```

[Joint House and Senate Hearing, 108 Congress]
[From the U.S. Government Publishing Office]

                       THE RULE OF LAW IN CHINA:

                          LAWYERS WITHOUT LAW?

=======================================================================

                               ROUNDTABLE

                               before the

              CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 1, 2003

                               __________

 Printed for the use of the Congressional-Executive Commission on China

         Available via the World Wide Web: http://www.cecc.gov

                                 ______

83-959              U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003
____________________________________________________________________________
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              CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

                    LEGISLATIVE BRANCH COMMISSIONERS

House

                                     Senate

JIM LEACH, Iowa, Chairman           CHUCK HAGEL, Nebraska, Co-Chairman
DOUG BEREUTER, Nebraska             CRAIG THOMAS, Wyoming
DAVID DREIER, California            SAM BROWNBACK, Kansas
FRANK WOLF, Virginia                PAT ROBERTS, Kansas
JOE PITTS, Pennsylvania             GORDON SMITH, Oregon
SANDER LEVIN, Michigan              MAX BAUCUS, Montana
MARCY KAPTUR, Ohio                  CARL LEVIN, Michigan
SHERROD BROWN, Ohio                 DIANNE FEINSTEIN, California
                                    BYRON DORGAN, North Dakota

                     EXECUTIVE BRANCH COMMISSIONERS

                 PAULA DOBRIANSKY, Department of State*
                 GRANT ALDONAS, Department of Commerce*
                D. CAMERON FINDLAY, Department of Labor*
                   LORNE CRANER, Department of State*
                   JAMES KELLY, Department of State*

                      John Foarde, Staff Director

                  David Dorman, Deputy Staff Director

* Appointed in the 107th Congress; not yet formally appointed in 
  the 108th Congress.

                                  (ii)
                            C O N T E N T S

                              ----------                              
                                                                   Page

                               STATEMENTS

Feinerman, James V., James M. Morita professor of Asian legal 
  studies, Georgetown University Law Center, Washington, DC......     2
Peerenboom, Randall, professor of law, UCLA School of Law, Los 
  Angeles, CA....................................................     5
Purohit, Raj R.J., legislative director, Lawyers Committee for 
  Human Rights, Washington, DC...................................     9

                                APPENDIX
                          Prepared Statements

Peerenboom, Randall..............................................    30

 
             THE RULE OF LAW IN CHINA: LAWYERS WITHOUT LAW?

                              ----------                              

                         TUESDAY, APRIL 1, 2003

                            Congressional-Executive
                                       Commission on China,
                                                    Washington, DC.
    The roundtable was convened, pursuant to notice, at 2:30 
p.m., in room 2255, Rayburn House Office Building, John Foarde 
[staff director] presiding.
    Also present: David Dorman, deputy staff director; Tiffany 
McCullen, for Under Secretary Grant Aldonas, Department of 
Commerce; Alison Pascale, office of Senator Carl Levin; Keith 
Hand, senior counsel; Selene Ko, chief counsel for trade and 
commercial rule of law; Susan Weld, general counsel; and Andrea 
Worden, senior counsel.
    Mr. Foarde. Good afternoon to everyone. On behalf of 
Chairman Jim Leach and Co-Chairman Chuck Hagel of the 
Congressional-
Executive Commission on China, welcome to this issues 
roundtable on the Rule of Law in China. The United States-China 
Relations Act of 2000 created the Commission and gave it the 
primary mandate of monitoring compliance with human rights and 
the development of the rule of law in China.
    Today we have as panelists three experts to give us their 
opinions as to how to translate these abstractions into 
pragmatic ways of evaluating the rapidly changing situation in 
China. We also hope that they will be able to offer specific 
suggestions as to what kinds of exchanges and cooperative 
efforts might be most effective in encouraging the development 
of the rule of law in China.
    Our three panelists are Dr. James Feinerman, the James M. 
Morita professor of Asian legal studies at Georgetown 
University Law Center here in Washington; Randy Peerenboom, 
professor of law at the UCLA School of Law in Los Angeles; and 
Raj Purohit, the legislative director of the Lawyers Committee 
for Human Rights. Both Jim Feinerman and Raj have been our 
guests before in the 107th Congress at hearings and roundtables 
of the Commission. So, welcome back. Randy, this is your first 
time. Welcome, and thank you very much.
    I think we will start with Jim Feinerman. And the way we 
work this is that each panelist has 10 minutes to make an oral 
presentation. After about 8 minutes, I will tell you when you 
have 2 minutes remaining. If you for some reason aren't able to 
make all of the points you would like to make, we can catch up 
with some of them in the question and answer session.
    When all three of the panelists have spoken, we will go to 
questions and answers. In the first instance, calling on our 
colleagues who are personal staffers to our Commission members. 
In the second instance, to our own CECC staff colleagues, 
including the person who organized this particular roundtable.
    So, without further ado, let me call on Jim Feinerman. 
Thank you.

 STATEMENT OF JAMES V. FEINERMAN, JAMES M. MORITA PROFESSOR OF 
    ASIAN LEGAL STUDIES, GEORGETOWN UNIVERSITY LAW CENTER, 
                         WASHINGTON DC

    Mr. Feinerman. Thank you and thank the Commission and its 
staff for having this session today, and inviting us to share 
our views with you. I may have inadvertently set an agenda--I 
hope not--for the rest of the speakers by sending out my paper 
title, which is ``Lawyers Without Law--Prospects for the Rule 
of Law in China after Deng Xiaoping.'' And I will try in the 
time that I have to sort of summarize my points.
    Those of you who are familiar with the literature of 
Chinese legal studies of the last 25 years will know that I was 
reversing the title of a famous work by Victor Li, a former 
professor of law and president of the East-West Center in 
Hawaii, who wrote a book during the Maoist era called ``Law 
Without Lawyers.'' The thing that inspired me to twist Victor 
Li's words--if that is, in fact, what I am doing--was that I 
thought that circumstances had changed so dramatically since 
the period that he wrote about when China boasted of having no 
lawyers. Its legal system primarily consisted of using some 
rather coercive, draconian methods that had the functions of 
law to channel social behavior and control deviance.
    I thought it was worth revisiting those ideas in the light 
of what has happened in the intervening two and one-half 
decades. When he wrote about Maoist China, Professor Li wanted 
to make clear that there existed individuals and entities which 
functioned like law and lawyers, despite the official lack of 
formal law and legal institutions. Hence the title of his book, 
``Law Without Lawyers.''
    In the time that has passed since Li's book was published, 
I think China has developed in ways that Victor Li himself 
would not have predicted from the vantage point of the mid-
1970s. The death of Mao, the end of the Gang of Four, the 
accession of Deng Xiaoping just a few years after his book was 
published, in fact, and a reawakened interest in law or 
socialist legality. An old Soviet era quip noted that socialist 
legality has the same relationship to legality as an electric 
chair has to a chair.
    The law with Chinese socialist characteristics that has 
emerged from that era, which began with a trickle of new laws, 
including the first statutes that encouraged foreign investment 
in China's socialist economy became a flood of code and 
regulations today, even case law that is reported and available 
to those of us in the West who a few decades ago would have 
killed for even a single verifiable case report. The problem 
that we used to have, like Soviet Union Kremlinologists of that 
era teasing intellectual mountains out of informational molehills, 
has been reversed. We are inundated with straightforward legal 
information in almost unimaginable volume.
    So that for those like Professor Peerenboom and I who try 
to teach courses in Chinese law, the idea of having what we had 
in law school, a single course in Chinese law and holding 
oneself out as an all-purpose expert on every area of the 
Chinese legal system, is impossible. It is necessary to 
specialize in, at the most, a few areas and maybe even one area 
as the field grows.
    It is this very volume of legal information that is now 
available about China's legal system that led me to think that 
there maybe is actually less there than meets the eye. So, 
turning Victor Li's formulation around with apologies to some 
other legal specialists, like David Trubek and John Merriman, 
who used this phraseology before, I would like to argue that 
the ``Lawyers Without Law'' perhaps most accurately describes 
the current situation in the People's Republic of China. Let me 
just quickly say what I mean.
    All of the trappings are visible. They have all the 
accoutrements of formal legality that were not present before. 
But, the crucial elements of a Rechtsstaat, a real rule of law, 
a meaningful rule of law, I think are still missing. The 
incidentals are there, but the substance is not. I think that 
the operative rules of the system are still, in many cases, 
buried elsewhere and not adequately described by the formal 
legal system, which is what I set out in my paper.
    In the end, I think you can manage to reconcile the view 
that China has the embryonic beginnings of a legal system and, 
in fact, has made great strides since the period that Victor Li 
wrote about, and even compared to 10 years or 5 years ago. But, 
you have to think about the relevance--or in some cases, the 
virtual irrelevance--of law in the formal codified version to 
make such a reconciliation possible.
    I think that the real explanation of how China works and 
what the state does with regard to legal matters is still 
pretty much outside the formal legal system, although, 
hopefully by iterating and reiterating the rule of law idea and 
talking about law, eventually it may come to conform with the 
reality on the ground. In a few sections, I try to deal with 
various issues to see how law and practice demonstrate my 
thesis, or rather how my thesis grows out of the evidence that 
I have been looking at.
    Finally, I look at the personal relationships or 
``guanxi,'' which literally means connections in Chinese, for 
an alternative system that more closely explains the operative 
norms in Chinese society, the real law, but not the lawyers' 
law. And so I will talk about just very briefly the couple of 
things that I looked at in the system of foreign investment 
regulation, where there is perhaps one of the largest bodies of 
law, which is of great interest to foreign investors and to 
people who are going to make significant contributions to the 
economic development of Chinese society. Even there after two 
decades, there are problems.
    In fact, even today many investors rely on informal 
processes of assurance by local officials, central officials 
when necessary, to overcome various gaps in the legislation. It 
is still the case that very often authorities will 
retroactively revise legislation to assuage foreign investors 
fears, or to address criticism and failed 
policies.
    Even during an era of greater openness--some of it mandated 
by China's recent accession to the World Trade Organization 
[WTO]--there is a continuing significance for so-called 
``neibu''--internal or unpublished--regulations. Eventually, 
these may all see the light of print, but it's a difficult 
process to draw it out. In many aspects, foreign investment is 
governed by rules that foreign investors themselves are still 
not allowed to see, and just must accept as applicable to them.
    My colleagues in the human rights field justifiably have 
criticized China's use of the rule of law to try to justify 
things such as the crackdown on the Falun Gong, which is part 
of a broader governmental effort to control all organizations, 
religious, civil, social, and economic. The use by these 
organizations of modern means of communication such as the 
Internet has made them especially threatening to the Chinese 
authorities. The mechanisms that they use follow the principles 
enunciated in China's Constitution, as well as a number of 
lesser laws.
    Amnesty International, Human Rights Watch, and the Lawyers 
Committee have all made pleas for institutional reforms, which 
I think are necessary in other areas, including criminal 
justice. Every year hundreds of thousands of people suffer 
human rights violations due to the lack of legal safeguards, 
and the lack of independent bodies to prevent abuses, despite 
the formalization in two rounds now--first criminal law and 
then criminal procedure law, which were redrafted in the 1990s 
and significantly expanded. The judiciary lacks independence 
and continues to be subject to political interference. There is 
evidence that torture is rife and because of the system of 
administrative detention, anyone can be detained by the police 
for a number of years without committing any crime.
    I know you have heard previous testimony about the 
implications for human rights and the rule of law of China's 
HIV/AIDS crisis. We are now confronting a new threat of 
communicable disease--SARS. And here again, the lack of 
transparency and the fundamental issues regarding that in 
China's system, which have obvious implications for law, also 
implicate China's ability to operate with international 
authorities. Indeed China kept the World Health Organization 
[WHO] officials who were stationed in Beijing from going to the 
sites of infection in China for some time, even after the 
evidence of the outbreak was quite clear. Somewhat in 
violation, I think, of China's commitments to that 
international organization, and of course, at great threat to 
the public health of 
surrounding regions, and potentially the rest of the world.
    Let me just close in the few moments that remain to talk a 
bit about ``guanxi,'' connections. This is the substitute in 
many ways for law, and some people say reflects the weak legal 
consciousness on the part of the Chinese system, both among 
ordinary individuals and high-ranking officials. But, I think 
it also reflects the fact that many promulgated laws are not 
widely publicized. Much of the Chinese population is unaware of 
their existence.
    Local cadres, on the other hand, are used to creating law 
with the stroke of their pens, or even the utterance of a 
single word. They have not been won over to a new system that 
threatens their prerogatives and promises them very little in 
return. And as long as the newly established legal 
institutions--such as courts, and judges, and lawyers--remain 
untried and underdeveloped, it is understandable that people 
turn back to the things with which they are most familiar. And 
the things with which they are most familiar are these 
institutions of social connections. It is a complicated issue 
in most societies and cultures, and it is particularly 
complicated and highly developed over millennia in China.
    So, let me just say in conclusion, that this basic feature 
of personal relationships and connections between Chinese acts 
as a kind of substitute. In fact, Mayfair Yang, one of the most 
astute students of the institution of ``guanxi'' in modern 
China, sees it as having a kind of oppositional character, 
which explains its persistence, even in the face of law. It is 
the informal organization's, or the powerless individual's 
method of opposing or resisting formal organization. In many 
ways the behavior posits as its goal, opposition to formal 
organizations and even opposition to authority and law.
    As a result, I think as long as the operative norms of 
Chinese society and many different strata continue to be the 
use of ``guanxi,'' there will be a continuing subversion of the 
elaborate regulations and system of law that is being developed 
on paper in the People's Republic of China. Now in the end, I 
think that this can be overcome, as it has been overcome in 
other East Asian societies, including some majority Chinese 
societies on the periphery of mainland China. But, that is 
going to be the real test. The rule of law is only an illusion 
of wishful thinking that contradicts the central reality, I 
think, of the last two decades of post-Mao China, until it 
becomes clear that all of these institutions really function in 
a meaningful way. And that's the test that I think the system 
has yet to meet, yet to pass.
    Mr. Foarde. Jim, thank you very much.
    Let's go right on to Randy Peerenboom. Speak right into the 
mike, and everything will be fine.

STATEMENT OF RANDALL PEERENBOOM, PROFESSOR OF LAW, UCLA SCHOOL 
                    OF LAW, LOS ANGELES, CA

    Mr. Peerenboom. I am very pleased and honored to be here 
today. In these times of international conflict, the necessity 
of developing a positive, peaceful, and mutually beneficial 
relationship with such an important country as China, I think, 
is obvious to us all.
    However, if we are to develop that kind of relationship we 
need to have a better understanding of how China sees its 
position in the world and the challenges that it is facing in 
developing its country and modernizing. Nowhere is this need 
for understanding more apparent than with respect to the 
implementation of rule of law, a notoriously contested concept 
here in the United States and elsewhere in the world.
    So let me begin, then, by defining some terms in order to 
clarify some areas of agreement and disagreement. I think it 
will also put some of Jim's comments in context, because I 
think he raises issues that point to very different kinds of 
concerns. So let me take it from there.
    Conceptions of rule of law generally come in two varieties. 
The first kind is a ``thin'' conception that stresses the 
formal or instrumental aspects of rule of law, those features 
that any legal system allegedly must possess to function 
effectively as a system of laws, regardless of whether that 
legal system is part of a democratic or nondemocratic society, 
capitalist or socialist, liberal or theocratic. Although there 
is some disagreement about these terms, there is considerable 
overall agreement about most of the key features. They include 
that laws be general, public, prospective, clear, consistent, 
stable, impartially applied and enforced.
    Now some of Jim's comments go to these types of concerns. 
For example, the lack of public availability of laws. There are 
still some internal regulations. However, China has made 
tremendous strides in these areas having to do with a thin 
theory of rule of law. There is a clear desire to have greater 
compliance in those areas for many reasons. To the extent that 
there are failures, they are generally due to institutional 
obstacles. There are not political obstacles to these things in 
most cases. China just doesn't have the institutional ability 
to do it. They are working on it and they are improving 
tremendously in most of these areas.
    In contrast to thin conceptions, ``thick'' or substantive 
conceptions begin with the basic elements of a thin conception 
of rule of law. But then they incorporate elements of political 
morality, such as particular economic arrangements, free market 
capitalism versus central planning or some type of more Asian 
development model; forms of government: democratic versus 
single-party socialism; and conceptions of human rights: 
liberal versus more Asian values, or more community-oriented.
    So thick theories of rule of law then can be further 
divided according to these different substantive political 
philosophies that they are based on. The foremost common 
conceptions in China, that is the foremost common thick 
conceptions of rule of law are statist socialist, favored by 
the government; neoauthoritarian; communitarian; collectivist; 
and liberal or liberal democratic.
    Now we in the United States, of course, are most familiar 
with liberal democratic version of rule of law. Liberal 
democratic rule of law incorporates free market capitalism; 
multi-party democracy, in which citizens may choose 
representatives at all levels of government; and a liberal 
interpretation of human rights that gives priority to civil and 
political rights over economic, social, cultural, and 
collective or group rights.
    In contrast, Jiang Zemin and other statist socialists 
endorse a state-centered socialist rule of law defined by a 
socialist form of economy, which means greater public 
ownership--although, that is changing rapidly--a non-democratic 
system in which the Communist Party plays a leading role, and 
an interpretation of rights that emphasizes stability, 
collective rights over individual rights, and subsistence as a 
basic right, rather than civil and political rights.
    If you look at Falun Gong in terms of this framework, you 
see that it is not simply a problem of compliance with a thin 
conception of rule of law. Although there are procedural 
violations of rule of law, there is also disagreement about the 
fundamental substantive norms. How should individual rights be 
interpreted? What should the limits of civil society be, and 
how should free speech be weighed against other interests, such 
as social stability and so on?
    There is also support for various other forms of rule of 
law that fall between the statist socialist type championed by 
Jiang Zemin, and the liberal democratic version preferred in 
Western countries. There is some support for a democratic but 
nonliberal communitarian variant built on market capitalism, 
perhaps with a somewhat greater degree of government 
intervention than in the liberal version, some genuine form of 
multi-party democracy, plus a somewhat more communitarian 
interpretation of human rights that doesn't privilege the 
individual at the expense of the collective as much as some 
liberal democratic countries do.
    A final variant is a neoauthoritarian or soft authoritarian 
form of rule of law that like the communitarian version, 
rejects liberal interpretation of rights, but, unlike its 
communitarian cousin, also rejects democracy. Whereas the 
communitarians would have a genuine multi-party democracy, 
neoauthoritarians permit democracy only at lower levels of 
government, or not at all. Pan Wei, a prominent Beijing 
University political scientist, for example, has advocated a 
consultative rule of law that eschews democracy in favor of 
single-party rule, albeit with a redefined role for the Party, 
or no role for the Party with different leaders in place, but 
still not a democracy. He also advocates more extensive rights, 
freedoms of speech, press, and association, but still limited 
compared to what would be offered in a democratic society with 
more emphasis on strengthening the state and balancing the 
rights of the individuals against the interest of the majority.
    A full elaboration of these various types would obviously 
require greater detail in terms of the purposes and goals the 
regime is intended to serve, and its institutions, practices, 
rules and outcomes. I have done that in this recently published 
book, ``China's Long March Toward Rule of Law.'' Cue, Susan.
    [Susan holds up book.]
    Mr. Peerenboom. Very good. Thank you. Nevertheless, this 
preliminary sketch is sufficient to make the following points. 
Despite the variation, all forms accept the basic benchmark 
that law must impose meaningful limits on the rulers and the 
state, and all are compatible with a thin conception of rule of 
law. Put differently, thin conception provides the minimal 
threshold criteria for any version of rule of law.
    Predictably, as legal reforms have progressed in China, the 
legal system has converged in many respects with legal systems 
of more well-developed countries. It is likely to continue to 
do so, particularly with respect to these kind of basic 
institutional features. Second, at the same time, there is 
going to be some variation in the rule of law regime in China 
even with respect to the basic requirements of a thin 
conception due to the context in which the system is embedded. 
So, for example, you will have differences in the 
administrative law regime with respect to the discretion 
afforded government officials and the mechanisms for dealing 
with abuse. There may also be differences with respect to the 
amount of judicial independence and the forms that judicial 
independence takes in China.
    So, whether you see convergence and divergence is 
ultimately to some extent a function of focus. How closely are 
you going to look? There is going to be broad convergence, but 
still divergence in 
important respects.
    Third, when claiming that China lacks rule of law or that 
it falls short in terms of implementing rule of law, often what 
is happening is people are comparing China's legal system to a 
very particular conception of rule of law, the liberal 
democratic one. Since China does not intend to implement that 
particular version, it is not a surprise that they are falling 
short by that benchmark. But, that assumes certain normative 
issues that need to be debated. Although a handful of legal 
scholars in political science living in China or living abroad 
have adopted a Western-style liberal democratic rule of law, 
there is generally little support for liberal democracy, and 
hence, for liberal democratic rule of law among either the 
leaders or the people in China.
    So, if we are going to understand the likely development of 
rule of law in China, we need to re-theorize the notion of rule 
of law and understand what others mean by that, to avoid simply 
imposing our own views on things, and then either 
misinterpreting what is going on in China, or missing 
opportunities to develop it in ways that are consistent with 
what we would like to see.
    What I then look at in the rest of the comments that I will 
submit for the record are, given that China is trying to adopt 
a nonliberal version of rule of law, does it make sense for 
liberals to support rule of law? And, I argue that even though 
the law and development movement in the 1960s and 1970s failed 
in the eyes of many people because legal reforms were not 
matched by greater public participation and democratic reforms, 
ultimately, looking back at it now 30 years later, legal 
reforms still did impose limits on the government and overall 
were still a good thing.
    When you look around Asia, often even under authoritarian 
regimes, legal reforms pave the way for future political 
reforms. Then once the regime did change, becoming more 
democratic, many of the institutions were in place, more 
developed, and were able to play the role that they need to 
play in a democratic society.
    So, despite these differences, it still makes sense to 
support legal reform changes and rule of law development in 
China. How do we go about doing that? How do liberals then most 
effectively pursue their normative agendas and also the broader 
agenda of rule of law? Well, you can focus on many of these 
kinds of technical changes and institutional developments that 
are to some extent ideologically neutral, the elements of the 
thin rule of law that I was talking about. And, of course, you 
can also continue to have discussions about the larger, 
normative issues and the values of your particular version of 
rule of law and try to persuade both Chinese leaders and the 
general public as to the attractiveness of that particular 
approach.
    [The prepared statement of Mr. Peerenboom appears in the 
appendix.]
    Mr. Foarde. That's great. Randy, we are going to have to 
leave it there, but we'll come back to other points in the Q 
and A, if you please.
    Raj Purohit, please.

 STATEMENT OF RAJ R.J. PUROHIT, LEGISLATIVE DIRECTOR, LAWYERS 
           COMMITTEE FOR HUMAN RIGHTS, WASHINGTON, DC

    Mr. Purohit. Since 1978, the Lawyers Committee for Human 
Rights has worked in the United States and abroad to create a 
secure and humane world by advancing justice, human dignity and 
respect for the rule of law. We support human rights activists 
who fight for basic freedoms and peaceful change at the local 
level, protect refugees in flight from persecution and 
repression, promote fair economic practices by creating 
safeguards for workers' rights, and help build a strong 
international system of justice and accountability for the 
worst human rights crimes. We continue to consider human rights 
conditions in China to be an issue of deep concern.
