legal system based on European models may be more relevant to China's legal development. Dowdle also urged the United States to put more effort into promoting civil-society-like institutional structures in China, encouraging interaction among Chinese legal experts, and involving the Chinese Communist Party (CCP) in U.S. legal development programs. By contrast, Hongdah Chiu argued that a formal legal system, free of manipulation by the CCP, is more important to developing civil society and genuine "rule of law" in China; the United States should urge the Chinese government to ratify the 1966 International Covenant on Civil and Political Rights.

Pitman Potter of the University of British Columbia took a skeptical attitude toward the lawyers' confidence in formal rules and processes. In Chinese tradition, according to Potter, personal relationships -- known in China as "guanxi"-- are a fundamental element in the legal system. Contrary to the conventional approach that juxtaposes the informal guanxi networks with formal legal institutions, Potter argued that the complementary relationship between guanxi and law would continue to characterize the Chinese legal system for the foreseeable future. Wilson Center Fellow Alison Conner agreed that it is difficult to impose a Western-style formal legal system on different societies, including China. Yet, as Hong Kong's legal development suggests, the rule of law may flourish in Chinese societies under certain conditions.

Asked by the audience to recommend appropriate policies for Washington officials interested in promoting the creation of civil society in China, the panelists recommended that the United States should:

* Engage China with a realistic assessment that the PRC will neither change overnight nor follow American-type rule of law simply

* Put more effort into developing civil society than in creating a formal legal system in China n Involve the CCP in U.S legal development programs while relying on ordinary Chinese people to develop civil society in China

* Encourage interaction among Chinese legal experts themselves, in addition to U.S.-China legal exchanges

In short, this program highlighted China's difficulties in developing civil society and the rule of law in a brief period. The United States should base its strategy for developing civil society in China on a sober evaluation of China's cultural tradition, political context and legal development, and not assume that American institutions and norms are necessarily appropriate for China.