The return of legal instrumentalism

There is little doubt that post-Mao legal reforms started on an instrumentalist philosophy. To the then Party leadership, law was important for establishing a social order conducive to economic development (Ye 1979, 3; Hua 1979) and this was summarised by Deng Xiaoping as a ‘Two-Hands’ policy: On the one hand, the economy must be developed; and on the other hand, the legal system must be strengthened (Wang 1996, 7; Qiao 1984, 67).

“Socialist democracy and the legal system [fazhi, sometimes translated as ‘rule oflaw’] are inseparable; both ofthem are [to be used] to consolidate socialist economic bases and to enhance socialist development. At present, they are powerful tools for promoting the Four Modernisations. Neither of them is an end but both of them are means” (Zhang 1984, 41).

The adoption, at the 14th Party Congress in 1992, of establishing a ‘socialist market economy’ as a new direction for economic reform began to change the nature of legal discourse. A market economy, for many Chinese scholars, demanded ‘rational’ law in the sense defined by Max Weber. As a consequence of the new policy, Chinese scholars began to openly argue that a ‘market economy’ was a result of human wisdom; it was not a ‘privilege’ (tequan) for the West (Liu 1995, 70). A socialist market economy, it was often asserted, was an economy under the rule of law (fazhijingji) (Xiao 1994; Chen 1994; Legal Daily 1994; Economic Daily 1994; Min 1994). The establishment and perfecting of a socialist market was thus said to be a process of establishing the rule of law (Wang 1996, 3).

As mentioned earlier, in 1999 China inserted the phrase ‘Ruling the Country according to Law' into the Constitution. This, to Chinese scholars, meant the final acceptance of the notion of the rule of law and thus represented a new landmark in legal construction (Liu 1996, 73). Indeed, discussions on the phrase ‘Ruling the Country according to Law' have all been based on the Western notion of the rule of law, embracing the concepts of supremacy of law, judicial independence, equality before the law, separation of powers, checks and balances, a parliamentary system, and the protection of human rights (Liu, Li, and Li 1996). Similarly, official propaganda machines also emphasised that the adoption of such a term indicated a deeper understanding of the socialist political system, imposed a higher standard for socialist democracy and a socialist legal system, and signified a new era in socialist democracy and legal construction (People's Daily 1997; Lin 1997; Xue and Wang 1997).

Whatever the phrase ‘Ruling the Country according to Law' might mean in practice, it is important to note that it was the arguments for the establishment of constitutionalism, checks and balances, judicial independence, and so on, that transformed the discourse on ‘Ruling the Country according to Law' to suggest that the rule of law per se has value and could be an end in itself. As such, the discourse on these Western notions has its special implications for establishing a rule of law in China.

However, the leadership under Xi Jinping is much less receptive to and more selective of Western influences and international experiences than any of its predecessors in post-Mao China. Perhaps it is just a logical result in asserting a Chinese model of governance. The 2014 Party Decision makes it abundantly clear that China is willing to learn from ‘beneficial' experiences in rule of law practice abroad, but China will not indiscriminately copy foreign rule of law concepts and models.¹⁴ On the face of it, the 2014 Party Decision suggests that China will reject blind Westernisation and, instead, will strengthen and modernise its legal system in accordance with Chinese reality and needs. However, it soon became clear that ‘Chinese reality and needs' will be those perceived and construed by the Party under strict control of the Party ideologues,¹⁵ and the emphasis on ‘Chinese reality' is more about attacking Westernisation/ internationalisation than about moving towards ‘modernisation with Chinese characteristics,' and more about consolidating Party leadership than about establishing checks and balances (QiuShi 2013; Xinhua 2015).

In fact, attacking universal values started even earlier. In April 2013 a secret Party document, Document No. 9, entitled Communique on the Current State of the Ideological Sphere, was circulated within the Party system but leaked through the internet to the outside world.¹⁶ This document makes it clear that the CPC sees universal values, Western constitutionalism, civil society, liberalism, the Western press, etc., as factors that undermine party leadership and socialism. On Western constitutionalism, Document No. 9 states that:

Western Constitutional Democracy has distinct political properties and aims. Among these are the separation of powers, the multi-party system, general elections, judicial independence, nationalised armies, and other characteristics. These are the capitalist class’s concepts of a nation, political model, and system design.

The Document continues that the goal of the recent advocacy for constitutionalism is to use Western constitutional democracy to undermine the Party’s leadership, abolish the People’s Democracy, negate our country’s Constitution as well as our established system and principles, and bring about a change of allegiance by bringing Western political systems to China.

Not surprisingly, an ‘8.19 Speech’, said to be delivered by Xi Jinping on 19 August 2013 at a Party propaganda meeting, was issued internally but was widely circulated by Western media.¹⁷ This speech made clear that the Party must firmly control the right to lead, to control, and to speak in the ideological spheres and all Western notions that undermine Party leadership must be resolutely rejected.

In short, China does not accept Western constitutionalism which includes the separation of powers, the multi-party system, general elections, judicial independence, nationalised armies, etc., and, as such, constitutionalism, however it is understood, remains an elusive goal in contemporary China.

If law and legal reforms are not meant for establishing a rule of law, constitutionalism, checks and balances, judicial independence, and the protection of universal human rights, what is the point in having law at all, other than for purposes defined by the ruling elite? As such, it is not surprising that legal institutions are described as the swords of the Party and an important tool for the people’s dictatorship,¹⁸ and that the President of the Supreme People’s Court, Grand Justice Zhou Qiang not only calls for resolute rejection of the Western notions of constitutionalism, separation of powers, and judicial independence (Legal Daily 2017), but also demands the judiciary to ‘raise the sword’ against the ideologies of judicial independence, separation of powers, and constitutional democracy (Zhou 2017).