    We last testified before the Congressional-Executive 
Commission on China in March 2002 at a hearing entitled ``Human 
Rights and the Rule of Law in China.'' We used that testimony 
to note that China had secured a prominent position in the 
international arena, symbolized by its admission to the WTO, 
its successful bid to host the 2008 Olympics and what at the 
time was the recent visit of President Bush.
    We also noted that this has not been accompanied by a 
parallel improvement in human rights. Instead, government 
statements about upholding the rule of law have frequently 
veiled harsh political repression. This is most poignantly 
illustrated by the ``Strike Hard'' campaign, which resulted in 
scores of executions after procedural and substantive abuses of 
criminal law.
    And as you noticed in yesterday's released State Department 
Country Reports, there was a reference to the more than 4,000 
people in 2002 who were reportedly executed as part of the 
``Strike Hard'' campaign during that year. So, it has been 
worth looking at that report.
    The Lawyers Committee has welcomed positive developments in 
the Chinese legal system over the past few decades. However, 
continuing violations illustrate that a strong legislative 
framework cannot be itself secure the rule of law. It is 
necessary to enforce this legal framework in practice. To do 
that, we have recommended that China needs to build a strong, 
independent legal profession.
    I would like to flag our last submission for the Commission 
once more. In it, the Lawyers Committee highlighted its 
concerns about the continuing persecution, threats, and 
harassment suffered by lawyers who confront common injustices. 
I would also encourage the Commission to look at our report 
from 1998, ``Lawyers in China: Obstacles to Independence and 
the Defense of Rights,'' in which we addressed this and related 
issues. In the report, we note that it is essential to bring 
Chinese law and practice into full conformity with 
international standards and thereby to build lasting structural 
guarantees for the protection of human rights. The process by 
which this is accomplished cannot be dictated by outsiders. The 
main impetus for legal reform must come from within. Yet there 
is a great deal that those outside China can do if they have a 
solid grasp of both the extent of human rights violations in 
China and the legal context in which they occur. Unfortunately, 
many of the problems described in that report continue to be 
matters of 
concern today.
    At this time, I would like to shift gears and address the 
impact of the September 11 terror attacks on New York and 
Washington on the promotion and implementation of human rights 
in China. In two recent reports, ``A Year of Loss'' and 
``Imbalance of Powers,'' the Lawyers Committee has noted that a 
significant number of governments have attempted to co-opt the 
war on terrorism, expressing support for U.S. measures, while 
simultaneously labeling domestic opponents members of terrorist 
groups. Leaders who were once criticized and marginalized in 
the global community for human rights abuses have been 
rehabilitated as key U.S. allies in the war against terrorism. 
In still other countries, repressive new laws and detention 
practices have been introduced, broadly justified by the new 
international climate.
    China moved quickly to link the broader war against 
terrorism to its own campaign against separatist Muslims in the 
province of Xinjiang, a vast region with a mostly Muslim 
population. In the past, the United States has criticized China 
for human rights abuses against Muslims in this area.
    Now, China is eager to draw a parallel between its 
crackdown on separatist groups and the United States' battle 
against al Qaeda. In a recent visit to Washington, DC, as you 
all are aware, the Chinese Vice Foreign Minister remarked that 
China, too, is a victim of terrorism and greatly understands 
and sympathizes with the disaster that Americans have suffered.
    Although the Bush administration was initially reluctant to 
link the separatist issue in China to its war on terrorism, in 
August 2002, the State Department listed as a terrorist 
organization an obscure group from the region that China claims 
has ties to al Qaeda. I think the Council on Foreign Relations 
took this issue up 
recently.
    In a series of speeches over the last few months, Attorney 
General Ashcroft has participated in this rehabilitation. In 
commenting on the close relationship between the United States 
and China, among others, in the war on terror, the Attorney 
General has commented that the gulf between nations now 
separates those devoted to the rule of law from those devoted 
to the tyranny of terrorism. It is the divide of civilization 
versus chaos.
    He has quoted the President as saying this is the fight of 
all who believe in progress and pluralism, tolerance and 
freedom, adding that progress and pluralism, tolerance and 
freedom only flourish in rule-of-law, rather than rule-of-
terror, environments.
    There is no doubt that terrorism is the antithesis of human 
rights. And it is clear that international human rights law 
makes plain that governments are obligated to protect their 
citizens from such criminal activity. However, it is also 
apparent that innocent civilians are becoming casualties of the 
international campaign against terrorism.
    U.N. Secretary-General Kofi Annan, among many others, has 
made it clear that there must not be a tradeoff between human 
rights and fighting terrorism. In a recent speech, he stated 
that ``I firmly believe that the terrorist menace must be 
suppressed, but states must ensure that counter-terrorist 
measures do not violate human rights.''
    With this in mind, it is fair to say that the comments of 
the Attorney General are a cause for concern. In a number of 
different issues, questions of regional autonomy, labor rights, 
the creation of an independent legal system, access to the 
Internet--the Chinese Government continues to harshly crack 
down on those seeking greater individual freedoms under the 
guise of upholding the rule of law. In fact, as was mentioned 
earlier by Jim Feinerman, the Amnesty International report on 
the Internet documents how laws have been passed and put onto 
the books in China that really have cut down on the ability for 
individuals to legally get access the Web. In some papers that 
I will include in my written submission, you will notice that 
the Chinese Government has pushed back against labor organizers 
and leaders in a number of different provinces, technically 
speaking, within the legal framework that has been created.
    The U.S. Government, both the executive and congressional 
level, should communicate to the Chinese authorities that 
actions such as these are not those of a country that believes 
in progress and 
pluralism, tolerance and freedom. The Congressional-Executive 
Commission on China has a key role to play in ensuring that the 
Chinese Government is aware that U.S. Government officials are 
closely watching to ensure that in deed as well as in word that 
the rule of law is promoted, protected and advanced in China.
    I wanted to quickly turn to a few recommendations that we 
have, and I will include these in the written submission. The 
Lawyers Committee believes that it is important to recognize 
the educative guiding role that can be played by foreign 
governments, human rights groups, law schools, bar 
associations, and other international actors in the development 
of law in China. Underlining the position of China as a 
prominent member of the international community, efforts should 
be made to ensure the continued involvement of these foreign 
actors.
    The Chinese Government should fully comply with the 
provisions of the U.N. Basic Principles on the Role of Lawyers, 
and to revise those aspects of Chinese law that restrict the 
ability of lawyers to fully represent their clients and to 
organize independent bar 
associations. Lawyers should be free to carry out their 
professional duties without official interference, 
restrictions, threats, or intimidation.
    Particular assistance should be provided to the training of 
lawyers, both in China and abroad. Training programs should be 
designed to fit China's particular conditions and needs. The 
exchange and sharing of relevant information should be 
stimulated. Assistance should also be provided to China's law 
schools for the design of courses and teaching methods. Bar 
associations and the Chinese Ministry of Justice should be 
engaged to create mechanisms that ensure the adequate 
protection of legal practitioners. At the same time to promote 
high professional standards, these institutions should be 
encouraged to publicize and facilitate the rights of clients to 
bring malpractice suits in the belief that these will encourage 
lawyers to seriously consider their professional 
responsibilities. Finally, assistance should be provided to 
train and sensitize the relevant branches of government of the 
importance of the lawyer within the legal system. Thank you.
    Mr. Foarde. Raj, thank you very much.
    We are going to go on to the question and answer session. 
But before we do, let me invite the folks who are standing over 
there--there are seats on this side of the room if you would 
like to come over. You can come around in front if it is more 
convenient. Just watch your step.
    We are going to proceed with the question and answer 
session as we have in the past. Each of us will have 5 minutes 
to ask a question and hear the answer, either of a specific 
panelist or the whole panel, and then we will move on to our 
other colleagues until everyone has had a chance to ask at 
least one question. We understand that Raj may have to go in 25 
minutes or so. When you have to go, go with our thanks. We hope 
we can ask a question or two before you do that.
    So, let me start by asking Jim Feinerman, one of the things 
that we have been hearing over and over again--and in fact, we 
had it in our report last year--is the big gap between the laws 
on the books and the law in practice. Are there specific 
mechanisms that the United States can use to have influence 
over, either through programs, training, pressure, or whatever 
it might be, to make it easier to narrow that gap between the 
laws on the books and the laws as they are actually in 
practice?
    Mr. Feinerman. Well, I think there are probably three very 
direct things that the United States can do to try and effect 
that. First, I say that in those cases where there is a direct 
conflict between the United States and China about 
implementation of law--say for example, China's undertakings 
and commitments with respect to the WTO, which are increasingly 
going to become forceful in China's accession, to make it clear 
that we are going to insist on those things being complied with 
to the letter, and not, as the Chinese authorities have sort 
of--with a wink and a nod--expected in the past. That they will 
be cut some slack and that understandings will be made with 
regard to maybe less than full implementation.
    On a very different note, though, I would say that there is 
also something which--in the current circumstances, I am a 
little reluctant to say this as forcefully as I might--but, I 
think the United States also needs to lead by example. That is, 
if we are going to preach the rule of law to China and to other 
countries around the world, we have to abide by it ourselves. 
And I won't take a position with regard to international law 
and the current war in Iraq.
    I think in many other areas, there is the sense that, for 
example in the WTO, the United States has preached a free trade 
regime to the rest of the world and then imposed quotas on 
foreign steel. We were just the losers in the first round of 
dispute resolutions there, in that particular regard. How we 
then react, what we do in our own legal order to show that, we 
are going to play by the same rules that we expect other 
countries to play by in many different dimensions, I think is 
also important.
    And finally--and I should have mentioned this in my opening 
statement--I do believe that there is a role to be played for 
precisely the kinds of programs that my colleagues on this 
panel have suggested. And I just focus on three very practical 
things that we can do. One is that we can continue a program 
that was previously funded for almost 15 years by the Ford 
Foundation, to ``train the trainers.'' In addition to the 
lawyers and judges, who I think need everything that has been 
suggested and probably more, it is very clear to me that one 
thing that we are missing out on--particularly in comparison to 
countries in the European Union and Canada--is training a new 
generation of Chinese legal academics whose effect will be 
magnified when they teach their students at the burgeoning law 
faculties of China.
    The Ford Foundation Program was done at a time when there 
were only a handful of leading legal education institutions. 
There are many more now. And it is also already almost 20 years 
ago that the program started. So, a whole new generation has 
come of age, and they haven't had the same opportunities to 
study in U.S. law schools, to have training programs in China 
that are sponsored by U.S. institutions and that will 
inevitably reflect U.S. legal 
values.
    I would also add that I think training programs 
particularly 
focused on the bench, the judiciary--some of which are modestly 
underway--should be greatly increased. Particularly in those 
areas where we would like to have the impact in say, criminal 
justice, or in things that are related to international trade. 
The Chinese courts are conveniently organized into separate 
chambers to deal with particular legal matters so that it is 
possible to target the attention, rather than training judges 
who have a more general jurisdiction.
    And lawyers, of course, also increasingly need this kind of 
attention. I think it needs to go beyond what already exists. 
There is considerable discussion already in regular meetings, 
as well as events between bar associations. I worry that a lot 
of that tends to be of a very formal and not necessarily 
substantive sort. I think that we can use the resources of the 
organized American bar and state and local bars as well to 
provide a much more substantive and targeted training for 
lawyers in particular areas that would be much more 
advantageous than having, you know, 3-day annual meetings where 
hundreds of people come together. Those have their value, but I 
think that there is a way of having a greater 
impact.
    Mr. Foarde. Very useful, Jim. Thanks very much. Let me 
recognize my colleague, Dave Dorman, who works for Senator 
Chuck Hagel and is deputy staff director of the Commission. 
Dave.
    Mr. Dorman. First of all, I would like to thank each member 
of this very distinguished panel for taking the time to speak 
to us today and educate us on this important issue, and I think 
an issue that is complex and sometimes difficult to understand.
    I would like to ask--I think it is important for the 
Commission members to understand--each of you in one way or 
another have discussed the accelerating appearance of new laws 
in China, and the growing dialog on the rule of law in China. I 
wonder if you could comment on the extent to which these new 
laws and this dialog have, in fact, to date placed any 
meaningful limits on the arbitrary exercise of power in China? 
This is part of what Professor Peerenboom has described to us 
as the development of a thin rule of law in China. Phrased a 
different way, I believe Professor Feinerman called it an 
embryonic system of rule of law in China. To what extent is the 
development of that system dependent upon the preferences of 
the leadership? Any member of the panel who would like to 
address that, I would appreciate it.
    Mr. Purohit. Yes. I think there is no doubt that the legal 
system and the political process are very much connected. But I 
think that nevertheless, we should recognize the fact that this 
requires dual 
approaches, with engagement at a political level to suggest the 
standards and the benchmarks that go with being an integrated 
member of the international community, and I think, the second 
component, the actual working with the practitioners, the 
professors, et cetera as a two-step piece. So, I agree with 
Jim's comments. But I was thinking back to a conversation I had 
with a colleague who recently spent several months in China 
teaching a number of human rights professors at Beijing 
University about the basic nuts and bolts of international 
human rights law and was invited to go back for a year. That's 
a very small thing, but if we can have those types of things 
coupled with engagement at a political level to say you can't 
simply just pass rules and regulations, et cetera, saying that 
you can't have access to these Internet sites and you can't 
organize this way and that way. I think you need to have both 
things working. That's where the Commission comes in with that 
ability to engage at the political level and then to also 
assist to facilitate the educational component as well. So, I 
think it's a two-track 
approach.
    Mr. Feinerman. I think there is no doubt that the changes 
in the last few years, economic, political, and legal have 
reduced the arbitrariness of the government and have reduced 
the impact of 
government on people's lives. So, in general, political and 
economic reforms have simply freed up people from the kind of 
supervision of the work unit, because now they are just not 
dominated by the work unit. Their decision when they are going 
to have a kid, or where they are going to get their birth 
control is no longer determined by their work unit.
    So, in general, those sorts of trends have reduced the 
intervention of government in daily lives and therefore, the 
opportunities for arbitrary acts of the government. All of that 
is for the good. Specifically, with respect to the legal 
system, the development of an administrative law regime has 
greatly curtailed the ability of the government to act in 
arbitrary ways.
    Now it is true that it's a very weak system at this stage 
for many reasons. Some cultural reasons that people are afraid 
to challenge the government. Some that are typical everywhere. 
If you are doing business with the same government entity over 
and over again, you don't challenge them because you don't want 
to be retaliated against.
    There are also fears of--there are also problems with 
institutions that lack adequate independence because they are 
funded by the local governments; the courts lack independence 
because they are funded by the local governments. Judges are 
appointed by local officials. So, that is an institutional 
feature that needs to be changed before the administrative 
litigation will be successful. Administrative reconsideration 
could be improved by having more independence of administrative 
law judges to whom supervision committees could report.
    So, all of these mechanisms for challenging arbitrary 
government acts can be improved. These are areas where foreign 
countries have the expertise, have the experience, and can 
bring it to the table and help China benefit because they want 
to improve these systems as well. Particularly some of the 
civil law countries, because some of these institutions are 
modeled on the civil law countries.
    Another area where that has helped limit arbitrary action 
is recent changes that have reduced the number of approvals 
that are required, for example, for doing business. There is an 
attempt to pass a licensing law and to deregulate to some 
extent or to make licensing more efficient. One-stop shopping. 
All of this, again, is meant to limit arbitrary action.
    It is true that there are still many areas that are very 
weak, but you also have to look at the particular areas in some 
cases and analyze the problems. For example, many of the 
criticisms are focused on the criminal system. Some of the 
reasons why the criminal system is particularly weak in China 
is that many of the rights that are provided by law are not 
actually implemented. The gap is particularly large because 
there is very little support among the members of the public 
for criminal law reforms. They don't see it as in their 
interest. They want to be tough on crime. They overwhelmingly 
support the government's ``Strike Hard'' campaigns, 80 to 90 
percent of the people, despite the fact that China executed 
more people in 3 months than all of the other nations in the 
world did in 3 years. Most people, 99 percent of the people, in 
fact, think capital punishment is necessary in China. Twenty-
two percent think there should be more. So, given that kind of 
environment, it is very difficult to achieve meaningful reforms 
in the criminal law area without educating the public about the 
relationship between capital punishment and deterrence, for 
example. Is there or is there not any deterrent effect? And, 
also what are the alternatives to harsh punishment? Perhaps it 
will have some effect.
    Another way of dealing with the situation is focusing on 
particular institutions. The police are most involved in the 
criminal area. They are also responsible for many of the 
abuses; much of the torture is at the hands of the police, 
obviously. Part of the reason for that is they lack the 
forensic tools to investigate crime. So, this is another area 
in which many other governments are not working with China to 
address the situation by providing them technical skills and to 
some extent, some of the resources to deal with criminal 
investigations without relying on torture. So, again, there are 
many opportunities for collaboration on specific issues.
    Mr. Foarde. Thanks very much. Let's go on and give a chance 
to some of our colleagues here on the staff to ask some 
questions. I would recognize Tiffany McCullen, who represents 
Under Secretary of Commerce Grant Aldonas, one of our 
Commission members.
    Ms. McCullen. Thank you, John. Actually, I would just like 
to thank the panelists for the useful information they are 
imparting to us today. Actually, Randall answered my question 
when he did his response. Thanks, John.
    Mr. Foarde. Then it is my pleasure to recognize Alison 
Pascale, who works for Senator Carl Levin of our Commission.
    Ms. Pascale. Thank you. I wanted to ask you what you think 
the impact has been of China's WTO membership. Many people 
argued at the time that allowing China into the WTO would force 
them, at least in the economic arena, to abide more by the rule 
of law. And we have seen some liberalization in terms of the 
rights of the individual in China, and their ability to 
challenge certain economic wrongdoings. For example, if the 
government took possession of an individual's property, they 
may be able to successfully challenge the government. Have you 
seen that translate into other arenas such as in civil cases or 
human rights cases? And also, I wanted to know, what impact 
corruption has on the ability to develop rule of law in China? 
I would like to hear your comments on that, any of the panel.
    Mr. Feinerman. Well, I will try and answer a couple parts 
of that. I don't know if I can answer everything. On the WTO 
side, I would just mention that I've been part of a group 
working with the World Bank to study the effects of China's 
accession to the WTO, and the thing I am working on 
particularly is the central-local relations problem. And I 
would just say as a very broad, general matter that although 
the central government, particularly the Ministry of Foreign 
Trade and Economic Cooperation--which has just been merged into 
a new Ministry--has been very diligent. They tried to get ahead 
of the curve. They really--not only in the legislation, but 
actually in the practical enforcement, I think--went well 
beyond what China's preliminary undertakings were in the 
initial protocol of accession.
    But the problem in China is the multi-level government 
process by which WTO undertakings are actually enforced. And 
from the grassroots up, they are still a very serious problem. 
It particularly affects certain industries, for example, the 
automobile industry, which I know your member is quite 
interested in. Because there is a strong local interest in 
particular economic organizations, part of the heritage of a 
Maoist kind of economic autonomy, where every province had its 
own factories to do every part of the economic 
universe.
    As a result of that, there is still a great deal of local 
protectionism. There is a great deal of obstruction at the 
local levels, despite a State Council ban that came out in 
advance of China's WTO accession to try and end these 
practices. They persist. And I think it is going to be a very 
long row to hoe with respect to those aspects of local 
protectionism.
    The point about corruption--I think here there is good news 
and bad news. The good news is that there is a great deal of 
attention being paid at highest levels to corruption. There 
have been people who were previously considered untouchable, 
who 5 or 6 years ago would not have been prosecuted or would 
have been just quietly edged aside and allowed to go into a 
kind of retirement or maybe house arrest, who are now being 
prosecuted.
    The bad news is the prosecutions usually impose the most 
draconian penalties, including things like the death penalty, 
for embezzling large sums of money. So, from a human rights 
perspective, it is a good idea that corruption is wiped out 
across the board, and it will improve the overall operation of 
the legal system. The means that are being used to do it, 
however, create their own problematic elements. Aside from 
that, they may make certain people reluctant to use the overall 
process because of the very severe penalties that are imposed.
    There is also an interest in what seems to be emerging as a 
slight backlash. There is a story in one of China's liveliest 
newspapers, Southern Weekend, about a local government official 
who was brought up under these administrative provisions that 
Professor Peerenboom mentioned, who then decided to counter-sue 
his accusers. It is an interesting question that China's legal 
academics are debating, and this is being widely reported, at 
least in the popular press in China--it hasn't made it into the 
legal press yet--about just what the attitude should be. Is 
this a good thing or a bad thing.
    Should people who may be unjustly accused of official abuse 
be allowed to take on their accusers? Or should public figures 
who, you know, exercise a kind of public trust be subject to a 
special kind of discipline, and be--as they are under our 
defamation laws in the United States, for example--unable to 
pursue defamation or libel actions against people who bring 
charges against them. These things are all just beginning to be 
worked out in China today.
    Mr. Peerenboom. On the WTO question, I think there have 
been very interesting developments because the argument was WTO 
would lead to liberal reforms, or strengthen the hand of 
liberal reformers. One thing that we have seen in China is that 
many of the reforms have gone well beyond what is required by 
WTO, but, people have invoked the WTO to support them.
    One example is making it easier for China's citizens to get 
passports. The WTO has nothing to say about whether Chinese 
citizens can get passports and what the requirements are. But 
when they made the regulations easier, their rationale was that 
this reform is necessary because we have now entered into a 
more global economic arena and Chinese citizens and business 
people should be able to compete on easier terms. This reform 
facilitates that goal.
    A more significant example is what I was talking about 
earlier. It's the fundamental change in the conception of the 
approval process and the government's control. Up until now, 
the government has tried to control all business activities. 
And now they are backing away from that, trying to leave the 
market to take on more of the regulatory functions, and 
discipline wayward actors, rather than the government 
monitoring them. But, even when there is going to be approval, 
they are trying to make it more efficient--now this is an 
example of a ``spill-over'' effect because this helps not only 
foreign companies, but domestic companies as well. Anybody 
doing business in China benefits from this kind of regulatory 
change.
    In general, WTO has reduced the differences between the 
domestic economic regime and the foreign economic regime, 
sometimes to the disadvantage of foreign investors who had 
preferential treatment and no longer have it, but generally to 
the benefit of both sides of the equation.
    WTO has also resulted in considerable institution building, 
which again, has ``spill-over'' effects into all areas of law. 
As you raise the level of professionalism of the courts, the 
competency of judges, that affects all the types of cases that 
they handle. The deregulation issue that I just mentioned also 
goes to the issue of corruption, because one of the main ways 
of reducing corruption is by depriving rent-seeking government 
officials of the opportunity to have any discretion over 
decisions. And by changing that, they cut the legs out from 
under them.
    Needless to say, these changes meet with resistance. They 
meet with resistance by rent-seeking officials who are paid 
very low salaries and like the corruption, and also the WTO 
changes meet with resistance by certain industry players who 
are going to lose. So, you can expect to see political pressure 
on government actors to protect them through various forms, 
just as in every other situation where countries try to 
circumvent the WTO rules to protect certain industries.
