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Karen G. Turner, James V. Feinerman and R. Kent Guy eds., The Limits of the Rule of Law in China
This collective work has the great merit of providing a complete multidisciplinary analysis of one of the fundamental questions in the reform of Chinese law and the establishment of a different political system in the People's Republic of China.
Consideration of the rule of law has been underpinning the thinking of specialists and the official programmes of Chinese leaders for the past twenty years now. In fact, it is as if this legal concept, developed by German jurists in the nineteenth century, and that some would characterise as a Western instrument ill-suited to local practicessimilar to the way that the idea of governance has sometimes been instrumentalised by certain international organisations, has served as a standard measure of the advance of democracy in China(1).
The Limits of the Rule of Law in China begins with an observation of failure. For Chang Wenjen, neither Taiwan nor the People's Republic of China have succeeded in setting up a state where the rule of law prevails and nothing allows us today to assert with any certainty that the reforms undertaken tend towards this objective (p. xi). The 11 chapters of this work therefore lead us to study in a Chinese context problems of universal interest to legal theorists, according to Western concepts of federalism or the state but also in terms of a reinterpretation of those models enabling us to stress the specificity of the Chinese responses (p.4). Although no reading grid has really been developed by grouping the contributions together within various subsections, The Limits of the Rule of Law takes us in at least two major directions which provide the reader with keys to understanding. These are the contribution of the past in the construction of the present juridico-political model, and the assessment of this model through the prism of the rule of law, that is in terms of a conception of the state based on the principle of legality and on its jurisdictional control.
It has to be said that semantic wrangling over the translation of the term fazhi as rule of law (based on the association of the characters law and institutions and therefore calling to mind the idea of a legal system) or by rule by law (based on the association of the characters law and to govern and making reference to the law as an instrument of political power) are not only of great interest to specialists but have a real source in legal practice. Whereas a part of the population calls for the setting up of a system that is no longer that of the Prince (renzhi or rule by men), the vagueness of Chinese norms seems to deliberately leave scope for arbitrariness. Starting out from the idea according to which it is generally agreed that for laws and regulations to serve as sources of law and in turn, as authority for the behavior of individuals and legal persons, statutes and regulations must be as clear, comprehensive and unambiguous as possible, Claudia and Lester Ross have concentrated on the fascinating question of the use of language in the Chinese normative production (pp. 221-270). To this end the authors have identified and analysed a certain number of provisions taken from a very diverse range of texts according to a particular selection process but one that seems to them to be representative. They have found that there is a very real ambivalence in Chinese legal discourse which handicaps the enforcement of norms by imposing an ambiguous mandate on judges and officials who are often reluctant to invoke certain rules or impose sanctions on recalcitrant powerful officials. The writers temper their judgement by conceding that the polysemy of laws may also contribute to the settling of conflicts in so far as it offers an expanded space for negotiation.
The contribution of Pitman Potter brings a comparative perspective to the implementation of contract law in Taiwan and the PRC. He concludes form this that the difficulties encountered in China stem in the main from an absence of uniformity between theory and practice. Jack L. Dull, for his part, highlights in the form of an epilogue the historical roots of Chinese resistance to law and its representatives (pp. 325-329). These articles constitute merely a few examples, however, of the diversity of subjects tackled here, others being: why Chinese scholars do not pay sufficient attention to the law according to William P. Alford; the collective responsibility in the Qing criminal law by Joanna Walley-Cohen; and a discussion of federalism by Tahirih V. Lee.
The main weakness of this work that has many qualities lies certainly in the absence of any real definition of the term rule of law. Karen G. Turner makes a brief attempt at it in the introduction, just as each writer devotes a few thoughts to the matter en passant, but this is not sufficient. What are the various commonly accepted meanings of this concept at the junction of national and international law that is sometimes disparaged in the West on account of its very broad scope? Indeed, how do we understand today the implementation of the rule of law in a dictatorial regime, admittedly one undergoing change, but which is still dominated by the overbearing power of the Party-state? Might it be, as some have suggested, that a system of rule of law was created without any separation between the three powers (sanquan fenli) in some areas of socio-economic lifeone obviously thinks here of businessbut not in other areas that would appear still to be governed by iniquitous laws? How then can we continue to use this concept to qualify the Chinese situation, since it would be completely distorted and therefore emptied of any juridical or political meaning?
Is it perhaps the case that not defining the rule of law is a way of freeing oneself from guilt? Yes, indeed, the rule of law is very much a Western concept just like those of democracy, the nation, the separation of powers or control over the constitutionality of laws(2). And so what? one feels inclined to ask. Even if legal transplantations were sometimes to be rejected, as James Feinerman vigorously reminds us, would that mean that the historical legacy of a state or its culture rules out any possibility of evolving towards an altogether different paradigm? Does the universal exist in China? The authors of this work studiously avoid falling into the trap of ethnocentrism, but one sometimes has the feeling that too many precautions have been taken.
In spite of these few observations, one can only strongly recommend this major work to jurists and political scientists alike, as well as to all those interested in alterations to the State in a political regime undergoing change.
Translated from the French original by Peter Brown