    Finally, on this issue that Professor Feinerman just 
mentioned about defamation, this is very interesting 
development because it could be the beginning of a very 
negative trend. As you know, in Singapore and Malaysia, the 
government has used the legal system to attack political 
opposition figures. That has not happened in China. They've 
used the legal system to attack dissidents, but they haven't 
used defamation laws as a way of curtailing free speech. So, we 
don't want to see that happening.
    Mr. Foarde. Very useful. Thank you. Let me recognize Susan 
Roosevelt Weld, the general counsel of the Commission.
    Ms. Weld. I am always interested--in many situations the 
rule of law seems to be imposed from the top. The government 
decides that rule of law is a good thing, sometimes because of 
pressure from outside, in the case of WTO, or from global 
pressure of different kinds. What are the ways in which rule of 
law is fostered inside China from below? I'm thinking of those 
multitudes of social statutes which guarantee disabled people 
equal rights, elderly people a means of subsistence, workers in 
the workplace a safe and healthy workplace. How do they 
actually make those things become real for them under China's 
rule of law system?
    Mr. Feinerman. Well, I think there are a couple of things 
to keep in mind. One, the administrative litigation system that 
Professor Peerenboom mentioned earlier is something that has 
been invoked by tens of thousands of Chinese, in many cases 
with the individual citizen claimant winning suit against the 
local government official. So, it is one of the most important 
ways in which--a full range of official misbehavior receives 
legal administration. That can be used for local government 
officials who don't do what they are supposed to do, who don't 
give you the benefit that you are supposed to get under the 
locally applicable statutes.
    The fact that people now--because it has been publicized 
for over a decade--know about the availability of this and are 
increasingly willing to use it, putting the lie to what some of 
us learned in law school that the Chinese were a non-litigious, 
compromise-seeking people who would never go to court, even if 
the opportunity were offered to them. It is quite clear that 
once the institutions are constructed, it is sort of a ``Field 
of Dreams'' approach, ``if you build it, they will come.'' And 
they have come in droves to use that law.
    As these things are refined and expanded, and particularly 
some of the things that were also mentioned, such as the 
administrative supervision and compensation laws, are fine-
tuned, then I think it will be possible to even further expand 
them. On the other hand, I don't want to oversell the impact of 
this. I believe it is still the case that in many localities, 
local bureaucrats rule with an iron hand, that local 
populations or individual workers in a particular factory, for 
example, may feel justifiably reluctant to exercise the legal 
rights that they have on paper, and that there will be severe 
penalties for pushing too hard against the system.
    I think that what the higher level leadership can do to try 
and break through this is to continue to publicize, in the 
various media that are available to them, those breakthrough 
cases and encourage other people to do likewise. But they have 
a countervailing impulse, which is to try and keep the lid on 
social order. When you see the many places in China, for 
example, over the last couple of years where workers have begun 
wildcat strikes and virtual riots because of layoffs or because 
of unpaid wages and benefits, it is clear that the local 
officials may face very difficult prospects. Some of it, 
ironically, is actually exacerbated by economic reform and WTO 
accession.
    Mr. Peerenboom. I think the ability of the legal system to 
affect social justice and deal with many of the most pressing 
social/economic problems in China is very limited. It is 
limited by the political reality and by the lack of resources. 
The central government simply doesn't have the resources, and 
local governments under economic reforms that are responsible 
for delivering on the social services don't have it. They don't 
have the resources. They can't pay for it, and that leads to 
demonstrations.
    Local government officials are assessed on the basis of 
economic growth and the ability to maintain political order. 
So, they don't want to see demonstrations, but they can't stop 
them from happening, because they just don't have the resources 
to pay off all of the pensioners and all of the laid off 
unemployment claims that are arising.
    So, I just think a legal system in that environment is 
subject to overly-great expectations. I think this is in 
general a problem that many people now are looking to Chinese 
legal institutions to deliver social justice. The legal system 
is just not sufficiently strong, or institutionally capable of 
doing that, first of all. Second of all, popular expectations 
are just too inflated. No legal system can solve all of the 
social and political problems of the country. And people are 
going to court with these inflated expectations that everything 
has a perfect ending, a legal solution. And it just doesn't. 
Sometimes they need to press their claims in other arenas, 
political and so on, rather than through the courts.
    Finally on this issue of whether reforms have been top-down 
or not, I would say nowadays the government is hanging on by 
its fingernails as the reforms come percolating up to the top 
for the most part. Many of the most important changes are 
coming from local governments and local actors who are 
responding to real problems. For example, in the criminal law 
area, they don't have enough judges--given the rise of crime 
and the number of cases--to actually process them. So, they 
started developing summary procedures, completely outside the 
Criminal Procedure Law, but just in response to a practical 
problem that gets pushed up to the top. Now there is a central 
level regulation, basically codifying that kind of change 
toward summary procedures. So much of the change is really 
happening in that way. People on the ground are trying to 
address real problems, and then sending their solutions up to 
the top. The top level then looks around, says ``This is the 
best solution we have so far, let's go with it.''
    Mr. Foarde. Thank you both. Let's go to Keith Hand, who is 
senior counsel on the Commission. Keith.
    Mr. Hand. A question for both of you. As the Commission has 
gone forward in its work of developing recommendations and 
policy ideas for enhancing rule of law in China, some critics 
have argued that rule of law funding for programs involving 
conservative institutions in China, such as the Public Security 
Bureau, merely strengthens the pillars of authoritarianism in 
China. How would you respond to that assertion? If you 
disagree, how can these types of programs be most effectively 
structured to achieve the objective of enhancing rule of law, 
however defined?
    Mr. Peerenboom. Well given my comments earlier, I think 
that basically the long run benefit is in strengthening these 
institutions and anything that promotes rule of law under 
whatever thick conception you accept as good. To put it very 
simply, would you rather be in an authoritarian state with rule 
of law, some rule of law or none? Basically, in China you are 
better off now than you would have been in the Mao Zedong era. 
So, although there are concerns that by working with some of 
the more conservative forces you may be strengthening the 
state, I think they can be easily overstated. For the most 
part, there are other people working in the system that will 
ensure that the strengthened institutions are also working in 
the direction and for the protection of individual rights, 
including members of the international community, human rights 
organizations, and Chinese academics.
    So, I think that, in particular, the police and the 
procuracy are two organizations that are just calling out for 
more attention. The procuracy is particularly ripe, because the 
head of the procuracy at present is a very reform-minded 
individual who is looking at systemic change. The whole role of 
the procuracy, as you know, is changing. They've moved from 
essentially a organ purely of the state to crack down on crime 
to a adversarial system where the procuracy's role, has to 
change to some extent. The procuracy is grappling with that 
change. How do they conceive their new role, and then how do 
they most effectively implement it?
    A more difficult organ to work with is the Public Security 
Bureau or the police, simply because police work is so 
localized. If you go to the procuracy, you can work with the 
Central Procuracy Training College. They can develop materials. 
They can have distant learning programs. All of these things, 
the procuracy is now talking about. But when you go to the 
police, it is a much more diverse organization. The conditions 
at local levels are very different, and also to some extent, 
the incentives of local police may be very different than the 
reform minded individuals at the top.
    The police at the local level may be more interested in 
maintaining law and order and may be more willing to break the 
rules. The people at the top have a difficult time. So, you 
have a principal-agent problem that is a little bit different 
than in the procuracy. So, again, I think there should be 
efforts to work with these organizations. Many of the human 
rights organizations, particularly in Europe are now 
experimenting in various types of programs with both the 
procuracy and the police, but the United States and Canada have 
been a bit behind so far in these efforts.
    Mr. Feinerman. I would just supplement what Professor 
Peerenboom said in two areas. One, I think that something he 
was pointing to is that often there is an overly monolithic 
view of Chinese institutions, and particularly huge 
institutions that have tens of thousands of people working in 
them, such as the police. There are very conservative, 
bullheaded people in them, and there are also very reform-
minded, forward-thinking people, many of whom even have command 
of foreign languages.
    In a couple of cases, I have invited such people to come to 
my institution. They have been to other law faculties and 
beyond the law faculties, other places in the United States as 
visitors, even as short-term visiting scholars. And I think 
that we should encourage that.
    Second, I think that one of the things we have to think 
about is who should do the kind of training or contact with 
these groups. It may not be the best thing--not that I don't 
value the work that they do--for human rights organizations to 
be lecturing police, where the focus is going to be primarily 
on police violations of human rights. They would do that if 
they were lecturing to police here in the United States. A 
better approach for the police in China by putting U.S. law 
enforcement organizations in touch with their Chines 
counterparts, putting U.S. district attorneys and prosecutors 
in touch with their Chinese counterparts, and try to think 
about how the institutions might cooperate.
    One of the problems we have is that very often we get at 
American law schools applications from Chinese people who 
essentially have a law enforcement or similar background, and 
our law faculties have a much more narrow curriculum than our 
counterparts in China. With the exception of the John Jay 
College of Criminal Justice in the state university system in 
New York, there is really no academic institution that has the 
kind of faculty that many Chinese law faculties have. So, we 
don't have counterparts for them to come to in the United 
States.
    But those people are looking for something. They are eager 
to be trained and we just can't find the appropriate fit for 
them in American institutions. We may need to think about 
designing one. I know that people in the judiciary, including 
several justices on the U.S. Supreme Court, have been very 
active in pursuing judicial training opportunities. I think we 
may need to think not so much about the high-end of the 
judiciary, but about the low end of the judiciary, about the 
people who would be the equivalent of judge magistrates and 
those who are really carrying out the implementation of law at 
the place where the rubber meets the road in terms of 
enforcement, and give them the kind of attention that is 
lavished on the seniormost judges in the Chinese system, who 
very often may have little to do but judicial administration.
    Mr. Foarde. Next I would like to recognize Andrea Worden, 
also a senior counsel with the Commission.
    Ms. Worden. Thanks, John. I am wondering if you all have 
any thoughts on the relationship, if any between the rise of 
NGOs and civil society in China and the development of the rule 
of law, however defined?
    Mr. Feinerman. I'll go out on a limb here. I think that 
although there has been a great deal of development in that 
area, and there are certainly NGO's in an emerging civil 
society in China, I would say one of the most striking gaps in 
Chinese society today is at that level. In fact, there is a 
whole new vocabulary of terminology that has been developed to 
describe what the NGOs in China are like, GONGOs, QUONGOs--
government organized NGOs or quasi-NGOs. It is a hopeful 
development in some ways, because I think that they have the 
potential to, you know, like the caterpillar from the cocoon, 
emerge eventually into a genuinely independent kind of NGO that 
would provide for a broader and deeper civil society.
    But, I don't think that they are quite there yet. And it's 
a problem, particularly when American institutions like that 
are looking for counterparts in China. The Chinese Government's 
Human Rights Society is not the counterpart of Amnesty 
International or Human Rights Watch. And they are going to have 
problems trying to make a fit.
    It has problems everywhere, beginning with the 
authorization and law, but even with the way that they are 
funded. There is nothing like the tax deductibility of 
contributions. For obvious reasons, the government may not want 
to grant that. Aside from that, how do you began to give scope 
for civil society? In China today, there is very little 
daylight between those organizations and the Chinese 
Government, and maybe one of the things that we can do is try 
and help push in the wedge that may separate them further from 
their beginnings.
    But, on the other hand, I don't want to counsel that we 
should ignore them. Too often, particularly sometimes 
moralistic Americans will say, ``I want nothing to do with that 
organization, because I know that it is state-run. It is 
Communist Party controlled.'' Again, these institutions are not 
monolithic. The people in them have different motives. Some of 
them may be very independent-minded, and others may just be 
following the Party line. If you reach out to them, there is 
the potential of having an impact, although I think probably 
down the line.
    If you look at the development of other Asian societies--
some of them Professor Peerenboom has also studied and written 
about--you can see how there might be a potential for them to 
mature as happened in places like Taiwan, South Korea, even 
Singapore and Malaysia, other more authoritarian societies, 
where eventually there was this possibility to break away and 
begin to develop true independence. So this may just be the 
beginning stage of that happening in China.
    Mr. Peerenboom. I think the situation is always very 
complicated. First of all, these socio-political philosophies, 
thick conceptions rule of law that I talked about earlier have 
very different 
notions about what the proper scope and nature of civil society 
should be. Most Asian countries impose all sorts of limits on 
freedom of association, including registration requirements 
that we would find abhorrent, but that they find necessary for 
social order. So, that's the first thing. There are just 
different limits and different conceptions of what the role of 
civil society should be.
    That said, I think this is one of the areas where China 
falls down, one of the weakest areas in China. I think the 
limits on freedom of association and social organizations are 
more extreme than they need to be. They are also becoming 
counterproductive, because the government's capacity to deliver 
social services and provide information is increasingly 
limited. And the NGO's or the social organizations could 
provide some of those services. They could pick up some of the 
slack.
    Now, the government knows that. So, the government has, 
relative to the past, authorized the existence of a number of 
these organizations. And they have varying degrees of autonomy. 
It is not at all monolithic in how much autonomy and 
independence these organizations have both by category--for 
example, commercial 
associations, business associations tend to have somewhat more 
autonomy than say, obviously, religious organizations--but also 
within those categories. So, there are some commercial 
associations that are much more independent than others, and 
some social organizations that are much more independent than 
others.
    So there is work that can be done in terms of trying to 
persuade the government that perhaps they don't need to be 
quite as restrictive. But even within the current limitations, 
there is a lot that can be done with the existing 
organizations, even some of those that are most embedded in the 
system. In fact, many of those that are most embedded in the 
system are the most effective, and they are the most effective 
precisely because they are embedded in the system. That is the 
way it works in China today. You need to have connections with 
the powers that be to get anything done.
    So it might be nice to give a lot of money to some 
completely independent human rights organization or labor 
organization if such a thing existed, but it wouldn't 
necessarily have any impact on policymaking or what actually 
happens. So, sometimes you need to do business with whomever 
can do business.
    Mr. Foarde. Let me recognize Selene Ko, chief counsel for 
trade and commercial rule of law.
    Ms. Ko. Professor Peerenboom, earlier you discussed the 
fact that the Chinese Government and the Chinese people don't 
necessarily embrace this thick concept of rule of law that may 
be recognized in other places, especially the liberal 
democratic version of the concept. I was wondering if you--and 
Professor Feinerman, if you as well--had a view on what exactly 
is the concept of the rule of law among the Chinese people? Is 
there diversity of views across the various sectors? In your 
experience, have you noticed any distinction in attitudes 
toward rule of law among those people that you interact with--
intellectuals, lawyers, state officials, or others--who have 
studied other legal systems outside the Chinese legal system?
    Mr. Peerenboom. One thing that is striking is that there is 
almost universal support for a thin notion of rule of law. 
Basically, everybody sees a functional legal system as in their 
interest. The only groups or individuals who do not see that as 
being in their interest are those that are only able to survive 
based on their connections. They couldn't survive in a free, 
competitive marketplace, or in a legal system that implemented 
the rules fairly. Of course, some of those groups are very 
important politically, and so they could stand in the way of 
rule of law reforms.
    Nonetheless, the general view among most Chinese citizens, 
as indicated by polls, is overwhelming support of rule of law. 
What is interesting is that this result is in dramatic contrast 
with the same questions about democracy. When asked the same 
things about democracy, many people are much more ambivalent, 
and are willing to sacrifice it for economic development and so 
on, or the need for social stability.
    So I think there is widespread agreement among academics, 
government officials, and citizens about both the meaning of a 
thin rule of law and the desirability of it. Beyond that, you 
then get into these larger socio-political philosophies. The 
government sees things more in the line of a state socialist 
version of rule of law. They see a large role for the Party. 
They see the Party as playing a valuable role in leading 
society and maintaining social stability. Even some of the 
people who don't particularly believe in socialism as an 
ideology anymore, nonetheless, still see the Party as playing a 
valuable role given the lack of other viable alternatives.
    There is often more support in China for the current regime 
than is expected. When you look at the polling evidence, it is 
actually surprising how many people support the current regime. 
Even if they don't like it, they still support it for 
delivering social stability, having delivered economic 
development, and perhaps being better than the existing 
alternatives.
    That said, there are these other schools of thought, 
particularly, as I said, some soft authoritarians who basically 
see the Party as an outdated institution and single-party 
socialism as a obstacle to further development. They see the 
growing gap between economic reforms and political reforms as 
the major obstacle for China. So, they are advocating a 
transition from single party socialism to something else, and 
changing the role of the Party, perhaps from a socialist party 
to a social democratic party and so on.
    Now, that is obviously a major political issue that is 
going to meet with opposition among members of the Communist 
Party. The neoauthoritarians themselves are criticized roundly 
for being anti-democratic and being elitist by the people that 
see democracy now or later as a good thing. So there is that 
other school of thought, the communitarian one that does 
support democracy, either now or in the future, and rejects 
soft authoritarianism, and rejects the Singapore model as what 
is right for China.
    Within the so-called liberal democrats--and again, one of 
the problems with that term is, when people say ``liberal 
democrats'' in China, that often means ``reformer.'' They are 
not really liberal democrats. Scratch beneath the surface on 
most of these social issues, and they turn out to be quite 
conservative, much more communitarian, much more old school 
Confucian, than liberals. They are certainly not the kind of 
liberals that we think of when we think about these social 
issues.
    But within that school of liberal democrats, you also see a 
range from libertarians who basically want a limited role for 
government and economic reforms that are market oriented, with 
greater emphasis on property rights, but not necessarily a very 
big state in promoting social welfare. You then see classic 
liberals who favor a minimal state. And then you see social 
welfare liberals. So, you see the whole range of political 
views in China. That's one of the things that's very 
interesting.
    Again, you don't get much information about these different 
views, but if you read the literature, if you look at some of 
the polling data, you can see there is actually quite a 
variety, quite a range and diversity.
    Mr. Feinerman. I would, of course, generally defer to 
Professor Peerenboom on this because he has written the book, 
literally, about this topic. This topic has been a lot of his 
scholarly career, researching and writing about it. But, I 
would just add a couple of things.
    One, I think that there is a great understanding, at least 
in the academic and elite circles of the competing versions of 
the rule of law. Everyone may subscribe to his or her own 
preferred version, but even in the terminology, the 
terminological changes that have happened in China in the last 
decade or so, you can see subtle shifts. They show what the 
state wants to promote, what people think the alternatives are.
    Starting decades ago, there was the understanding of the 
difference between rule of law and rule of man. And even 
understanding what the difference was between the rule of law 
and the rule by law. Chinese language has had a term almost 
since the original Western idea of Rechtsstaat, that we 
translate as ``rule of law'' in English, created this 
conception at the end of the 19th century. It is different than 
the one that's used in everyday parlance to talk about the rule 
of law; the academics can make those separations.
    Then when the government began pushing for the rule of law 
and even amended the Constitution in 1999, they put that term 
in there, although the Constitution had been in force for 
almost 20 years before it was amended. You might wonder what a 
constitution that didn't have rule of law was supposed to be 
about.
    But, when they put this phrase in, they used this 
formulation that had been adopted by the ideological 
masterminds behind the Jiang Zemin regime. And it is an 
interesting formulation in Chinese. It is neither of the 
traditional terms, but it is a four character phrase, ``yi fa 
zhi guo,'' which can be translated as ``a country ruled by 
law.'' And that nomenclature shows the kind of way-station that 
many Chinese feel they are in right now.
    They don't have the Rechtsstaat kind of rule of law, but 
they understand that the conception has got to be somewhat 
thicker, or deeper, than the idea of just ``ruled by law,'' 
which, of course, can be abused by authoritarian rulers. I 
mean, Hitler's Germany had rule by law, but no one would claim 
that it was a Rechtsstaat. As a result, there is a pretty 
sophisticated understanding that you've got to thread the 
needle somehow. You've got to get between this conception that 
is too easily dismissed and not really effective in doing the 
things that you hope a rule of law will do, and yet not go too 
far out on a limb to promise things that I think most 
specialists who observe China would say, probably can't be 
delivered by the current society or regime. That sets up 
expectations that are bound to be disappointed and cause even 
greater social turmoil.
    Just one last thing I would say, and here I am pretty sure 
that I agree with Professor Peerenboom, that one of the things 
that ordinary Chinese, I mean the taxi drivers that all 
visitors to China--that can speak Chinese, at least--talk to, 
tell you that they fear almost more than anything, and 
certainly more than the loss of the rule of by law, is chaos. 
Fear of chaos in Chinese is ``pa luan.'' Or, more precisely, 
``I am worried about turmoil.'' Given the recent 
political history of China over the past 50 or so years, it is 
understandable that they feel that way, and also that they feel 
that in the last 20-some years there has been a remarkable 
period of stability--punctuated, of course, by some unfortunate 
moments, such as in the spring of 1989--nonetheless, anything 
that might jeopardize that is really something that they fear 
more than maybe having the enjoyment in the future of some 
rights that are yet undefined, and they don't want to risk 
that. They don't want to risk the economic improvement that 
they have seen in their lives. They don't want to risk the 
relative personal freedom that they have been able to enjoy, 
partly due to the indirect effect of the rule of law, including 
marketization of the economy.
    And so, if that's the choice that anyone has to make, I 
think it goes to this point about democratization, that they 
are worried. They look at television, for example, and see the 
debates in the Legislative Yuan in Taiwan, and see one member 
breaking a chair over another member's head, and say, ``If that 
is democratization, I don't want that.'' They are less 
familiar, because of the language gap, of the more polite kind 
of verbal jousting that goes on here or in the British 
Parliament. But, they have understandable reluctance to get too 
far ahead of the curve.
    Mr. Foarde. Let's take one last question from Alison 
Pascale.
    Ms. Pascale. Professor Peerenboom, you had mentioned in 
your testimony that China is planning to adopt nonliberal rule 
of law, and that legal reform still can impose limits on 
authoritarian governments. I would be interested, if you could 
give some examples of some limits that you have seen imposed.
    Mr. Peerenboom. Well, I think first of all, it is clear 
that lower-level governments are now restrained by legal rules 
in a way that they weren't in the past, because of the 
Administrative Litigation Law, and all of the other 
administrative checks and legal mechanisms for challenging 
government actions through the administrative system.
    That is consistent with and, indeed, intended by the 
central government, because the government wants the lower-
level governments to follow central government rules. So, when 
they don't, they are more than happy that ordinary citizens 
challenge them. Still, that is an improvement for the citizens, 
because before they were often subject to local warlords, 
essentially cadres who more or less did what they wanted. Now, 
they are clearly being limited by 
administrative laws.
    There are many other instances where the creation of a 
legal system has simply facilitated actions by citizens. Where 
before you would have to befriend the government to do 
something, now you simply go down and register to get your 
company going, or now you have a technology license, you don't 
even have to go down, you can register on-line on the Web. So, 
there are many ways in which the legal system has made life 
much easier for citizens and has effected change, even within 
the constraints of an authoritarian government.
    Also, the participation in the legal process itself has 
changed greatly. Under the new law and legislation, there are 
now requirements for hearings and making major laws publicly 
available. So, that gives citizens some ability to have some 
impact--marginal to be sure, but nonetheless some input into 
the lawmaking process. There is an Administrative Procedure Law 
that is being developed, same sort of thing. It will allow 
citizens to have some say in a regulation before it is drafted.
    Now the WTO requires comment before a regulation comes in 
effect--so the regulation has already been drafted, and it has 
already been promulgated, but before it becomes effective. It 
gives interested parties a chance to offer some comments. The 
Administrative Procedure Law will go beyond that, by giving 
citizens opportunities to participate before a new law or 
regulation is actually drafted and promulgated.
    Finally, I would just say that in general there is this 
notion of ``yi fa zhi guo,'' or ``ruling the country according 
to law.'' I think it is very important to realize that the 
Chinese have accepted the idea that the government is supposed 
to act according to law. That it is not just that anybody can, 
or any government official can tell you what to do and you have 
to do it. Nor can the government rely on policy instruments. 
The government has to now issue regulations through a formal 
process, and that is what all government officials have to rely 
on. If they are relying on policy, rather than laws, they can 
be challenged.
    So that notion of ``yi fa zhi guo'' or ruling the country 
according to law was a significant conceptual breakthrough, 
because when they were discussing this phrase they had a choice 
between two words in Chinese, using different characters with 
the sound yi. The second one actually means to use law to 
govern. And they rejected that. They chose the one that said 
rule according to law, which means the law is there, and you 
have to rule according to it. You don't just use law. That's 
the Rechtsstaat, that's the rule by law concept of the old 
days. You simply used law as another policy or another 
instrument for managing the state.
    And now it is not the case. By choosing that other term, 
government officials have to act according to law. That means 
they have accepted, at least conceptually, the idea that their 
behavior has to conform to pre-established standards. So all of 
that is for the good. Of course, that's the theory, and there 
is still the gap between law and implementation that we've 
talked about. All of that needs strengthening of institutions 
to change.
    Mr. Feinerman. The only thing that I would add is that I 
think there is still the problem in two respects. One, the 
Communist Party, which we haven't really talked about this 
afternoon, and the fact that the government may be one thing, 
but the Party still remains another. As someone said over two 
decades ago, the Communist Party in China controlled everything 
except itself. It also still sees itself as above the law, but 
this is a hotly contested point that has been much discussed in 
China.
    I think many Chinese Communist Party officials will tell 
you that they think the Party now also has to conduct itself 
according to law. But until everyone, including the top 
leadership, agrees with that, that's a problem. And there still 
is an instrumental use of the rule of law, although I would 
agree that it is moving toward a more robust concept. When you 
see the explanations, for example, about the ``Strike Hard'' 
campaigns, that ``this is all lawful,'' it means that ``we have 
the law in place and we needed to make the law somehow 
susceptible to even harsher enforcement, so we temporarily 
change the law.'' So everything that is being done is being 
done according to law. But that kind of situational flexibility 
is at odds with, at least, the modern Western conceptions of a 
Rechtsstaat. To be fair, this happens in societies all around 
the world. It's not just a peculiarity of the Chinese system. 
But, it is, perhaps, not as recognized as a deviation as it 
probably should be.
    Mr. Foarde. We have reached the end of our time this 
afternoon, and I want to thank all three of our panelists, Raj 
Purohit who had to leave us a few minutes ago; Randy 
Peerenboom, thanks for coming all the way from Los Angeles to 
talk to us--you should have brought us better weather--and to 
Jim Feinerman who is here in town and who we rely on often for 
his wisdom and insight.
    Our next issues roundtable will be next Monday afternoon, 
April 7, at 2:30 p.m. in this room. It will be about Tibet and 
the future of the Tibetan language, with three distinguished 
panelists as well. So, I hope that you will be able to join us 
next week for that roundtable. We will have more information 
soon about issues roundtables and hearings later in the spring.
    With that, let me gavel this particular issues roundtable 
to a close with thanks to all who came, thanks to our staff 
panel, and to our panelists. Good afternoon.
    [Whereupon, at 4:05 p.m. the roundtable was concluded.]

                            A P P E N D I X

=======================================================================

                           Prepared Statement

                              ----------                              

              Prepared Statement of Randall Peerenboom\1\

                             april 1, 2003

What's a Liberal to Do? The Pursuit of Non-liberal Rule of Law in China

    I am very pleased to be here today. In these times of international 
conflict, the necessity of developing a positive, peaceful and mutually 
beneficial relationship with such a geopolitically important country as 
China is readily apparent. However, if the U.S. and other countries are 
to play a role in helping China become a responsible member of the 
international community that, despite differences from time to time, 
can work with rather than against the U.S., then we in the U.S. must 
have an accurate understanding of how China sees its role in the world 
and the challenges that China faces in its efforts to modernize. 
Nowhere is this need for understanding more apparent than with respect 
to the implementation of rule of law, a notoriously contested concept 
here in the U.S. and around the world. Let me begin then by defining 
some terms in order to clarify areas of agreement and disagreement.
---------------------------------------------------------------------------
    \1\ Author's Biographical Note: Randall Peerenboom obtained a B.A. 
in Philosophy, M.A. in Chinese Religion and Ph.D. in Philosophy before 
obtaining a J.D. from Columbia Law School. He has written more than 60 
articles and several books on Chinese law and philosophy. From 1994 to 
1998, he practiced law with a major international law firm in Beijing. 
He currently teaches Chinese law and international human rights at the 
University of California Los Angeles. In addition to advising on 
various aspects of foreign investment in China, he often serves as an 
expert witness on PRC legal issues and is Of Counsel at Yiwen Law Firm.
    Recent publications include: China's Long March Toward Rule of Law 
(Cambridge University Press, 2002); Beyond Universalism and Relativism: 
The Evolving Debates about ``Values in Asia'' (forthcoming Indiana 
International and Comparative Law Review 2003); The X-Files: Past and 
Present Portrayals of China's Alien ``Legal System,'' 2 Global Studies 
Law Review (2003); Social Networks, Civil Society, Democracy and Rule 
of Law: A New Conceptual Framework, in The Politics of Relationality: 
Civil Society, Economics, and Law in East Asia, Hahm Chaihark, Daniel 
Bell & Hahm Chaebong, eds., (forthcoming Rowman & Littlefield, 2003); 
Social Networks, Rule of Law and Economic Growth in China: The Elusive 
Pursuit of the Right Combination of Public and Private Ordering, 31:2 
Global Economic Review (2002) ; Globalism, Path Dependency and the 
Limits of Law: Administrative Law Reform and the Rule of Law in the 
PRC, Berkeley J Intl Law (2001); Seek Truth from Facts: An Empirical 
Study of Enforcement of Arbitral Awards in the PRC, American J 
Comparative Law (2001); The Limits of Irony: Rorty and the China 
Challenge, 50 Philosophy East & West (2000); Human Rights and Asian 
Values: The Limits of Universalism, China Review International (2000); 
Ruling the Country in Accordance with Law: Reflections on the Rule and 
Role of Law in China, 11 Cultural Dynamics 315-51 (1999); Lawyers in 
China: Obstacles to Independence and the Defense of Rights (Lawyers 
Committee on Human Rights, 1998); Confucian Harmony and Freedom of 
Thought: Right Thinking Versus the Right to Think, in Confucianism and 
Human Rights 234-260 (edited by Wm. de Bary & Tu Weiming, New York: 
Columbia Univ. Press, 1998).
---------------------------------------------------------------------------

                       1. THICK AND THIN THEORIES

    Rule of law is an essentially contested concept. It means different 
things to different people, and has served a wide variety of political 
agendas from Hayekian libertarianism to Rawlsian social welfare 
liberalism to Lee Kuan Yew's soft authoritarianism to Jiang Zemin's 
statist socialism. That is both its strength and its weakness. That 
people of vastly different political persuasions all want to take 
advantage of the rhetorical power of rule of law keeps it alive in 
public discourse, but it also leads to the worry that it has become a 
meaningless slogan devoid of any determinative content.
    The fact that there is room for debate about the proper 
interpretation of rule of law should not blind us to the broad 
consensus as to its core meaning and basic elements. At its most basic, 
rule of law refers to 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. In contrast, states that rely on law to govern 
but do not accept the basic requirement that law bind the State and 
State actors are best described as a rule by law or Rechtsstaat.\2\
---------------------------------------------------------------------------
    \2\ As with rule of law, Rechtsstaat has been interpreted in 
various ways. While some interpret it in more instrumental terms 
similar to rule by law, others would argue that the concept entailed at 
minimum the principle of legality and a commitment on the part of the 
State to promote liberty and protect property rights, and thus some 
limits on the state. In any event, the concept Rechtsstaat has evolved 
over time in Europe to incorporate democracy and fundamental rights. 
Accordingly, it is often now used synonymously with (liberal 
democratic) rule of law.
---------------------------------------------------------------------------
    Conceptions of rule of law generally come in two varieties. A thin 
conception stresses the formal or instrumental aspects of rule of law-
those features that any legal system allegedly must possess to function 
effectively as a system of laws, regardless of whether the legal system 
is part of a democratic or non-democratic society, capitalist or 
socialist, liberal or theocratic. Although proponents of thin 
conceptions of rule of law define it in slightly different ways, there 
is considerable common ground. The key features are that there must be 
rules for lawmaking and laws must be made in accordance with such rules 
(including by the courts through precedent) to be valid; laws must be 
general, public, prospective, relatively clear, consistent, stable, 
impartially applied and enforced so that the gap between law and 
practice is relatively small.
    There is general agreement not only about these criteria, but that 
these criteria cannot be perfectly realized, and may even in some cases 
be in tension with each other. While marginal deviations are 
acceptable, legal systems that fall far short are likely to be 
dysfunctional. Of course, a thin theory requires more than just these 
elements. A fully articulated thin theory would also specify the goals 
and purposes of the system as well as its institutions, rules, 
practices and outcomes.
    Typical candidates for the more limited normative purposes served 
by thin theories of rule of law include: (i) ensuring stability, and 
preventing anarchy and Hobbesian war of all against all; (ii) securing 
government in accordance with law by limiting arbitrariness on the part 
of the government; (iii) enhancing predictability, which allows people 
to plan their affairs and hence promotes both individual freedom and 
economic development; (iv) providing a fair mechanism for the 
resolution of disputes; and (v) bolstering the legitimacy of the 
government. States may agree on these broad goals and yet interpret or 
weigh them differently, leading to significant variations in their 
legal regimes. For instance, a greater emphasis on stability rather 
than individual freedom may result in some states limiting civil 
society, freedom of association and speech. Moreover, in periods of 
rapid economic or social transformation, some of these goals, such as 
predictability, may be sacrificed for other important social values.
    A variety of institutions and processes are also required. The 
promulgation of law assumes a legislature and the government machinery 
necessary to make the laws publicly available. Congruence of laws on 
the books and actual practice assumes institutions for implementing and 
enforcing laws. While informal means of enforcing laws may be possible 
in some contexts, modern societies must also rely on formal means such 
as courts and administrative bodies. Furthermore, if the law is to 
guide behavior and provide certainty and predictability, laws must be 
applied and enforced in a reasonable way that does not defeat people's 
expectations. This implies normative and practical limits on the 
decisionmakers who interpret and apply the laws and principles of due 
process or natural justice such as access to impartial tribunals, a 
chance to present evidence and rules of evidence. One must also look 
beyond the traditional branches of government to the legal profession, 
civil society, private actors who increasingly take on government 
functions, and the military, which in many countries continues to be a 
force capable of undermining the legal system and rule of law.
    In contrast to thin conceptions, thick or substantive conceptions 
begin with the basic elements of a thin conception of rule of law but 
then incorporate elements of political morality such as particular 
economic arrangements (free-market capitalism, central planning, etc.), 
forms of government (democratic, single party socialism, etc.) or 
conceptions of human rights (liberal, communitarian, ``Asian Values,'' 
etc.). Thick theories of rule of law can be further subdivided 
according to the particular substantive elements that are favored. The 
four most common conceptions in China: statist socialist, neo-
authoritarian, communitarian or collectivist or liberal democratic.
    We in the U.S. are most familiar with the Liberal Democratic 
version of rule of law favored in modern Western states.\3\ Liberal 
democratic rule of law incorporates free market capitalism (subject to 
qualifications that would allow various degrees of ``legitimate'' 
government regulation of the market), multiparty democracy in which 
citizens may choose their representatives at all levels of government, 
and a liberal interpretation of human rights that gives priority to 
civil and political rights over economic, social, cultural and 
collective or group rights.
---------------------------------------------------------------------------
    \3\ The tendency to equate rule of law with liberal democratic rule 
of law has led some Asian commentators to portray the attempts of 
Western governments and international organizations such as the World 
Bank and IMF to promote rule of law in Asian countries as a form of 
economic, cultural, political and legal hegemony. Critics claim that 
liberal democratic rule of law is excessively individualist in its 
orientation and privileges individual autonomy and rights over duties 
and obligations to others, the interests of society, and social 
solidarity and harmony. This line of criticism taps into recent, often 
heavily politicized, debates about ``Asian values,'' and whether 
democratic or authoritarian regimes are more likely to ensure social 
stability and economic growth. It also taps into post-colonial 
discourses and conflicts between developed and developing states, and 
within developing states between the haves and have-nots over issues of 
distributive justice. In several countries, arguably in all countries, 
it has resulted in an attempt to inject local values into a legal 
system established by foreign powers during colonial occupation or 
largely based on foreign transplants. See Carol Rose, 'The New Law and 
Development Movement in the Post-cold war Era: A Viet Nam Case Study', 
Law & Society Review, vol.32 (1998), p.93; Barry Hager, 'The Rule of 
Law', in The Mansfield Center for Pacific Affairs, ed., The Rule of 
Law: Perspectives from the Pacific Rim /www.mcpa.org/rol/
perspectives.htm> (summarizing complaints of critics). Takashi 
Oshimura, 'In Defense of Asian Colors', in Mansfield Center, Rule of 
Law, at p.141; (claiming that the individualist orientation of [liberal 
democratic] rule of law is at odds with Confucianism and ``the 
communitarian philosophy in Asia''). See also Joon-Hyung Hong, 'The 
Rule of Law and Its Acceptance in Asia', in id. at p.149 (noting the 
need to define rule of law in a way that is acceptable to those who 
believe in ``Asian values''). Randall Peerenboom, 'Beyond Universalism 
and Relativism: The Evolving Debates about ``Values in Asia,''' Indiana 
Int'l & Comp. L. Rev. 2003.
---------------------------------------------------------------------------
    In contrast, Jiang Zemin and other Statist Socialists endorse a 
state-centered socialist rule of law defined by, inter alia, a 
socialist form of economy, which in today's China means an increasingly 
market-based economy but one in which public ownership still plays a 
somewhat larger role than in other market economies; a non-democratic 
system in which the Party plays a leading role; and an interpretation 
of rights that emphasizes stability, collective rights over individual 
rights and subsistence as the basic right rather than civil and 
political rights.
    There is also support for various forms of rule of law that fall 
between the Statist Socialism type championed by Jiang Zemin and other 
central leaders and the Liberal Democratic version preferred in Western 
states. For example, there is some support for a democratic but non-
liberal (``Asian Values'' or New Confucian) Communitarian variant built 
on market capitalism, perhaps with a somewhat greater degree of 
government intervention than in the liberal version; some genuine form 
of multiparty democracy in which citizens choose their representatives 
at all levels of government; plus an ``Asian Values'' or communitarian 
interpretation of rights that attaches relatively greater weight to the 
interests of the majority and collective rights as opposed to the civil 
and political rights of individuals. Japan's legal system, particularly 
in the criminal law area, arguably is an example of a collectivist or 
communitarian rule of law system.
    Another variant is a Neo-authoritarian or Soft Authoritarian form 
of rule of law that like the Communitarian version rejects a liberal 
interpretation of rights but unlike its Communitarian cousin also 
rejects democracy. Whereas Communitarians adopt a genuine multiparty 
democracy in which citizens choose their representatives at all levels 
of government, Neo-authoritarians permit democracy only at lower levels 
of government or not at all. For instance, Pan Wei, a prominent Beijing 
University political scientist, has advocated a ``consultative rule of 
law'' that eschews democracy in favor of single party rule, albeit with 
a redefined role for the Party, and more extensive, but still limited, 
freedoms of speech, press, assembly and association. One can get a 
better sense of what a soft authoritarian rule of law legal system in 
China might look like by considering the legal systems in Hong Kong, 
Malaysia and Singapore.\4\
---------------------------------------------------------------------------
    \4\ See Peerenboom, Varieties of Rule of Law: An Introduction and 
Provisional Conclusion, and the chapters on these countries, in Asian 
Discourses of Rule of Law: Theories and Implementation of Rule of Law 
in Twelve Asian Countries with Comparisons with France and the U.S.A. 
(forthcoming RoutledgeCurzon, 2003).
---------------------------------------------------------------------------
    A full elaboration of any of these types requires a more detailed 
account of the purposes or goals the regime is intended to serve and 
its institutions, practices, rules and outcomes, which I provide in my 
recently published book China's Long March Toward Rule of Law.\5\
---------------------------------------------------------------------------
    \5\ See also Table 1 summarizing some of the key differences.
---------------------------------------------------------------------------
    Nevertheless, this preliminary sketch is sufficient to make the 
following points. First, despite considerable variation, all forms 
accept the basic benchmark that law must impose meaningful limits on 
the ruler and all are compatible with a thin conception of rule of law. 
Put differently, any thick conception of rule of law must meet the more 
minimal threshold criteria of a thin conception. Predictably, as legal 
reforms have progressed in China, the legal system has converged in 
many respects with the legal systems of well-developed countries; and 
it is likely to continue to converge in the future.
    Second, at the same time, there will inevitably be some variations 
in rule of law regimes even with respect to the basic requirements of a 
thin conception due to the context in which they are embedded. For 
example, administrative law regimes will differ in the degree of 
discretion afforded government officials and the mechanisms for 
preventing abuse of discretion. Judicial independence will also differ 
in degree and in the institutional arrangements and practices to 
achieve it. And differences in fundamental normative values will lead 
to divergent rules and outcomes.
    Hence signs of both divergence from and convergence with the legal 
systems of well-developed countries are to be expected. Indeed, whether 
one finds convergence or divergence depends to a large extent on the 
particular indicators that one chooses, the timeframe and the degree of 
abstraction or focus. The closer one looks, the more likely one is to 
find divergence. But that is a natural result of narrowing the focus.
    Third, when claiming that China lacks rule of law, many Western 
commentators frequently mean that China lacks the Liberal Democratic 
form found primarily in modern Western states with a well-developed 
market economy, and indeed with the particular common law variant found 
in the U.S. Although a handful of isolated legal scholars and political 
scientists in China or living in exile abroad have advocated a Western-
style Liberal Democratic rule of law, there is little support for 
liberal democracy, and hence a Liberal Democratic rule of law, among 
State leaders, legal scholars, intellectuals or the general public.
    Accordingly, if we are to understand the likely path of development 
of China's system, and the reasons for differences in its institutions, 
rules, practices and outcomes in particular cases, we need to rethink 
rule of law. We need to theorize rule of law in ways that do not assume 
a Western liberal democratic framework, and explore alternative 
conceptions of rule of law that are consistent with China's own 
circumstances. While the three alternatives to a Liberal Democratic 
rule of law each differ in significant ways-particularly with respect 
to the role of law as a means of strengthening the State versus 
limiting the state-they nevertheless share many features that set them 
apart from their liberal democratic counterpart.
    Fourth, assuming as seems likely that China will ultimately 
implement some version of rule of law, the realization of rule of law 
in any form will require significant changes to the present system.
    Finally, it bears noting thin and thick conceptions are analytical 
tools. It is not a question of one being the right way to conceive rule 
of law and the other wrong. They have different advantages and 
disadvantages, and serve different purposes. Thin conceptions highlight 
certain features and purposes of a legal system. Even a more limited 
thin rule of law has many important virtues. At minimum, it promises 
some degree of predictability and some limitation on arbitrariness and 
hence some protection of individual rights and freedoms. While the 
notion of legality may seem like all too thin a normative reed in cases 
where the laws themselves are morally objectionable, even the harshest 
critics of rule of law acknowledge that getting government actors to 
act in accordance with, and to abide by, the laws is no small 
achievement. Certainly dissidents rotting away in jail after being 
denied the right to a fair trial and other procedural protections 
appreciate the importance of even a thin rule of law. Similarly, 
business people and the average citizen alike appreciate a legal system 
in which laws do not change daily and are regularly applied in a fair 
manner by competent administrators and judges free from corruption. By 
narrowing the focus, a thin theory highlights the importance of these 
virtues of rule of law.
    Conversely, because thick theories are based on more comprehensive 
social and political philosophies, rule of law loses its 
distinctiveness and gets swallowed up in the larger normative merits or 
demerits of the particular social and political philosophy. As Joseph 
Raz observes, ``If rule of law is the rule of the good law then to 
explain its nature is to propound a complete social philosophy. But if 
so the term lacks any useful function. We have no need to be converted 
to the rule of law just in order to believe that good should triumph. A 
non-democratic legal system, based on the denial of human rights, of 
extensive poverty, on racial segregation, sexual inequalities, and 
religious persecution may, in principle, conform to the requirements of 
the rule of law better than any of the legal systems of the more 
enlightened Western democracies.''
    As a practical matter, much of the moral force behind rule of law 
and its enduring importance as a political ideal today is predicated on 
the ability to use rule of law as a benchmark to condemn or praise 
particular rules, decisions, practices and legal systems. But all too 
often, rule of law is simply invoked to criticize whatever law, 
practice or outcome does not coincide with one's own political beliefs. 
For example, liberal critics take China to task for imposing limits on 
labor unions, restricting the right of peaceful demonstration by 
requiring prior registration, and imposing content-based restrictions 
on Falungong. Contrast such complaints with the following. A law 
provides that contractors must have 5 years of experience and meet 
various other requirements to obtain a license; nevertheless, a 
government official denies a license to a contractor who meets all of 
the requirements, and a court refuses to overturn the decision because 
local courts are funded by the local government. Two government 
agencies issue conflicting regulations, and there is no effective legal 
mechanism to sort out the conflict. A suspect is entitled to legal 
counsel according to law, but in practice the authorities refuse to 
allow him to contact his lawyer. Your dispute with your insurance 
company regarding payment for hospital bills incurred as a result of a 
car accident remains pending in court after 7 years due to judicial 
inefficiency. The rich and powerful are regularly exempted from 
prosecution of certain laws whereas others are prosecuted in similar 
circumstances. The first set of issues involve differences in 
substantive normative beliefs and political philosophies of the type 
that differentiate advocates of competing thick conceptions of rule of 
law; the second set of issues points to failures captured by a thin 
conception of rule of law, for which there is widespread support in 
China.
    Distinguishing between thin and thick theories makes it possible to 
use rule of law more effectively as a benchmark for evaluating legal 
systems by clarifying the nature of the problem. China is still in the 
process of establishing a functional legal system. Its legal system is 
plagued by thin rule of law issues such as weak legal institutions, 
incompetent and corrupt administrative officials and judges, excessive 
delays, and limitations on access to justice including high court costs 
(relative to the resources of many) and the lack of legal aid. These 
kinds of problems are qualitatively different than more political 
issues such as how broad free speech or freedom of association should 
be, or whether labor should have the right to form unions and strike. 
Obviously, these latter issues are tremendously important and deserve 
to be discussed. But whether the most effective way to do so is by 
riding into battle hoisting the banner of rule of law is debatable. 
When invoked by parties on both sides of an issue to support 
diametrically opposed results, rule of law quickly becomes conceptually 
overburdened and unstable.
    A thin theory therefore facilitates focused and productive 
discussion of certain legal issues among persons of different political 
persuasions. Being able to narrow the scope of the discussion and avoid 
getting bogged down in larger issues of political morality is 
particularly important in cross-cultural dialog. Criticisms of a legal 
system in a country such as China that point out the many ways in which 
the system falls short of a liberal interpretation of rule of law are 
likely to fall on deaf ears and may indeed produce a backlash that 
undermines support for rule of law, and thus, ironically, impede 
reforms favored by liberals. Conversely, criticisms are more likely to 
be taken seriously and result in actual change given a shared 
understanding of rule of law. To the extent that there is common ground 
and agreement on at least some features of a thin theory of rule of 
law, parties can set aside their political differences and focus on 
concrete reforms. For instance, the U.S. and China, notwithstanding the 
U.S.'s liberal democratic conception of rule of law and the Chinese 
government's statist socialist conception, have been able to agree on a 
wide range of reforms to improve the PRC legal system, including 
judicial exchange and training programs aimed at improving the quality 
of PRC judges; programs to assist in the development of a legal aid 
system; exchanges to strengthen the securities regulatory system and 
the administrative law system; seminars on electronic commerce, 
corporate law and the enforcement of arbitral awards and court 
judgments; and even a symposium to discuss the legal aspects of 
protecting human rights, including issues such as China's legal 
responsibilities under international rights agreements, the rights of 
criminal defendants and the legal protection of religious freedom.
    There are then many opportunities for cooperation within the 
existing framework. But should liberals support legal reforms aimed at 
non-liberal ends?

2. SHOULD LIBERAL DEMOCRATS SUPPORT LEGAL REFORMS AIMED AT NON-LIBERAL 
                              RULE OF LAW?

    Early law and development movement of the 1960s and 1970s 
maintained the evolutionary thesis that legal reform would inevitably 
lead to economic growth, which would in turn lead to liberal democracy 
once a middle class arose. This thesis was not borne out in practice in 
all cases. Many states failed to develop economically, or even if they 
did, some remained authoritarian. In fact, in the absence of political 
pluralism and opportunities for participation in government, a stronger 
legal system at times strengthened the hand of authoritarian regimes.
    Some thirty odd years later, it is generally clear that a legal 
system that complies with thin rule of law is required for sustained 
economic growth.\6\ What is less clear is that economic growth and rule 
of law will lead to democracy and a liberal interpretation of human 
rights. The notion that economic growth and liberal democracy need not 
go together was one of the central issues in the Asian values debate, 
which while overly polemicized did raise serious questions about the 
relationship between law (and in particular different thick conceptions 
of rule of law), economic development, and forms of political regime, 
and conceptions of rights. Thus, in Hong Kong, Singapore and Malaysia 
one finds well-developed legal systems that comply with a thin rule of 
law certainly in the commercial area and indeed with the exception of a 
few highly politicized cases in other areas of law as well. Yet soft-
authoritarian and collectivist or communitarian thick conceptions 
continue to prevail over liberal democratic conceptions.\7\
---------------------------------------------------------------------------
    \6\ For a summary of empirical surveys, see Peerenboom, China's 
Long March, chapter 10.
    \7\ In Singapore, the most vocal challenge to the government's view 
comes from liberals. But there is also a communitarian or collectivist 
perspective that seeks a middle ground between the more statist-
orientation of the government's soft authoritarianism and the excessive 
individualism of liberals. According to constitutional scholar Kevin 
Tan, Singaporean style communitarianism is an axiom of faith in 
governing nowadays, resulting in a premium being placed on national 
security, economic growth and nation-building. While ``legal rights are 
not trampled upon at will, in balancing the rights of the individual 
and community, the state-articulated concerns of public interests have 
gained precedence.'' Although Tan suggests that most of the support for 
communitarianism comes from political elites, he also allows that the 
community-based approach toward rights has acquired popular resonance 
in mainstream Singaporean society. Eugene KB Tan, ''WE' v 'I': 
Communitarian Legalism in Singapore', Australia Journal of Asian Law, 
vol.4 (2002), p.1.
---------------------------------------------------------------------------
    In the case of China, skeptics allege that the Party is simply 
acting strategically in accepting some limits on its power implicit in 
the notion of rule of law in order to strengthen its position. The Dean 
of Beijing University Law School Zhu Suli, for instance, has suggested 
that rule of law will promote economic development, which in turn will 
strengthen the Party-state both fiscally and in terms of legitimacy. A 
stronger Party may be better positioned to resist meaningful political 
reforms.
    There is no gainsaying the fact that the instrumental aspects of 
legal reforms may enhance the efficiency of authoritarian governments. 
In the absence of democracy and pluralist institutions for public 
participation in the lawmaking, interpretation and implementation 
processes, law may come to serve the interests of the State and the 
ruling elite (as it may even with democracy and pluralist 
institutions). It is possible therefore that rule of law will serve 
authoritarian ends in China. Of course, many within China reject 
democracy and believe that at present China needs an authoritarian 
government (whether socialist or not) to oversee economic reforms and 
maintain stability, though they disagree about just how hard or soft 
the authoritarian regime should be. Clearly, both Statist Socialists 
and Neo-authoritarians and even to some extent Communitarians see the 
potential of legal reforms to strengthen the State as a positive 
aspect. In the long run, however, Communitarians view rule of law as a 
means of limiting the State and a stepping stone toward democracy. 
Moreover, all expect law to impose some limits on the State and thus to 
mitigate to one degree or another the harshness of the rule by law 
authoritarian regime of the Mao era.
    While legal reforms could help Statist Socialists solidify their 
power and support a relatively hard authoritarianism, the dangers of 
the ruling regime misusing rule of law for its own authoritarian ends 
should not be overstated. As noted, even a Statist Socialist rule of 
law differs from instrumental rule by law in that law is not just a 
tool to be used by the ruling regime to control the people or promote 
the interests of the privileged few (of course law is a tool for 
enforcing State policies and ensuring social order everywhere). Rule of 
law entails limits on the State and the ruling elite (who are also 
bound by the law), provides a basis for challenges by citizens of 
government arbitrariness and serves to protect the rights and interests 
of the non-elite. It is striking that while critics in many developed 
countries have the luxury of belittling the concept of rule of law, 
those who have had the misfortune to suffer its absence appreciate its 
virtues and count among its biggest supporters.
    Moreover, the choice facing Chinese reformers is not 
authoritarianism or democracy, but authoritarianism with rule of law or 
without it. Authoritarianism in China is not the result of legal 
reforms to implement rule of law. On the contrary, the ruling regime 
would be even more authoritarian in the absence of legal reforms. Where 
legal rules are applied with principled consistency to both the State 
and its citizens, as required by rule of law, they generally restrain 
rather than expand the arbitrary exercise of State power. Further, as 
some PRC scholars have observed, while historically the development of 
rule of law has depended on promotion by the authorities, it also 
results in a change in the conception of authority. In the past, the 
Party's authority to rule was based to a considerable extent on the 
charisma of revolutionary leaders who fought off the Guomingdang and 
foreign oppressors and allowed China to regain its dignity and stand on 
its own two feet. However, with the death of the old guard, new leaders 
have had to base their authority on other grounds. To use Weber's 
terminology, implementation of rule of law entails greater reliance on 
formal rules by trained professionals rather than decisionmaking by 
charismatic individuals, and thus results in a transformation from 
charismatic to a more formal rational authority.
    Perhaps most important, in the long run, implementing rule of law 
usually will alter the balance of power between the state, society and 
individuals, while at the same time alterations in the balance of power 
resulting from economic reforms and factors beyond the legal system 
will create further pressure to implement rule of law. The 
establishment of a legal system with some degree of autonomy acts as a 
counterweight to political power and provides a basis for challenging 
State power. While a strong civil society is not inevitable, it is more 
likely in a State that implements rule of law than one that does not. A 
strong civil society is arguably more likely to seek and more likely to 
obtain political reforms aimed at further limiting the power of 
authoritarian states and increasing the power of society. Thus, even if 
the goal is democracy and protection of human rights, it makes sense to 
ensure at minimum that a thin rule of law is realized. A more likely 
result in China than a stronger authoritarian regime is that rule of 
law will be a force for liberalization and come to impose restraints on 
the rulers, as in Taiwan, South Korea and even Indonesia and Malaysia.

                   3. WHAT CAN LIBERAL DEMOCRATS DO?

    What can foreign governments, international development agencies 
and NGO's do to support and expedite the development of rule of law in 
China? First of all, it merits reiterating that the reform process will 
be driven primarily by domestic actors responding to domestic concerns. 
While foreign actors can play an important role in the process, they 
should bear in mind that rule of law is an ideology. Implementation of 
rule of law will directly challenge not only the Party but also other 
vested interests in society. It will alter the balance of power between 
the Party and the state, among State organs, and between the State and 
society. It will also lead to changes within society, and require a new 
cultural orientation that assigns a much higher place to reliance on 
universally applicable laws and dispute resolution by impartial and 
autonomous courts than in the past. What may seem on the surface to be 
merely technical suggestions for tinkering with legal rules or 
modifying institutions to cope with pressing commercial issues such as 
local protectionism frequently implicate much broader political and 
normative concerns.
    That said, taking a particular thick conception of rule of law as 
the basis for reforms raises more ideological issues than basing 
reforms on a thin version. By focusing on the more technical features 
of a functional legal system, a thin theory of rule of law increases 
the likelihood that people of fundamentally different political 
persuasions will be able to find sufficient common ground to carry out 
meaningful reforms of the legal system. Accordingly, governments, 
multilateral agencies and NGO's that are interested in taking advantage 
of whatever political space is available to pursue concrete legal 
reforms are more likely to be effective if they base their discussions 
with PRC authorities on the core elements of the thin version. Not 
surprisingly, many donor institutions such as the World Bank have 
chosen to emphasize the technical aspects of legal reforms rather than 
the broader normative dimensions and the potential of reforms to lead 
to social and political changes. To insist on first reaching agreement 
over which thick conception of rule of law is normatively superior 
would divert attention away from the significant virtues of even a thin 
rule of law and result in missed opportunities to realize concrete 
changes in the legal system that would significantly improve the 
quality of life for many PRC citizens.
    This is not to deny that issues such as democracy and human rights 
or the normative basis for laws are important. Rather, the point is 
simply to suggest that while such issues should be discussed, they need 
not be the focus of conversation every time legal reformers meet to 
consider how to improve China's legal system.
    In suggesting reforms or commenting on reform proposals then, 
foreign actors should be attuned to differences in ideology, values and 
institutions. For instance, China's legal institutions were modelled to 
a considerable extent on Germany's civil system via Japan. Rather than 
relying solely on the experiences and advice of American professors or 
lawyers, the U.S. Government or U.S.-based aid agencies should try to 
include on their team of legal reform advisors experts from around the 
world and in particular from Germany, France and Japan. Foreign actors 
should also make sure that they have sufficient local knowledge to 
ensure that their reforms proposals are appropriate and feasible given 
the current level of institutional development, existing cultural 
attitudes and the current political limits.
    Unfortunately, it is very difficult for most foreign actors to gain 
an accurate picture of what is happening in China and to assess what 
the possibilities for reform are, for a whole host of reasons including 
language barriers, lack of access and transparency, and the speed with 
which China is changing. Accordingly, there is a danger that the 
prescriptions offered by foreign experts will not be implementable. 
Many of the more successful reform initiatives have been bottom-up 
proposals from those in the trenches who are confronted with practical 
problems in their daily work. Although foreign actors frequently may 
not have sufficient local knowledge to propose context-specific 
solutions, they serve a useful purpose when they provide a menu of 
alternative approaches. They also play a valuable role in working with 
those in China to adapt approaches from the general menu to China's own 
circumstances or in bringing their own experiences to bear on proposals 
generated by those in China.
    At present, China's legal system is beset by a number of problems. 
As a result of more than a decade of feverish legislating, the legal 
framework is by and large in place, though work continues to pass 
important laws such as the Administrative Procedure Law and existing 
laws are constantly being revised. This process of amendment is likely 
to continue until China reaches a more stable social, political and 
economic equilibrium. Thus, there is ample opportunity for foreign 
parties to play a role as advisers in the legislative process.
    But the real work lies in institution building. Although there are 
still some gaps in the framework and loopholes in the existing laws, 
tinkering with doctrine or passing more laws and regulations alone will 
have little impact. At this point, the biggest obstacles to a law-based 
system in China are institutional and systemic in nature: a legislative 
system in disarray; a weak judiciary; poorly trained judges and 
lawyers; a low level of legal consciousness; a weak administrative law 
regime; the lack of a robust civil society; the enduring influence of 
paternalistic traditions and a culture of deference to government 
authority; rampant corruption; large regional variations; and the 
fallout from the unfinished transition from a centrally planned economy 
to a market economy, which has exacerbated central-local tensions and 
resulted in the fragmentation of authority.
    There is therefore much that needs to be done, and can be done, 
even within the existing political framework, which will continue to 
evolve over time. I have outlined a reform agenda in my book China's 
Long March toward Rule of Law, which includes specific reforms to 
address each of the major institutions: the legislative system, the 
judiciary, the legal profession, the administrative law regime and the 
role of the Party vis-`-vis the legal system. I have also attached a 
report summarizing various reform recommendations and issues. I would 
like to stress that much work also needs to be done to strengthen the 
procuracy (Chinese prosecutorial organ, also referred to as the 
procuratorate) and police. Indeed, the procuracy and police may be the 
two areas most in need of improvement. At least in the case of the 
procuracy the time seems ripe as the procuracy is now under the 
leadership of a reform-minded chief.
    More generally, the U.S. and other countries should seek to engage 
rather than contain China. The greater risk at present is not that a 
stronger China will oppose U.S. policies around the world but that a 
strategy of containment aimed at keeping China weak and subservient 
will strengthen the hand of hard-liners and slow reforms within China. 
The gravest threat to stability in China is the increasing discrepancy 
between the economic structure and political structure. The failure of 
political reforms to keep pace with economic reforms is the most likely 
path to regime collapse. Should the ruling regime collapse and China 
descend into chaos and perhaps even civil war, the consequences would 
reach far beyond China's own borders. For the sake of regional peace 
and global stability, the U.S. and other countries should seek ways to 
promote further reforms rather than seeking ways to contain China. The 
opportunities for engagement and for mutual benefit and learning are 
unlimited, provided all sides proceed with open minds.

                                       Table 1.--A Comparison of the Four Ideal Rule of Law Types Plus Rule by Law
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               Purposes of Rule      Institutions/
      Type of Legal System          Economic Regime    Political Regime         Rights              of Law             Practices             Rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Liberal Democratic Rule of Law..  Free market.......  Democratic          Liberal...........  Limited government  High degree of      Protection of
                                                       elections at all                                            separation          civil and
                                                       levels;.                                                    between law and     political rights;
                                                                                                                   politics.           no registration
                                                                                                                                       requirements for
                                                                                                                                       social groups;
                                                                                                                                       strong rights to
                                                                                                                                       protect accused
                                                                                                                                       in criminal
                                                                                                                                       cases.
                                  Minimum government  Neutral state.....  Emphasis on civil   Prevent government  Independent and
                                   interference and                        and political.      arbitrariness.      elected
                                   regulation.                                                                     legislature.
                                  Clear distinction   Limited state.....  Deontological view  Protect individual  Autonomous and
                                   between public                          of rights as        rights.             independent
                                   and private.                            antimajoritarian                        judiciary, with
                                                                           trump on social                         life tenure for
                                                                           good.                                   judges,
                                                                                                                   appointment and
                                                                                                                   removal
                                                                                                                   relatively non-
                                                                                                                   politicized.
                                  Administrative      Civil society as    Freedom privileged  Predictability and  Administrative
                                   discretion          independent of      over order.         certainty:          law: mechanisms
                                   limited.            state.                                  economic growth,    for reining in
                                                                                               allow individuals   discretion,
                                                                                               to plan affair.     capable of
                                                                                                                   holding even top
                                                                                                                   leaders
                                                                                                                   accountable;
                                                                                                                   public
                                                                                                                   participation;
                                                                                                                   public can hold
                                                                                                                   government
                                                                                                                   officials
                                                                                                                   accountable by
                                                                                                                   throwing
                                                                                                                   government out of
                                                                                                                   office.
                                                                          Autonomy over       Dispute             Independent legal
                                                                           social solidarity   resolution,         profession.
                                                                           and harmony.        protect property
                                                                                               rights largely
                                                                                               through formal
                                                                                               legal system.
                                                                          Freedom of thought  Government
                                                                           and right to        efficiency and
                                                                           think over need     rationality.
                                                                           for common ground
                                                                           and right
                                                                           thinking on
                                                                           important social
                                                                           issues.
                                                                          More attention to   Legitimacy........
                                                                           rights than
                                                                           character-
                                                                           building, virtues
                                                                           and duties.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chinese Communitarian Rule of     Market economy;     Democratic,         Communitarian.....  Balance between     Moderate to high    Broad laws to
 Law.                              Managed             multiparty                              law as means of     degree of           protect state:
                                   capitalism;.        elections.                              strengthening       separation          state secrets;
                                                                                               state and           between law and     endangering
                                                                                               limiting state.     politics.           state.
                                  More government     Reject neutral      Emphasis on         Stability.........  Independent and     Illiberal laws:
                                   intervention.       state.              indivisibility of                       elected             limit civil
                                                                           rights,                                 legislature.        society, freedom
                                                                           collective rights.                                          of expression:
                                                                                                                                       registration of
                                                                                                                                       social groups; or
                                                                                                                                       privilege group--
                                                                                                                                       no exclusion of
                                                                                                                                       tainted evidence.
                                  Public/private      Larger role for     Economic growth at  Prevent government  Autonomous and
                                   division not as     state.              expense of rights   arbitrariness.      independent
                                   clear.                                  (liberty                                judiciary, with
                                                                           tradeoff).                              life tenure for
                                                                                                                   judges,
                                                                                                                   appointment and
                                                                                                                   removal
                                                                                                                   relatively non-
                                                                                                                   politicized;
                                                                                                                   arguably likely
                                                                                                                   to decide cases
                                                                                                                   based on
                                                                                                                   substantive
                                                                                                                   agenda.
                                  More                Civil society, but  Utilitarian or      Protect individual  Administrative
                                   administrative      limits; groups      pragmatic           rights.             law: mechanisms
                                   discretion.         free to go own      conception of                           for reining in
                                                       way subject to      rights.                                 discretion,
                                                       general limits,                                             capable of
                                                       although some                                               holding even top
                                                       groups,                                                     leaders
                                                       particularly                                                accountable; but
                                                       commercial                                                  more deference to
                                                       associations, may                                           agencies in
                                                       still establish                                             policymaking,
                                                       corporatist or                                              emphasis on
                                                       clientelist                                                 efficient
                                                       relations with                                              government
                                                       government, but                                             balanced to some
                                                       soft or societal                                            extent by need to
                                                       form of                                                     protect
                                                       corporatism.                                                individual
                                                                                                                   rights;
                                                                                                                   opportunities for
                                                                                                                   public
                                                                                                                   participation in
                                                                                                                   rulemaking and
                                                                                                                   interpretation;
                                                                                                                   public can hold
                                                                                                                   accountable by
                                                                                                                   throwing out of
                                                                                                                   office.
                                                                          Stability and       Predictability and  Independent legal
                                                                           order privileged    certainty:          profession,
                                                                           over freedom.       economic growth,    though perhaps
                                                                                               allow individuals   monitored by
                                                                                               to plan affairs.    state agency such
                                                                                                                   as ministry of
                                                                                                                   justice.
                                                                          Social solidarity   Government
                                                                           and harmony as      efficiency and
                                                                           important if not    rationality.
                                                                           more so than
                                                                           autonomy.
                                                                          Freedom of thought  Dispute
                                                                           and right to        resolution,
                                                                           think limited by    property rights
                                                                           need for common     protected through
                                                                           ground and          formal and
                                                                           consensus on        informal
                                                                           important social    mechanisms, more
                                                                           issues.             reliance on
                                                                                               corporatist and
                                                                                               clientelist ties.
                                                                          Attention to        Legitimacy........
                                                                           character-
                                                                           building, virtues
                                                                           and duties as
                                                                           well as rights.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Neo-Authoritarian Rule of Law...  Market economy....  Single party rule,  ``Asian Values''    Balance between     Moderate            Broad laws to
                                                       No elections or     or communitarian.   law as means of     separation          protect state and
                                                       only at low level                       strengthening       between law and     social order:
                                                       or appearance of                        state and           politics.           state secrets
                                                       genuine elections                       limiting state                          law; endangering
                                                       but limits on                           favors                                  state interests.
                                                       opposition party.                       strengthening.
                                  Managed capitalism  Reject neutral      Emphasis on         Strengthen:         Legislature not     Illiberal laws:
                                                       state.              indivisibility of   Emphasis on         elected.            limit civil
                                                                           rights,             stability.                              society, freedom
                                                                           collective rights.                                          of expression:
                                                                                                                                       registration of
                                                                                                                                       social groups; or
                                                                                                                                       privilege group--
                                                                                                                                       no exclusion of
                                                                                                                                       tainted evidence.
                                  More government     Even larger role    Economic growth at  Predictability and  Judicial
                                   intervention.       for state.          expense of rights   certainty: mainly   independence may
                                                                           (liberty            for economic        or may not be
                                                                           tradeoff).          growth, less to     limited.
                                                                                               allow individuals
                                                                                               to plan affairs.
                                  Public/private      Civil society, but  Utilitarian or      Government          Administrative law
                                   division not as     limits, perhaps     pragmatic           efficiency and      system, capable
                                   clear.              corporatist or      conception of       rationality.        of checking
                                                       clientelist         rights.                                 government
                                                       relations with                                              officials,
                                                       government.                                                 professional
                                                                                                                   civil service;
                                                                                                                   more emphasis on
                                                                                                                   rational
                                                                                                                   government than
                                                                                                                   protecting
                                                                                                                   individuals; more
                                                                                                                   deference to
                                                                                                                   government in
                                                                                                                   policymaking;
                                                                                                                   opportunities for
                                                                                                                   public
                                                                                                                   participation and
                                                                                                                   monitoring.
                                  More                                    Stability and       Dispute             Legal profession
                                   administrative                          order privileged    resolution,         supervised by MOJ.
                                   discretion.                             over freedom.       property rights
                                                                                               protected through
                                                                                               formal and
                                                                                               informal
                                                                                               mechanisms, more
                                                                                               reliance on
                                                                                               corporatist and
                                                                                               clientelist ties.
                                                                          Social solidarity   Legitimacy........
                                                                           and harmony over
                                                                           autonomy.
                                                                          Freedom of thought  Limits: Government
                                                                           and right to        must act in
                                                                           think limited by    accordance with
                                                                           need for common     law.
                                                                           ground and
                                                                           consensus on
                                                                           important social
                                                                           issues; limits on
                                                                           right to
                                                                           criticize
                                                                           government.
                                                                          Attention to        Law to prevent
                                                                           character-          government
                                                                           building, virtues   arbitrariness.
                                                                           and duties as
                                                                           well as rights.
                                                                                              Protect individual
                                                                                               rights, but not
                                                                                               priority and
                                                                                               limited.
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Statist Socialism Rule of Law..  Market economy....  Single party rule,  Emphasis on         Emphasis on         Moderate to low     Broad laws to
                                                       no elections or     subsistence,        strengthening       separation          protect state:
                                                       only at lowest      economic growth     state.              between law and     state secrets;
                                                       levels.             at expense of                           politics.           endangering
                                                                           rights (liberty                                             state.
                                                                           tradeoff).
                                  Much government     Reject neutral      State sovereignty.  Stability.........  Legislature not     Illiberal laws:
                                   regulation;.        state.                                                      elected; Party      limit civil
                                                                                                                   influence on        society, freedom
                                                                                                                   lawmaking process.  of expression:
                                                                                                                                       registration of
                                                                                                                                       social groups; or
                                                                                                                                       privilege group--
                                                                                                                                       no exclusion of
                                                                                                                                       tainted evidence;
                                                                                                                                       administrative
                                                                                                                                       penalties such as
                                                                                                                                       re-education
                                                                                                                                       through labor.
                                  Public-ownership..  Much larger role    Utilitarian or      Predictability and  Functional
                                                       for state.          pragmatic           certainty:          independence of
                                                                           conception of       economic growth.    judiciary; no
                                                                           rights.                                 interference by
                                                                                                                   other branches;
                                                                                                                   courts as
                                                                                                                   independent as
                                                                                                                   opposed to
                                                                                                                   judges, so
                                                                                                                   adjudicative
                                                                                                                   supervision;
                                                                                                                   arguably likely
                                                                                                                   to decide cases
                                                                                                                   based on
                                                                                                                   substantive
                                                                                                                   normative
                                                                                                                   principles
                                                                                                                   defined by state;
                                                                                                                   regime wants
                                                                                                                   courts to serve
                                                                                                                   Party interests.
                                                      No or very limited  Rights as grant     Law as way means     Legal profession:
                                                       civil society,      from state.         of enhancing        subject to
                                                       high level of                           government          political
                                                       corporatist or                          efficiency and      requirements,
                                                       clientelist                             rationality.        partial
                                                       relations with                                              independence,
                                                       government, hard                                            mainly due to
                                                       or statist form                                             corporatist
                                                       of corporatism.                                             nature of
                                                                                                                   relationship with
                                                                                                                   MOJ.
                                                                          Stability and       Dispute             Administrative
                                                                           order privileged    resolution,         law: more
                                                                           over freedom.       property rights     discretion; more
                                                                                               protected through   responsive to
                                                                                               formal and          Party policy;
                                                                                               informal            system imposes
                                                                                               mechanisms, more    weak limits on
                                                                                               reliance on         top leaders,
                                                                                               corporatist and     limited public
                                                                                               clientelist ties.   participation in
                                                                                                                   rulemaking,
                                                                                                                   interpretation
                                                                                                                   and
                                                                                                                   implementation;
                                                                                                                   limited ability
                                                                                                                   for media and
                                                                                                                   public to monitor.
                                                                          Social solidarity   Legitimacy........
                                                                           and harmony over
                                                                           autonomy.
                                                                          State prefers       Some limits on
                                                                           unity of thought    state.
                                                                           to freedom of
                                                                           thought, right
                                                                           thinking to right
                                                                           to think;
                                                                           tendency to
                                                                           exercise strict
                                                                           thought control
                                                                           if possible; at
                                                                           minimum, strict
                                                                           limits against
                                                                           attacks on ruling
                                                                           party; emphasis
                                                                           on thought work
                                                                           to ensure common
                                                                           ground and
                                                                           consensus on
                                                                           important social
                                                                           issues.
                                                                          Attention to        Government must
                                                                           character-          act in accordance
                                                                           building, virtues   with law, but
                                                                           and duties as       accept limits
                                                                           well as rights      begrudgingly.
                                                                                              Prevent government
                                                                                               arbitrariness.
                                                                                              Protect individual
                                                                                               rights, but not
                                                                                               priority and
                                                                                               limited view of
                                                                                               rights.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Rule by Law.....................  Could be planned    Single party rule,  Emphasis on         Law is tool to      No minimal          Law relatively
                                   economy, free       no elections.       subsistence,        serve interests     separation          unimportant; much
                                   market, or                              economic growth     of the state;       between law and     of day-to-day
                                   managed                                 at expense of       Party's role not    politics.           governance by
                                   capitalism.                             rights (liberty     defined in law;                         policies.
                                                                           tradeoff).          no meaningful
                                                                                               legal limits on
                                                                                               rulers.
                                  Government          Reject neutral      Socialist           Law enhance         Party policies      Absence of many
                                   intervention high.  state.              conception of       government          supplant and        major laws--
                                                                           rights as           efficiency.         trump laws.         criminal law,
                                                                           bourgeois;                                                  contract law,
                                                                           emphasis on                                                 civil procedure
                                                                           duties,                                                     law
                                                                           particularly
                                                                           duties to state.
                                  Public/private      Totalitarian or     Rights as grant of  Law not meant to    Legislature not     Laws ignored
                                   distinction non-    authoritarian       state.              protect             elected, just
                                   existent or         state.                                  individual rights.  rubber stamp.
                                   unimportant.
                                  Control by          No or very limited  Rights exist as     Dispute             Courts not
                                   administrative      civil society,      programmatic        resolution, but     independent;
                                   policy and fiat.    state dominated     goals only, no      many disputes       Party determines
                                                       corporatist         real protection     settled             outcome of
                                                       arrangements.       of rights.          administratively    specific cases;
                                                                                               or by Party         adjudicative
                                                                                               leaders rather      committee used to
                                                                                               than in courts.     enforce Party
                                                                                                                   line; courts
                                                                                                                   serve Party
                                                                                                                   interests.
                                                                          State sovereignty.  Heavy reliance of   Legal profession:
                                                                                               mediation to        lawyers as
                                                                                               resolve disputes    workers of the
                                                                                               ``among the         state; no
                                                                                               people'', formal    independence;
                                                                                               legal system used   work in state
                                                                                               to suppress         firms; limited
                                                                                               enemies.            rights to defend
                                                                                                                   accused.
                                                                          Social solidarity   Party members not   Administrative
                                                                           and harmony over    subject to courts.  law: main purpose
                                                                           autonomy.                               is government
                                                                                                                   efficiency;
                                                                                                                   officials wide
                                                                                                                   discretion,
                                                                                                                   govern by fiat;
                                                                                                                   no administrative
                                                                                                                   laws provide
                                                                                                                   individuals right
                                                                                                                   to challenge
                                                                                                                   government; no or
                                                                                                                   extremely limited
                                                                                                                   public
                                                                                                                   participation in
                                                                                                                   administrative
                                                                                                                   process.
                                                                          state enforces
                                                                           strict thought
                                                                           control; unity of
                                                                           thought over
                                                                           freedom of
                                                                           thought.
                                                                          Strict limits
                                                                           against attacks
                                                                           on ruling party.
--------------------------------------------------------------------------------------------------------------------------------------------------------

                               Appendix II

                         Legal Reforms in China

    This report assesses the current and future obstacles and potential 
for legal reform, and suggests ways to facilitate reforms consistent 
with an overall objective of promoting the rule of law and the 
protection of individual rights.\8\ Part I provides a general overview 
of legal reforms in China. Part II offers some general observations 
about what can be done to support reforms based on the discussion 
presented in Part I and a recent meetings with participants in previous 
projects and others in the legal community. Part III focuses more 
specifically on legal research in China, both by academics and by the 
research arms of government entities such as the National Judges 
Institute. Part IV focuses on judicial training. Part V takes up a hot 
topic being debated in the Chinese legal community: the need to 
establish one or more centralized committees or entities to guide legal 
reforms.
---------------------------------------------------------------------------
    \8\ The assumption is that rule of law tends to result in better 
protection of individual rights. However, it also is important to note 
that the meaning of rule of law is contested. A thin or procedural rule 
of law does not entail a particular conception of rights. In contrast, 
thick or substantive theories of rights incorporate particular 
interpretations, conceptions or theories of rights--such as liberal, 
communitarian, Asian Values, etc. Some scholars have argued that a thin 
rule of law lacks sufficient normative content to adequately protect 
rights. However, even a thin rule of law necessarily entails some 
protection of rights as rule of law entails meaningful limits on the 
state.
---------------------------------------------------------------------------
  I. OVERVIEW OF LEGAL REFORMS: MOVING BEYOND A COURT-CENTRIC APPROACH

    It is essential to begin with an overview of legal reforms in 
China. First, many bilateral and multilateral assistance programs have 
focused on ``judicial reforms'' in the narrow sense of courts and 
judges. The reasons for this were basically twofold. Courts and judges 
are clearly central to the successful implementation of rule of law, 
and without doubt PRC courts and judges are a weak link in the rule of 
law chain. Further, given limited resources and virtually unlimited 
areas in need of reform, many donors chose to concentrate on funding a 
couple of areas where it felt its support could have the greatest 
impact. Focusing on the courts allowed donors to fund a range of 
projects to address various interrelated problems, thus providing a 
more comprehensive and potentially more effective reform package.
    While understandable, a court-centered approach has certain 
disadvantages. PRC courts have a somewhat more limited role than courts 
do elsewhere: for instance, legal interpretation and review of 
regulations for consistency is done by different entities. Further, as 
in other systems, other entities such as the prosecutor and police also 
play important roles in the implementation of law. An overview of the 
legal system suggests that donors could increase their impact on legal 
reforms by funding other entities or other projects not related to the 
courts, with the procuracy and police being particularly suitable 
candidates in terms of need, though questions remain as to the 
possibility of designing effective programs.
    Second, courts and all legal institutions function in a particular 
context. Even if donors wish to continue to focus on the courts, it is 
important to understand the general context in which courts are 
operating in order to choose projects that are feasible and likely to 
lead to significant reforms. Accordingly, I discuss briefly some 
general factors affecting legal reforms--the political and 
constitutional structure, economic reforms and the unfinished 
transition to a market-oriented economy, tradition and culture, the 
urban-rural divide, and the negative affects of widespread corruption. 
I then turn to the particular legal functions and the institutions 
responsible for them in China: legal education, lawmaking/legislation, 
legal interpretation and implementation of law.

                           A. General factors

1. Political and constitutional structure
    Legal reformers must take into consideration China's political 
structure, including the role of the Party, the unitary structure in 
which the National People's Congress (NPC) is the highest organ of 
State power such that there is a separation of functions but not 
separation of powers in the sense of constitutionally equal and 
independent branches, and the particular division of powers among State 
organs--including the procuracy's role as supervisor of the courts, the 
dispersion of lawmaking and interpretation authority to a wide variety 
of organs and the division of powers among central and local levels. 
Some of these features are not unique to China. Given certain 
similarities in institutional structures, it makes sense to look first 
to European civil law countries for comparative purposes. In contrast, 
this very different political structure from our own suggests that 
legal reforms modeled on the U.S. are likely to require adaptation if 
they are to be successful.
    Although reforms over the last 20 years have resulted in the Party 
ceding responsibility for daily operations to the usual State actors, 
the Party unquestionably remains an important institution in China, and 
is likely to continue to be so for some time. Nevertheless, there is 
much that can be accomplished by way of legal reforms within the 
current structure (in part because many reforms are in the Party's 
interests and in part because the Party's options are increasingly 
constrained by objective factors such as the needs of economic reform, 
pressure from globalization and China's increasing involvement in the 
international legal order, most notably the WTO). On a theoretical 
level, more attention needs to be paid to what the acceptable 
parameters of rule of law within a single party system are: what would 
be an acceptable role for the Party consistent with the requirements of 
rule of law?
    Most importantly, however, rather than knee-jerk reactions to any 
role for the Party whatsoever, it would be more productive to adopt a 
pragmatic approach that focuses on what the actual role of the Party is 
in practice and the advantages and disadvantages of various forms of 
Party involvement in the legal system. When is Party involvement 
helpful and when it is not? What forms of involvement (by which Party 
organs or groups) are acceptable? How can the various roles of Party 
organs be modified and improved to increase the positive consequences 
and diminish the negative ones? What are the channels for influencing 
the Party's role? Are some organizations better situated to undertake 
this kind of work than others? For instance, Li Buyun has suggested 
that Chinese Academy of Social Science's (CASS) semi-official status 
increases the likelihood that his project on judicial independence will 
influence decisionmakers. At present, the channels for influencing 
decisionmakers in China, particularly Party organs, is opaque at best. 
Indeed, the role of Party organizations in the actual operation of the 
legal system seems to be poorly understood and little discussed in 
public. While academics and others may be reluctant to discuss the 
Party's role for obvious reasons, to the extent possible, more open 
discussion of the pros and cons would be useful. Funding projects 
involving Party organs or Party schools would be highly desirable, 
assuming that the right personnel were involved. For instance, Fang 
Shirong, formerly the Dean of Southcentral University of Law and 
Political Science, has now taken an influential position in a Party 
school, and thus is well-positioned to lead what could potentially be 
an extremely informative and influential project.
    Recently, Party leaders have expressed an interest in social 
democratic parties, sending teams to Western and Eastern European 
countries to explore how the Eastern countries made the transition and 
how such parties operate. This also would seem to provide an 
opportunity for legal scholars, in conjunction with political 
scientists, to rethink the role of the Party, especially in relation to 
the legal system and rule of law.
    More generally, rather than simply assuming that China must adopt 
political and legal institutions like those in the West (whether civil 
or common law), reformers should be encouraged to first gain a better 
understanding of the particular problems faced by practitioners and 
what methods those on the ground have developed to overcome the 
problems. Such information might be valuable in selecting from the menu 
of options available from other countries, adapting the approaches used 
in other countries to fit China's circumstances or even in creating new 
institutions. Of course, China's legal institutions have converged to a 
considerable extent with those in other countries. Moreover, China's 
problems, while to some degree specific, are not wholly dissimilar to 
the problems faced by other states as they modernize. Accordingly, 
China need not reinvent the wheel. Nevertheless, there remains 
considerable room for creativity and institutional novelty.
2. Economic reforms
    China's unfinished transition to a market-oriented economy creates 
problems for legal reforms and rule of law. Laws change rapidly; there 
is considerable inconsistency in laws; local governments ignore or bend 
central laws to attract investors and promote economic growth, pressure 
courts to find in favor of local parties or engage in other forms of 
local protectionism, etc. It will be years before a reasonably stable 
economic equilibrium is reached.
    On the other hand, economic reforms also create opportunities for 
legal reformers. Legal reformers may be able to harness the power of 
economic reforms to promote changes. For instance, the conflict of 
interest that exists when government agencies are also market players 
has led to the demand to separate agencies and businesses, with 
agencies focusing on their regulatory tasks. Similarly, as part of its 
protocol of accession to the WTO, China has also committed to reducing 
inconsistency in laws; applying and administering laws in a uniform, 
impartial and reasonable manner; expanding judicial review of 
administrative acts; creating a mechanism in which investors can bring 
to the attention of national authorities cases of non-uniform 
application of laws; establishing an official journal to publish all 
trade related legislation; providing a reasonable period for public 
comment before trade related legislation takes effect; and providing an 
inquiry point for investors to obtain interpretation of laws and 
regulations, etc.
    A number of donors are sponsoring WTO-related projects and other 
projects that focus more specifically on commercial law. Donors should 
not ignore opportunities created by economic reforms to strengthen 
institutions, as the affects of strengthening institutions are likely 
to spillover into other areas of law.
3. Tradition and culture
    Legal reformers face a number of challenges given China's past and 
its current social conditions. As often noted, law has traditionally 
played a somewhat different and less important role in China than in 
other countries. Raising the level of legal consciousness and getting 
people to trust in the legal system and respect the law is no easy task 
(a task complicated by media and academic reports portraying judges as 
incompetent and corrupt).\9\
---------------------------------------------------------------------------
    \9\ Corruption and competence are problems of course. However, the 
media tends to focus on negative issues simply because when the system 
works properly it is expected and not news: man bites dog is news 
whereas dog bites man is not.
---------------------------------------------------------------------------
    Moreover, some practices such as extensive reliance on renqing 
(feelings) and guanxi (personal connections and networks) often 
undermine attempts to govern in accordance with law. Similarly, 
laypeople often have an unrealistic expectation of law. The traditional 
emphasis on substantive justice supports the mistaken impression among 
many that the legal system is capable of solving all social problems 
and rectifying all forms of injustice. It also leads to parties 
pursuing adjudicative supervision and other channels to review final 
court decisions.
    Legal reforms that are at odds with social practices and values are 
likely to be difficult to implement. Thus, attempts to implement the 
criminal procedure law, restrict capital punishment or even curb the 
widespread reliance on torture find little support from a populace wary 
of increasing crime. Like American citizens, Chinese citizens have 
supported the government's war on crime and terrorism, even at the 
expense of civil liberties.
    Law in action programs, including legal aid clinics, consumer 
protection agencies, and support for administrative law reforms, may 
help to some extent to demonstrate to people the value of law. At the 
same time, where possible, efforts should be made to educate people as 
to the limits of law and to create more reasonable expectations.
4. Urban-rural divide
    The vast differences between rural and urban China create 
challenges to legal reformers. Simply gathering accurate information 
about the operation of law in the countryside, attitudes toward law 
among rural residents and problems faced by rural legal organs is 
difficult. Clearly, rural areas have more difficulty attracting legal 
talent. Designing meaningful projects capable of addressing the 
problems that arise in rural areas is not easy. Such projects require 
for starters an accurate understanding of what is happening in the 
countryside, which could perhaps be obtained through survey work, cases 
studies and web-based information networks of the kind being 
established by the National Judges Institute.
5. Corruption
    Widespread corruption, including judicial corruption, is eroding 
confidence in the ruling regime and threatening to undermine efforts to 
establish rule of law. Corruption is definitely one of the most 
important and difficult issues in China's legal reform. It is 
notoriously difficult to study corruption or to measure it. It is also 
difficult to come up with practical plans to reduce corruption. While 
it would be naive to expect too much by way of results given the 
institutional nature of corruption, one suggestion might be to study 
court systems that enjoy a relatively clean reputation, such as 
Shanghai. Comparative studies with other countries might also be 
useful. The World Bank and others have been interested in this topic 
recently. A few years ago, the Chinese Academy of Social Sciences held 
a conference on judicial corruption. However, it is not clear what came 
of it, and whether it led to a research or reform agenda or any follow-
up projects (a fate unfortunately all too typical of academic 
projects).

                  B. Institutional/functional approach

    One way to approach legal reforms is to focus on particular 
institutions: the courts, NPC, procuracy, etc. Another way would be to 
focus on particular legal functions: legal education and training, 
lawmaking, legal interpretation, and implementation. Still another 
approach would be to focus on particular areas of law: administrative, 
criminal, family, environmental, etc. Here I use an institutional/
functional approach.
1. Legal education
    Many of China's legal problems stem from the fact that many people 
responsible for making, interpreting and implementing law -whether 
government officials, lawyers, procuratorates or judges--lack adequate 
legal knowledge and training. In part this is a historical artifact 
resulting from the Cultural Revolution. But it is also a function of 
current methods of legal education and training.
    Foreign assistance agencies have supported a number of legal 
education projects. Given the utmost importance of improved legal 
education, such projects and the challenges facing legal educators 
should be the subject of a separate study and appraisal. Suffice it to 
note in passing that law schools ought to put more emphasis on legal 
analysis and (practice-oriented) research rather than memorization of 
black letter law. Rather than lecture, professors should stimulate 
students to think about law and to encourage interaction. In addition, 
clinical legal education should be further developed.
    As discussed below, judges, procuratorates, police and government 
officials need both remedial (basic) legal education and more 
specialized training tailored to their particular responsibilities.
2. Legislation: Laws and regulations
    Lawmaking (broadly defined to include all legislation, regulations 
and normative documents) in China suffers from a number of problems, 
including lack of transparency and participation in the lawmaking 
process; the failure to publish or provide ready access to many 
regulations; the poor quality of much legislation, despite steady 
improvement; and inconsistencies between higher and lower level 
regulations. As in other countries, a number of entities are authorized 
to make law: the NPC and local people's congresses; administrative 
agencies; local governments; even the courts if one counts the practice 
of the Supreme People's Court (SPC) of issuing legal interpretations 
that have the effect of laws. However, in China, the mechanisms for 
ensuring consistency are underdeveloped.
    The passage of the Law on Legislation (Lifa Fa) and the future 
passage of the Administrative Procedure Law (APL) will alleviate some 
of these problems, allowing for greater participation, requiring 
hearings and the publication of laws, and providing for new ways to 
challenge inconsistent regulations. Yet there will continue to be 
problems, and thus there are likely to be ample opportunities to fund 
worthwhile projects that focus on specific areas of reform such as: 
research for and drafting of the APL (including empirical research on 
particular administrative agencies and the issues they face and 
comparative research on administrative procedure laws in other 
countries); development of legislative and administrative hearing 
processes, including drafting of regulations and training; the creation 
of nation-wide data bases for laws and regulations (some donors are now 
supporting various data bases, but without any apparent attempt to 
coordinate their efforts or link up the data bases); and the 
establishment of entities and procedures for reviewing legislation for 
consistency.\10\
---------------------------------------------------------------------------
    \10\ This list is by no means meant to be exhaustive. It also bears 
noting that many foreign actors have already sponsored projects aimed 
at building institutional capacity by training drafters of laws and 
regulations at the NPC, State Council and in various organizations, as 
well as having sponsored the research for and drafting of various laws 
and regulations.
---------------------------------------------------------------------------
    To be sure, although a number of solutions have been proposed and a 
number of steps taken to reduce the level of inconsistency, they are 
not likely to suffice for reasons explained elsewhere.\11\ In the end, 
deeper institutional reforms, including judicial reforms to increase 
the independence and authority of the courts--in particular giving the 
courts the power to annul administrative regulations--are likely to be 
required.
---------------------------------------------------------------------------
    \11\ See Peerenboom, China's Long March Toward Rule of Law, chapter 
5 (Cambridge University Press, 2002).
---------------------------------------------------------------------------
3. Legal interpretation
    Legal interpretation in China leaves much to be desired. There is 
no constitutional court. The National People's Congress Standing 
Committee (NPCSC) rarely fulfills its constitutional responsibility to 
interpret laws. There are no clear procedures for obtaining an NPCSC 
interpretation. When the NPCSC does decide to act, the interpretive 
process lacks transparency and opportunities for public participation. 
Nor is the issue of the role of legislative history clear.
    To fill the void, the SPC issues interpretations in a variety of 
guises, from comprehensive interpretations (jieshi) to generally 
applicable replies (pifu) to replies applicable only in the specific 
case (and in some cases explanations of their interpretations, as in 
the case of explanation by the drafters of the Security Law 
interpretation submitted internally to the SPC adjudicative committees 
but subsequently published by the Jilin People's Press). Yet the SPC's 
legal authority to issue comprehensive interpretations is unclear. 
Moreover, critics note that the practice of issuing replies violates a 
party's right to an appeal. Needless to say, the status of internal 
explanations of interpretations is even more dubious. As with NPC 
interpretations, the entire process is shrouded in mystery and lacks 
transparency and meaningful public participation.
    Similar problems plague interpretation by the procuracy and 
administrative agencies. In addition, different departments or entities 
often issue conflicting interpretations. In some cases, Fagongwei (the 
NPC committee in charge of drafting and legal affairs) was charged with 
taking the lead in mediating conflicts between the different entities 
and coordinating interpretation, even though there was no legal basis 
for the Fagongwei to issue interpretations of laws.
    In short, legal interpretation would seem to be an area ripe for 
reform, possibly even a major overhaul (especially now that the SPC has 
stated that parties may in certain circumstances directly invoke the 
constitution to protect their rights). It might be worth considering a 
project that takes a comprehensive look at legal interpretation, 
including empirical research into how interpretation actually works in 
the various entities, what the issues are, and how the process could be 
improved. Perhaps this could be one of the tasks of the centralized 
Legal Reform Committee discussed in Part V. As the experience with the 
Law on Legislation suggests, the procuracy is not likely to give up its 
power to interpret laws easily.
4. Implementation
    The obstacles to implementation vary depending on the area of law: 
criminal, administrative, family, environmental, commercial, etc. Thus, 
in some cases, it makes sense to focus on area-specific projects, such 
as administrative or criminal law projects that are particularly 
central to the protection of rights. Different regions also face 
different problems. Nevertheless, there are general systemic and 
institutional obstacles to enforcement that cut across the various 
areas, albeit with varying degrees of relevance and importance to any 
given area. Accordingly, an institutional approach that focuses on 
institutional capacity building is warranted.

          (a) The courts

    Rule of law requires a judiciary that is technically competent, 
independent, and enjoys sufficient powers to resolve disputes fairly 
and impartially. China's judiciary falls short on each of these 
dimensions. Clearly, comprehensive judicial reform is required, 
including deep institutional reforms.
    However, judicial reforms must be sequenced and implemented in 
accordance with the judiciary's institutional capacity to change. 
Suddenly providing more authority and independence to incompetent and 
corrupt judges could result in more rather than fewer wrongly decided 
cases, which would then further undermine the legitimacy of the legal 
system. On the other hand, it will be difficult to attract and retain 
qualified personnel to the judiciary without increasing the authority 
and independence of the courts. Accordingly, a series of incremental 
reforms is required whereby the authority and independence of the 
courts is increased over time as the judiciary becomes more competent 
and capable of handling the additional responsibility.
    (i) Technical issues.--A number of recent reforms have sought to 
improve efficiency (by separating functions within the court, imposing 
deadlines for handling cases, etc.), access to justice (by limiting 
fees and providing legal aid) and the quality of the trial by 
appointing more qualified presiding judges and requiring judges to 
write better judgments, etc. In addition, trials are now open to the 
public, and judgments are being made available online, thus increasing 
the transparency of the courts and subjecting them to public scrutiny 
and supervision.
    Currently, there seems to be considerable interest in evidence 
rules and the use of summary procedures. A new Evidence Law is being 
drafted, and the Supreme People's Court, Supreme People's Procuracy and 
the Ministry of Justice have recently jointly issued regulations that 
provide for summary and simplified procedures in criminal cases where 
the defendant admits guilt.
    There is a tendency to announce a particular reform and then fail 
to follow-up to investigate the extent to which reforms are actually 
being implemented, how effective they are, what obstacles have arisen, 
what modifications or solutions have been tried, etc. Consolidating 
reforms is as important as devising new reforms. Grantees often apply 
for funding for each new reform that is in the works, rather than going 
back and testing how earlier reforms are working. Donors might want to 
consider funding longer term projects with a follow-up component, or 
just to fund follow-up projects, to ensure that reforms are 
consolidated.
    (ii) Personnel issues: Quality of judges and legal assistants.--
Recent reforms have sought to address a bloated judiciary with many 
judges lacking in sufficient legal knowledge and training. Raising the 
standards for becoming a judge, instituting a unified national exam, 
selecting the most qualified judges to be presiding judges, requiring 
court presidents and vice presidents to have a legal background, 
transferring unqualified judges to non-adjudicative positions, reducing 
the number of judges, closing off the route for secretaries and ex-
military officials to become judges, etc.--all deserve to be applauded.
    Nevertheless, serious problems remain. Again, it would be useful to 
know more about how the recent reforms are working. Anecdotal evidence 
suggests that the shenpanzhang system is not working as well as it 
should. Promotion is still based largely on factors other than legal 
knowledge and performance, including seniority. Academics debate the 
extent to which ex-military officials are still engaged in adjudicative 
work, the reasons why they are, and what should and can be done about 
it.
    Current hot issues include how to increase efficiency by 
distinguishing between judges (including assistant judges) and clerks/
secretaries, and dividing up responsibilities among them (with 
different training and career paths for judges and secretaries). This 
is an area worth exploring. While comparative studies may be useful, 
the first step should be to get a better picture of what is happening 
in courts around China. Moreover, it is more likely that Europe would 
be a better place to look for relevant experience than the U.S., given 
the different career paths of judges.
    Another hot issue is the unified judicial exam. The implications of 
a unified national exam are only now being thought through. The exam 
has been conducted for 2 years, and no doubt a number of issues have 
arisen.
    The quality of the judiciary is a major issue that involves funding 
considerations (Should judges be given raises? What should happen to 
judges who are terminated or transferred to non-adjudication 
positions?), appointment and promotion considerations, and the issue of 
judicial independence. These issues go to the heart of institutional 
reforms and the restructuring of the courts. Nevertheless, even within 
the existing parameters, much can be done to improve the quality of the 
judiciary. The most obvious means is through training, which because of 
its importance is discussed separately in Part IV.
    (iii) Judicial independence.--Given the low level of competence of 
many judges and problems with corruption, there must be a balance 
between judicial independence and judicial accountability. 
Nevertheless, judges are currently subject to too much supervision and 
outside interference. The independence of the courts is threatened by 
the lack of adequate funding, the reliance on governments at the same 
level for funding and the way judges are appointed. Judges are subject 
to pressure from the Party (through various channels, both from outside 
the court and within the court), government officials, people's 
congresses, procuracy, senior judges within the court and higher level 
courts, the media and members of society. Addressing these issues would 
require major institutional changes, including in some cases amendments 
to the Constitution that would alter the balance of power between the 
courts and people's congresses and the procuracy.
    One issue is how best to promote greater judicial independence 
given the politically sensitive nature of judicial independence and the 
fact that major institutional reforms would be required to make much 
headway. The Ford Foundation has funded a project by CASS, headed by Li 
Buyun, that involves an empirical study of interference with the courts 
as well as a comparative and theoretical angle. The project is supposed 
to produce a book on judicial independence plus several reports that 
will be forwarded to decisionmakers in China by taking advantage of 
CASS's quasi-governmental status. This project is to be applauded for 
including an empirical component that attempts to understand more 
specifically the forms and sources of interference with the courts. 
However, there are already a number of empirical studies about the 
frequency and source of interference with the courts. In fact, Li noted 
that Supreme People's Court President Xiao Yang recently commissioned a 
study but then set it aside when it turned up so many problems. Thus, 
it is questionable whether the problem is lack of knowledge about the 
nature and severity of the problem. It is also questionable whether 
Li's study will have any more impact than previous studies, though as 
noted above Li hopes that CASS's special status and connections (and I 
would add Professor's Li's own status and connections) might make a 
difference. Moreover, presumably Li's study would be published, and 
thus could lead to a public debate that might create further pressure 
for reform.
    There have been a number of proposals regarding how to overcome 
local protectionism and increase judicial independence, from the 
creation of a Federal court system to the establishment of cross-
provincial regional courts to centralizing funding for the courts and 
judicial appointments. A project looking in detail at each of these 
proposals (and possibly others) might be worthwhile. More specifically, 
one of the concerns with institutional reforms that would centralize 
funding is that it would create too big a fiscal burden for the central 
government. A study that would try to calculate what the costs would be 
and that would address issues such as how the center would collect fees 
from lower courts, calculate a budget, allocate funds, etc. might be 
valuable.\12\ Proposals to promote experimentation in the way judges 
are appointed--or to collect information about such experiments to the 
extent that they are already occurring--would also be worth exploring.
---------------------------------------------------------------------------
    \12\ In 2002, there was CASS conference on judicial reform in which 
one of the four main topics was how to deal with local protectionism. 
There was considerable discussion of the practical issues involved in 
restructuring the way courts are financed and judges appointed. Again, 
coordination, sharing of information and dissemination of results is 
important. Whether the CASS conference will produce tangible results in 
the form of conference papers is not clear. More generally, as many of 
the issues that affect the court (legal aid, funding for equipment and 
salaries, etc.) touch on issues of public finance, foreign agencies 
might want to consider breaking down the internal walls within the 
typical programming structure so that those responsible for legal 
affairs and economic/public finance could fund collaborative projects.
---------------------------------------------------------------------------
    (iv) Authority of courts.--Courts in China lack stature and 
authority. Projects that explore ways to expand the authority of the 
courts merit consideration. For example, it might be worth exploring 
ways to allow some courts to strike down certain abstract acts (though 
this may require constitutional change). The authority of the SPC to 
interpret laws and regulations could also be given a firmer legal 
foundation. However, given the difficulty of these reforms and finding 
entities to push for them, it might be more feasible to concentrate on 
expanding powers already enjoyed by the courts. For example, courts 
have been reluctant to take full advantage of their powers to strike 
down specific administrative acts based on abuse of authority. Courts 
have also rarely taken advantage of their powers to hold individuals, 
companies or government entities in contempt if they do not cooperate 
with the courts in enforcing judgments, providing evidence, etc. To be 
sure, unless the way courts are funded and judges appointed is changed, 
courts are not likely to become terribly aggressive in challenging 
government entities or officials.

          (b) Agencies

    Government agencies are a key player in the implementation of law. 
Yet agencies are plagued by local protectionism, departmental turf-
fighting, cut-backs that seem to have resulted in young and poorly 
trained people assuming positions of power (at the Ministry of Foreign 
Trade and Economic Cooperation (MOFTEC), for example). More generally, 
officials are poorly paid, and corruption is widespread. Further, 
agencies enjoy considerable discretion for various reasons. While 
agencies everywhere enjoy considerable discretion, and there are good 
reasons why agencies in China should enjoy even more discretion in some 
circumstances, the legal mechanisms for checking discretion--letters 
and petitions, administrative supervision (and Party discipline), 
reconsideration, and litigation--remain weak.
    The task of improving the quality of administrative agency 
officials is complicated by the tremendous diversity of agencies, which 
makes it hard to devise effective training strategies. Moreover, the 
sheer number of officials presents obvious problems. Some donor 
agencies with large budgets, such as the EU, have established training 
programs for key agencies or departments within agencies, such as 
MOFTEC and its Treaties and Law Section. France has also established a 
program between its school for civil servants and its Chinese 
counterpart. There have also been various programs aimed at training up 
officials responsible for patents, copyrights, and trademarks and 
developing the institutional capacity of entities that deal with 
intellectual property issues. Although these programs may only be a 
drop in the bucket, as it were, they may be effective when they target 
specific departments with a clearly defined agenda.
    The Ford Foundation has supported a number of projects in the area 
of administrative law, including support for drafting of administrative 
legislation (including regulations for the courts with respect to 
implementing the State Compensation Law), training of administrative 
law judges, study abroad for PRC administrative law specialists to 
research judicial review, administrative licensing and the U.S. 
Administrative Procedure Act, and a book on comparative administrative 
litigation.
    There are still some holes in the regulatory regime: a licensing 
law, compulsory enforcement law and administrative procedure law are 
being drafted. Improvements can also be made to existing rules and 
mechanisms for reining in government officials. For instance, 
reconsideration bodies lack independence. China might consider tough 
rules against ex parte communication and a system where reconsideration 
personnel are not members of the agency whose actions they are 
reviewing.
    On the whole, however, China's administrative law regime remains 
weak due to various context-specific factors discussed previously, many 
of which have little to do with the administrative law system as such, 
including shortcomings in the legislative system, weak courts, poorly 
trained judges and lawyers, corruption, a low level of legal 
consciousness among government officials and the citizenry, and the 
fragmentation and overlapping of authority that have resulted from the 
transition to a more market oriented economy. Thus, improving the 
administrative law system is largely an indirect process involving 
general institution building.

          (c) Procuracy

    The procuracy has attracted relatively little attention from 
academics, Chinese or foreign, or from foreign donors.\13\ At this 
stage, there would appear to be a need for more research to better 
understand what the procuracy is doing and the issues it is facing. One 
possibility would be to encourage the National Procuracy Institute to 
establish an internet information network along the lines of the one 
established by the National Judges Institute.
---------------------------------------------------------------------------
    \13\ There are some exceptions: The Canadian International 
Development Agency and Sweden have done some projects on prosecutors.
---------------------------------------------------------------------------
    One issue that is apparent is the tension between the procuracy and 
the courts. While many believe the procuracy's right to supervise the 
court should perhaps be limited, a firm empirical basis is lacking to 
back up the argument. Moreover, it might be easier to persuade the 
procuracy to accept limitations on its powers if such limitations were 
combined with proposals to increase the authority or responsibilities 
of the procuracy in other ways (for instance, encouraging the procuracy 
to bring class actions suits rather than relying on private lawyers, a 
suggestion raised in passing by Zhu Suli).
    Presumably the procuracy is facing many of the same types of 
technical and personnel issues as the courts. Clearly there are similar 
issues with respect to lack of sufficient legal knowledge and training. 
As with judges, training of procuratorates is a daunting task. While 
there are differences in training judges and training procuratorates, 
many of the issues are the same, including the need to develop 
practical materials, difficulties locating qualified instructors with 
the necessary legal knowledge and practical experience, the need to 
train large numbers of procuratorates that have very different legal 
backgrounds and work in quite different environments, and the need to 
effectively disseminate the results of training received at training 
centers to others who could not attend the training sessions.
    Foreign agencies could play a valuable role in strengthening the 
procuracy by taking advantage of what they have learned in supporting 
court projects. For example, representatives of the National Procuracy 
Institute proposed more trips abroad for their researchers or for 
senior procuratorates to observe other systems. As discussed below, 
such trips seem to have produced limited results. While they may be 
useful in some circumstances, they require careful planning and other 
conditions. Other donors have also noted that sending procuratorates 
(and judges) abroad for training has been hampered by the insistence on 
the part of the courts and procuracy that they select the trainees. 
Language, dissemination of information gained from training and the 
impact of those trained when they return are also issues.
    Simply facilitating information transfer between the two national 
institutes would be useful, particularly given that the National 
Procuracy Institute seems to have made greater headway in tackling some 
of the training issues than the National Judges Institute, for instance 
with respect to the development of practical materials and 
investigations into the use of distant learning technologies. 
Conversely, as noted, the information network being established by the 
Judges Institute might be useful for the procuratorate. Similarly, both 
the procuracy and the courts are doing research, often on similar 
topics, without any coordination.

          (d) Police/Public Security (Gongan)

    Without doubt, the police/public security are the front lines in 
the implementation of law; equally without doubt, their role in the 
implementation of law is a major trouble area. Like the procuracy, 
public security has received insufficient scholarly attention. Yet the 
problems facing potential researchers and reformers are even greater. 
By its nature, police work is primarily local. The implications are 
several: collecting information and designing effective programs is 
likely to be difficult, because different localities are likely to face 
different problems; top-down approaches are not likely to be effective; 
training will be difficult because of the sheer numbers of police, 
their different backgrounds and their different problems. Further, 
police work is often secretive. One of the problems documenting use of 
torture or violations of laws in collecting evidence or interrogating 
suspects is that police act differently when they are being observed by 
outsider observers.
    Nevertheless, there are likely to be opportunities for 
strengthening police work in accordance with law. Technical assistance 
or exchange programs may provide Chinese police with new information or 
techniques for investigating crimes that render reliance on torture 
less necessary, for example. Surely other countries have had problems 
with torture, and may have some useful lessons to share about what to 
do about it.
    Again, some donors have begun to work in this area, including 
Office of the High Commissioner for Human Rights (OHCHR) and Norway, 
both of which have had programs on policing. The OHCHR held a workshop 
in Beijing on July 5-6, 2001 that apparently (i) discussed 
international standards applicable to police conduct; (ii) shared 
comparative studies of training and operation manuals for police, 
particularly with respect to human rights elements; (iii) identified 
follow-up steps to integrate relevant U.N. material into police 
training in China. Norway sponsored an international workshop on 
Rights, Crime and Policing in China attended by PRC, European and North 
American experts. Sweden also sponsored projects on prisons and public 
security in 1996 and 1998 respectively.

          (e) Lawyers

    China's legal profession has made great strides in terms of numbers 
and quality, though much remains to be done. Many lawyers are still 
poorly trained and lack sufficient legal knowledge to carry out their 
tasks. There is still a shortage of lawyers, particularly in rural 
areas. Like lawyers elsewhere, many PRC lawyers want to practice 
commercial law, while few want to practice in less lucrative areas such 
as criminal or environmental law. Professional ethics are a problem. 
Chinese lawyers involved in litigation frequently engage in unethical 
behavior (often because there is little alternative if they are to 
compete with other lawyers and serve their clients' interests). Chinese 
lawyers and law firms also cultivate clientelist relationships with the 
Ministry of Justice, MOFTEC, the State Administration for Foreign 
Exchange and even the courts. Bar associations remain weak, with key 
positions often filled by justice officials.
    Chinese firms tend to be small. Many firms are really not firms at 
all but rather just a nameplate where each individual lawyer works 
independently and is compensated on an eat-what-you-kill basis. 
Management problems are common, and keep firms from reaching a size 
required to compete with major international firms. Firms tend to 
invest little in the training of younger associates. Younger associates 
often leave, in part because they see little point in staying given 
that they are paid little, receive little training and are not likely 
to be allowed to make partner. On the other hand, younger associates 
often have an inflated sense of their abilities and market value, and 
an unrealistic sense of what it takes to develop a practice.
    The role of lawyers is often poorly understood. Lawyers frequently 
encounter problems in carrying out their work, and even at times are 
subject to physical abuse or arbitrary arrest. Some judges and 
procuratorates resent the fact that lawyers make so much more money.
    The legal profession is a hard group to target for reforms. The 
quality and technical skills of lawyers is likely to improve over time 
as legal education is improved, the bar for becoming a lawyer is raised 
(presumably the Lawyers Law will be amended soon so that would-be 
lawyers will have to have a college degree to sit for the unified 
national exam), and market competition, particularly in the cities--
resulting from the increase in foreign firms after WTO and the sheer 
increase in numbers of Chinese lawyers--forces lawyers to up their game 
to survive. In contrast, post-graduation training seems to have little 
effect. For starters, it is difficult to design a meaningful training 
program for lawyers with different practices (foreign investment, 
intellectual property, criminal, etc.) and legal backgrounds. Lawyers 
at top firms are generally much better trained than the trainers. 
Meanwhile, lawyers in rural areas may have a weak foundation in law.
    Efforts to inculcate professional ethics through educational 
campaigns and persuasion are not likely to have much effect. A more 
practical approach would be to encourage malpractice litigation. 
Indeed, a study of malpractice litigation would be useful: how often 
does it occur, in what kind of cases, what are the results, etc.
    Malpractice suits are not likely to have much of an impact on 
clientelist relationships. The main solution is likely to be 
administrative and market reforms such that the MOJ's control over 
lawyers (and hence their ability to extract rents) is diminished and 
successful firms no longer need to rely on the MOJ or special 
assistance from other agencies to attract and service clients.

II. WHAT CAN FOREIGN ACTORS DO TO FACILITATE LEGAL REFORMS AND ACHIEVE 
                            GREATEST IMPACT?

                              Be realistic

    Clearly, many of the obstacles to implementing rule of law in China 
are beyond the capacity of any foreign donor to change. Some problems, 
such as the institutional reforms necessary to enhance independence of 
the courts, require political will on the part of China's 
decisionmakers. Other problems are even beyond the powers of China's 
leaders: there is simply no way to create a qualified corps of judges 
overnight, for example.

                   Pick institutions that can deliver

    A superficial comparison between the National Judges Institute and 
National Procuracy Institute suggests the importance of working with 
entities and individuals that can deliver. Projects might look good on 
paper. But they may not achieve the desired results if they are not 
properly implemented. Whereas the National Judges Institute has 
received considerable funding from the Ford Foundation and other 
donors, the Procuracy Institute seems to have been largely ignored. 
Nevertheless, the Procuracy Institute seems to have developed a more 
coherent plan and made greater headway on training issues than the 
Judges Institute. That said, certain individuals within the Judges 
Institute seem to be working on valuable projects, such as the 
information network. The Shanghai Judges Association and to some extent 
the Zhongnan training programs also seem to have produced positive 
results or at least to have begun to think about and address problems 
that the Judges Institute is only beginning to grapple with.

                      Government entities or NGOs

    Many foreign agencies have worked extensively with NGOs in other 
countries. In China's case, social organizations are more closely 
controlled and likely to be affiliated to one degree or another with a 
government organization. They are in that sense ``quasi non-
governmental organizations'' or ``Quangos.'' In some cases, an entity's 
non-government status may open up possibilities for experimentation 
that would not be possible with government entities. Such organizations 
may also be less bureaucratic.
    Nevertheless, many reforms will require support of government 
entities, either to disseminate the results or to translate the results 
into legally binding legislation, changes in the regulatory structure 
or institutional changes. Thus, in some cases, an entity's quasi-
governmental status may offer benefits.
    In any event, some projects can only be done with government 
entities. Moreover, in some cases, such as protection of lawyers, 
Justice Bureaus have proven more effective than bar associations.

                    Central versus local or regional

    Although legal reforms are often described as top-down, in fact 
many initiatives for reform come from those working on the front lines. 
Central authorities then gather information from the various local 
experiments and disseminate it. Accordingly, there is a role for both 
central and local entities.
    To date, many foreign-funded projects have been rather center-
centered. However, one of the problems is that many central laws and 
center-initiated reforms are out of step with the reality on the 
ground. As a result, the gap between law on the books and law in 
practice continues to be wide. Moreover, as noted repeatedly, academics 
and others in central agencies are not always aware of the concrete 
problems facing those in the trenches. In addition, the vast regional 
diversity and differences between urban and rural areas requires more 
input from below.
    Foreign actors might wish to fund more projects outside of Beijing 
and more projects by those on the front lines, particularly those that 
produce information or that take a different approach to a common 
problem and are likely to lead to pilot programs being expanded to 
other regions. To be sure, there is a limit to how much funding there 
can be for local projects. Thus, supporting information networks is 
particularly important. In funding empirical projects, foreign actors 
should also try to ensure that the projects are methodologically sound 
and representative of all (or at least a significant part) of China.

                           Other suggestions

      Spread the wealth. It is important to cultivate long-term 
relationships, and supporting repeat players reduces certain 
transaction costs. However, many of the usual grantees over time 
develop access to many other funding sources. It is equally if not more 
important to support young and upcoming talent, and to support projects 
that are not Beijing-centered.
      Specificity of project design and goals and a sound 
methodology. In general, projects seem to be more successful when they 
have clearly defined (and realistic) goals and the methodology is sound 
and well thought-out in advance. In some cases, giving money to certain 
highly qualified individuals or institutions based on their previous 
track record, a general proposal and an interesting and important topic 
may produce results. But on the whole, clearly defined projects are 
preferable.
      Many of the most promising possibilities for reform are 
being generated by those on the front lines. Accordingly, academics 
should be encouraged to work together with practitioners both in 
designing and executing projects. Such projects are more likely to have 
clearly defined and realist objectives and lead to concrete reforms 
that are implementable.
      Follow-up. The results of projects could often be better 
utilized or improve through follow-up programs. It is important to make 
sure that the results of projects are disseminated broadly. For 
instance, in one case, a number of judges' manuals and publications 
were produced. But is not clear whether these works are being used in 
the courts as intended. More generally, donors should follow-up major 
reform initiatives with empirical studies to ensure the reforms are 
consolidated, as noted above.
      A greater effort should be made to take advantage of what 
others are doing and to facilitate and coordinate the exchange of 
information. For instance, a number of foreign agencies have funded 
several different entities to research evidence rules. However, it is 
not clear that there have been any attempts to bring the various 
project sponsors together.
      Trips abroad for senior leaders are frankly all too often 
a boondoggle. While in some cases they may serve a valuable purpose, 
they require certain conditions. First, the agenda must specify in 
detail what issues are to be discussed and what the goals are. The 
participants should actually be knowledgeable about the issue and 
capable of effecting change upon their return (which means not too 
senior and not too junior, since senior people are often figureheads 
and junior people lack any power to change things). Prior to departure, 
preliminary research should be done by academics and others within the 
various institutes on the topics so that the participants are up to 
speed and there is a foundation for discussion. Conversely, those on 
the foreign side should be carefully selected and well-briefed, either 
by PRC or foreign experts on Chinese law who are familiar with the 
issues. Language is also an issue. Excellent translators are required--
though based on personal experience I would note that simultaneous 
translation is almost always a disaster.
      Research trips for senior and junior academics or 
researchers within institutes also should be used with care. Too often, 
the participants do not have a clearly defined research agenda or the 
language skills to get much out of a trip abroad. Moreover, in many 
cases, it would be more efficient to arrange for materials to be sent 
from various countries so that the researcher could gain a truly 
comparative perspective. The materials would then also be in China and 
available to others. To that end, donors might consider identifying and 
supporting a librarian assistant at a major university in various 
countries (i.e., several librarians, perhaps on a part-time or hourly 
basis). The costs saved from travel abroad could be used to offset the 
costs of the librarians and of obtaining and providing materials (many 
of which are now in electronic form and thus do not involve major 
shipping costs). In addition, in selecting candidates, especially for 
study abroad, a thorough review of their prior written works should be 
conducted to ensure that they have the necessary skills to do research.
      The use of foreign experts and distinguished speakers 
often suffers from the lack of understanding on the part of foreigners 
of China's system and what is happening in China; too little time for 
discussion and free exchange of ideas; language problems; and problems 
disseminating the information to a larger audience. To remedy these 
problems, foreign experts need to be extensively briefed by those who 
understand China. They should also be given a list of specific issues 
to address in advance. Where possible, they should prepare a written 
draft, which can then be translated into Chinese in advance. More time 
would then be spent on discussions and Q&A, which is often most 
valuable to the participants who have their own questions and issues 
they want addressed. Again, excellent translators are essential. The 
use of tapes and CDs or the publication of summaries may increase 
dissemination.
      Given limited resources, it is imperative that there be 
greater use of technology to collect information and disseminate 
results. The information networks are a good example, as are the CDs 
produced by the Ford Foundation showing a mock trial, and the 
Procuracy's exploration of distant learning. While distant learning and 
the use of CDs, etc. may not be as good as having small personalized 
classes taught by leading experts, there is really no choice but to 
adopt a second best approach and use more technology.
      Many research projects suffer from poor methodology. In 
part, that is a function of the difficulty of doing research in China. 
Nevertheless, there is still considerable room for improvement. One 
suggestion would be to encourage legal researchers to work with 
sociologists and others who are better trained in empirical 
methodologies. Another suggestion would be to create an Empirical 
Research Center (much like what we have at UCLA Law School) and hire 
some Ph.D.s in statistics and others with experience in designing 
survey instruments. Applicants would then be required to work with the 
Center to develop their survey instruments and to do the statistical 
analysis.

                          III. LEGAL RESEARCH

    Some agencies fund legal research, both basic and applied. Although 
academics and researchers within other entities do both types, 
academics tend to do more of the former and other researchers more of 
the latter.

            A. Academics: The Need for More Applied Research

    In the mid 1990s, the announcement of the official policy--``rule 
the country in accordance with law, establish a socialist rule of law 
state''--stimulated debate about the meaning of rule of law and the 
purpose and manner of legal reforms in China. PRC academics held a 
number of conferences on such topics and produced a number of 
theoretical and practical books and articles on rule of law. As such, 
academics have played an important role in the legal reform process. 
Nevertheless, problems remain. Much of the theorizing about legal 
reforms has been based on a Western (i.e., a liberal democratic) 
conception of rule of law and has assumed legal, political and economic 
institutions and social conditions and values that are not present in 
China and in some cases not likely to be realized in China anytime 
soon. Alternatively, more critical or nationalist legal scholars--
noting the difficulty of transplanting foreign institutions, practices 
and values to China--called for rule of law with Chinese 
characteristics or emphasized the need to rely on native resources 
(bentu ziyuan). Unfortunately, they generally failed to specify in any 
detail what these native resources were or to articulate an alternative 
theoretical basis for, or conception of, rule of law.
    As a result, those on the front line of legal reforms (judges, 
prosecutors, legislators, lawyers and officials in government 
agencies--collectively practitioners) complain that legal theorists 
have failed to provide an adequate theoretical basis for reforms. 
Practitioners claim that reforms are chaotic and out of control--there 
is no guiding plan. The failure to think through larger issues such as 
what the purpose of law in China is--or rather, what the purposes of 
law in China are--results in haphazard, inconsistent and ill-conceived 
reforms that often do as much harm as good. Practitioners also argue 
that academics are out of touch, too idealistic and unrealistic about 
the possibilities for reform. In addition, they claim that academics 
rely too heavily on the US and common law system, or that academic 
reformers latch onto one aspect of a foreign legal system without 
understanding how all of the parts relate. For example, civil trial 
reforms led to a more adversarial process as in common law states. Yet 
the reforms were not accompanied by changes in the process for pre-
trial discovery. Nor did the reformers give adequate consideration to 
the role and capacity of Chinese lawyers and their ability to 
effectively present their client's case.
    To be sure, the importance of theory for reforms should not be 
overstated. Few countries have successfully implemented rule of law in 
accordance with some preordained theoretical blueprint. Legal reforms 
are necessarily evolutionary, context-specific and path-dependent.
    Moreover, China is increasingly pluralistic. There are important 
differences in the conceptions of rule of law and the different 
emphases in the purposes of law among central leaders, local officials, 
academics and Chinese citizens. There are also differences within these 
broad categories as well. Urban and rural residents are likely to 
experience law in different ways; business people and workers are 
likely to have different demands from the legal system. And surely not 
all central leaders think alike. Thus, no single view of law or single 
theory can capture the diversity of perspectives. A variety of 
theoretical perspectives may be needed.
    The diversity of perspectives may undermine or at least complicate 
efforts to mediate conflicts of interest and develop an overall plan 
for legal reforms. Nevertheless, there is some value in clarifying 
different theoretical positions and considering their potential impact 
on legal reforms, in part to facilitate an informed debate about the 
merits of the various conceptions. Further, it is possible and indeed 
likely that some reforms will receive broad-based if not unanimous 
support, notwithstanding the differences in theoretical perspectives. 
Thus, one of the tasks is to identify common ground and opportunities 
for engagement, cooperation and progress. But that requires that 
academics and theoreticians be intimately aware of what is happening on 
the ground and of the day-to-day problems and constraints facing the 
various institutional actors. In short, they must combine theory with 
practice and base theories on a firm empirical foundation derived from 
survey work and case studies. What is needed then seems to be creative, 
constructive, empirically based theory by academics personally engaged 
in legal reforms.

                       Some specific suggestions

      It might be useful to hold a conference to (i) explore in 
a systematic and serious way possible alternative theoretical bases to 
a rule of law with Chinese characteristics; and (ii) attempt to develop 
an overall plan for legal reforms. In either case, I would suggest 
including political scientists, sociologists, economists and 
practitioners rather that just legal scholars.
      Moreover, academics themselves have complained that they 
have little impact. In part, this seems to be because academics do not 
disseminate their works widely or effectively. Accordingly, there 
should be some proposal to do more than hold a conference. At minimum, 
decisionmakers and practitioners should be invited to the conference; a 
volume should be produced; and efforts should be made to publish 
shorter essays in relevant specialized publications like Fazhi Ribao 
(Legal Daily) or other publications aimed at judges, procuratorates or 
the police as well as generally circulated newspapers. The choice of 
publisher is also important. As Chen Weidong, Professor of Law at China 
People's University, noted, he opted for Zhongguo Fangzheng Press 
instead of the more academically prestigious presses because of the 
politically sensitive nature of his research and the political 
background of the press.
      Donors might also consider funding what I would call mid-
range theoretical and comparative work. At this stage, there is little 
need to fund general studies of legal reform, civil and common law 
systems, comparative judicial systems, law and society, and the meaning 
and significance of process.\14\ Rather, these topics should be 
approached from the perspective of real issues identified by 
practitioners. For example, a number of judges and others have noted 
that the change to a more adversarial process without the accompanying 
features of a common law system (such as discovery and evidence rules, 
etc.) has led to problems. Thus, there does appear to be the need for 
academics and others to approach the issue of civil versus common law 
systems through the particular prism of China's own circumstances and 
the efforts to overhaul the civil and criminal trial process.
---------------------------------------------------------------------------
    \14\ This is not to deny the importance of such topics. However, 
given limited funding and the desire to fund projects that will result 
in concrete improvements in the legal system, academics can explore 
these topics on their own.
---------------------------------------------------------------------------
      On the whole, however, funding should be reserved for 
more specific applied research projects identified by practitioners. 
Thus, academics have played a valuable role in drafting legislation 
(Contract Law, Criminal Procedure Law, Evidence Laws, etc.). They also 
have a valuable role in researching specific hot issues: e.g., the 
right to silence; protection of witnesses; security law issues such as 
insider-trading rules, etc. Whatever issue is identified by 
practitioners, academics can research how other systems handle it, 
prepare a background report for practitioners, prepare a briefing 
report for foreign experts asked to lecture on that topic, etc.
      In general, academics should increase their cooperation 
with practitioners if they want to increase their relevance and impact. 
(Of course, some academics will simply prefer to research whatever 
interests them, without regard to its potential impact.) While that may 
mean practitioners are taking the lead in defining the research agenda, 
the research that is done is likely to have a greater impact.
      Academics should also do more empirical research, again 
where possible with practitioners, to overcome the impression that they 
are out of touch with reality or that their proposals are not feasible.
      In carrying out comparative research, academics should 
look more to Taiwan and Asian countries, particularly those at (or 
recently at) more similar levels of economic and institutional 
development.

   B. Research by the Courts (and Other Entities Like the Procuracy)

    In many ways, the challenge facing researchers in courts, the 
National Judges Institute, etc. are the mirror image of those facing 
academics. On the one hand, because of their institutional affiliation, 
they are more likely to know more about what is happening on the ground 
and be able to identify real problems and suggest practical solutions. 
But they are not as well situated in terms of resources or contacts to 
do basic or comparative research. Moreover, although a number of 
projects called for practitioners to produce written products, 
practitioners are busy and less diligent about actually carrying 
through on their writing obligations, and in many cases no product was 
produced. The written products of practitioners may also suffer from 
poor methodology and a limited perspective. In some cases, 
practitioners seem to be working on similar projects as others without 
any awareness of what has been or is being done by others.
    Again, a few points might be worth considering:

      Both academics and practitioners would benefit from 
closer cooperation. Practitioners have a better sense of what the day-
to-day issues are; academics have the benefit of more resources and 
perhaps a broader perspective. Thus, practitioners should take the lead 
in identifying pressing issues and then work with academics to come up 
with practical solutions based on China's own circumstances and the 
best practices elsewhere.
      Practitioner researchers could also play a valuable role 
in summarizing academic articles on theoretical issues or other key 
issues and publishing the summary in trade journals.
      Another possibility would be to have a column each issue 
on a particular topic (identified by those in the trenches). The column 
would summarize local experiences and solutions. Academics would be 
asked to comments as well. The National Judges Institute journal, Falu, 
or the information network would be good places to hold such a 
discussion.
      The Institute's journal, Falu, might also consider a 
section just listing and summarizing major new developments: laws, 
cases, and judicial interpretations. Interested parties could then 
raise questions or offer comments on the information network.

                        IV. JUDICIAL TRAINING

    Judicial training programs face a number of challenges: (i) there 
is an incredibly large number of judges; (ii) judges possess different 
levels of legal knowledge; (iii) judges in rural areas face different 
types of issues than judges in urban areas; judges in higher courts 
face different issues than judges in lower courts; (iv) good judges are 
busy and not often available for training; (v) training occurs in many 
different places, at different level courts; (vi) it is not clear how 
to take advantage of judges who are trained to disseminate knowledge to 
those who were not at the training sessions; (vii) it is hard to 
evaluate the impact of training; (viii) the National Judges Institute 
is bureaucratic and slow-moving; (ix) it is difficult to find people 
with the requisite theoretical, legal and practical knowledge to do the 
training; (x) there are as of yet no appropriate materials for judicial 
training.
    In light of the above:

      Donors should try to work with lower level training 
entities to develop materials and pilot programs that can be presented 
to the National Judges Institute for consideration/adoption. The 
national level entities could then offer a menu of program choices 
based on the experiences of different locales. Obviously, funding local 
training such as the Shanghai Judges Association or Zhongnan program 
has distinct limits. Such programs only reach a small number of judges 
relative to the total number of judges to be trained. Thus, the main 
value of such programs lies in their ability to serve as pilot programs 
and to experiment with different teaching methodologies and approaches. 
Unfortunately, at least in the case of Zhongnan, teaching method still 
seems to be a lecture format largely by academics using materials 
designed for undergraduates, with little input from participants.
      Different courses should be developed for different types 
of judges. While there may be a core part of the course that is similar 
(such as a general theoretical section, the part on the role of judges 
in a modern legal system or a section on professional ethics), much of 
the content will vary. The courses can be divided along the following 
lines: (i) presidents and vice presidents versus other judges; (ii) 
different courses for those who need remedial education and those who 
do not--it should be noted that the need for basic remedial courses 
should diminish over the next 10 years; (iii) courses should also have 
a general component and then a specialized component depending on the 
judge's special area of responsibility: civil, criminal, family, IP, 
etc.
      As for content, it seems there are four main components: 
(i) legal theory--the role of a judge, what judicial independence 
means, etc. (the need for this type of theory should decrease over the 
next 10 years as legal education improves and the judiciary's role in 
society becomes clearer); (ii) general techniques of judging: legal 
reasoning, writing judgments, running a trial, managing evidence, etc.; 
(iii) professional ethics; and (iv) substantive law. Surprisingly, a 
number of judges indicated that they found the general legal theory 
refreshing and eye-opening.
      As for instructors, Zhongnan and the National Judges 
Institute have relied on leading academics and judges to provide much 
of the content. Although the NJI has instructors, they actually do 
little instructing, mainly because they are young and inexperienced and 
cannot command the attention and respect of the judges who come for 
training. Obviously, relying on top academics and judges is 
problematic: they are busy; they have only limited time to spend on 
training; and the time they spend on training takes them away from 
research or court business. Accordingly, these valuable resources 
should be used wisely. For example, leading judges and academics should 
play a role in designing an effective curriculum and course materials. 
Second, their lectures should be taped or transmitted through distant 
learning means. It makes little sense to run around to five different 
places giving the same lecture. To be sure, much of the value comes 
from discussion. However, it appears that few instructors leave much 
time for discussion anyway. Moreover, it may be possible through 
distant learning techniques or the use of the online information 
network to make the process more interactive.
      There should also be more efforts to train up the 
trainers, particularly at lower level courts, and to provide them with 
practical guidance for carrying out their jobs.
      Some judges have also complained that instructors may not 
be sufficiently knowledgeable to address the specific legal issues they 
are dealing with in their cases. Posting such questions on the 
information network might provide some interesting discussions. In 
general, as apparently is the case in other countries, most of the 
training should be done by former judges or judges who are rotated into 
and out of the training program.
      Relying on materials used in law schools to teach 
undergraduates is clearly not appropriate. Materials should be more 
practical and interactive. It might be useful to start with materials 
used in night schools. The materials from the Procuracy Institute might 
also be useful. Song Bing thought that one translated work on legal 
reasoning and some of He Weifang's collected essays on the judiciary 
and social justice could be useful.
      Materials and courses in general should also be designed 
to teach judges general skills such as legal reasoning and how to 
analyze issues. They should also serve the purpose of teaching judges 
how to do research (where to find laws, use data bases, etc.). Clearly, 
with the rapid pace of change in existing laws and the development of 
new areas of law, judges will regularly be confronting new issues that 
require the ability to master new bodies of law. Over time, there will 
inevitably be more research tools available (annotated law data bases, 
etc).
      In general, existing programs suffer from the lack of 
input from participants and a lecture style of teaching. Judges should 
be encouraged to submit questions from their own cases in advance. 
During training, the instructor should try to facilitate discussion of 
the tough issues (rather than simply providing ``the answer''). Cases 
provided by judges can also provide the basis for a spontaneous 
demonstration of how to do research and analyze new laws.
      Once the session is concluded, participants should be 
asked to fill out a form evaluating the instructor, the course, the 
materials, etc., and offering suggestions for improvement.
      To increase the incentive, participants should be 
required to take an exam.

                 A conference on training and education

    It may be time to hold a major international conference on training 
and education in light of the passage of the unified exam requirement 
and the accumulated experiences with judicial training. The conference 
could focus on training of judges and procuratorates. The main invitees 
would be foreign experts from training institutes in other countries. 
In addition, some academics could be invited to discuss basic legal 
education.
    To be useful, there would need to be a specific agenda. Foreign 
China law scholars and PRC academics/judges could prepare a background 
report on China's situation. The foreign experts would be asked to 
prepare a general introductory report on their institutes and 
practices. The Chinese participants would then select specific topics/
issues. The foreign academics would be asked to prepare written reports 
in response to the specific topics/issues.

                 V. CENTRALIZED LEGAL REFORM COMMITTEE

    Many practitioners and academics alike suggest that a rule of law 
or legal reform committee (or working group) is needed. They argue that 
reforms are out of control. In some cases, local governments are 
forging ahead with ill-conceived plans. For example, some academics 
criticized one region's experiments with the right to silence for being 
in violation of the Criminal Procedure Law and counterproductive. In 
other cases, some regions may come up with solutions to problems 
confronted by other localities but the information is not disseminated. 
The center, for its part, often announces reform initiatives that are 
out step with local conditions. As noted, central authorities also fail 
to follow up on reform initiatives to verify that they are being 
implemented. Conflicts of interest among different entities leads to 
conflicting reforms that undermine each other and produce confusion at 
the lower levels.
    Accordingly, the committee would be charged with, inter alia, 
coordinating reforms, gathering and disseminating information, 
mediating conflicts among different interest groups and entities and 
devising an overall, long-term plan for reforms. While such a committee 
might play a positive role, it is no panacea. Indeed, it raises a 
number of important issues.

           What type of committee: Party, government or NGO?

    Some people have suggested the committee be organized as a civil 
organization while others argue the committee should be established 
under the NPC. The arguments for a civil organization are that an NGO 
might be freer to discuss many of the sensitive political issues 
associated with legal reforms, such as judicial independence. Moreover, 
an NGO think tank could float ideas in the media and among State actors 
and build support for controversial reforms.
    On the other hand, one of the disadvantages of an NGO think tank is 
that it might not have a sufficiently strong and identifiable political 
base to be effective in getting its reform agenda implemented. As 
noted, academics have complained about their lack of impact on China's 
decisionmakers. This problem might be alleviated to some extent by 
including representatives from NPC, SPC, Supreme People's Procuratorate 
(SPP), Ministry of Public Security, Ministry of Justice (MOJ), etc. 
Nevertheless, the organization would not have as firm a political base 
as it would if it were established under the NPC.
    Some have suggested that an appropriate model might be Tigaisuo (a 
government think tank). However, Tigaisuo was closely associated with 
Zhao Ziyang, and consisted of economists with a fairly clear market-
oriented preference. In contrast, there are no obvious top leaders to 
serve as patron of the Legal Reform Committee. Moreover, there is 
likely to be more division in values and perspectives among the members 
of any such Committee than in the case of Tigaisuo. For example, the 
Committee would presumably include representatives from the NPC, SPC 
and SPP, MOJ, as well as academics, lawyers and representatives from 
public security. Yet one of the reasons the Committee is needed is the 
existing conflict of interest between these entities. Thus, there is 
less likely to be common ground on important issues than in the case of 
Tigaisuo.
    A committee under the NPC would provide a more solid political 
base. However, the Committee might then become very bureaucratic. It 
might not be able to address sensitive issues as readily. Moreover, the 
NPC is itself a player. For instance, one of the current conflicts is 
between the NPC and the courts with respect to supervision. The NPC and 
the SPC are also currently in tension with respect to legal 
interpretation. The recent SPC reply making the constitution 
justiciable creates the potential for even greater conflict if the SPC 
tries to assume more of a role in constitutional interpretation. More 
generally, it is doubtful that the NPC has sufficient political 
authority to mediate conflicts between the SPP and the SPC, for 
instance. To be sure, the NPC (through Fagongwei, the NPC's law-
drafting committee) did play a coordinating role in mediating conflict 
between the courts and procuratorates with respect to interpretation 
and implementation of the Criminal Procedure Law. However, whether it 
would have sufficient authority to mediate more fundamental conflicts 
that could result in shifts in the balance of power between the two 
entities--for example with respect to the procuracy's right to 
supervise the court--is more doubtful.
    As the ultimate authority, the Party might seem like a logical 
place for such a Committee. Perhaps the Political-Legal Committee could 
take on the role, as suggested in the past by some PRC academics. A 
Party-based Committee might be better positioned to force recalcitrant 
entities to give up some of their powers. Moreover, one of the issues 
is the Party's role in the legal system. A Party-based Committee might 
be better situated to oversee changes in the Party's role. On the other 
hand, housing the Committee under the Party would probably result in 
the Committee pursuing a more conservative (what I would call a Statist 
Socialist) agenda than would otherwise be the case.
    Further, whether any entity has sufficient knowledge how best to 
restructure and the authority to bring such change about may be 
questioned. Thus, arguably the primary benefit of the committee might 
be to create a forum for discussing the issues, publicizing the 
problems and debating possible solutions. At some point, the problems 
may become so severe that all parties recognize a solution is 
necessary, thus making change possible.
    The best approach might to establish both an NGO think tank and a 
Committee under the NPC. The relationship between them could be one of 
loose association, with some people being members of both to facilitate 
transmission of information and coordination and cooperation.

                  The need for realistic expectations

    One can appreciate the desire for an overall, coherent plan for 
reforms. Clearly, a Committee could be useful in providing some 
structure to reforms, gathering and disseminating information, 
coordinating reforms across departments and ensuring that reforms work 
together as a package rather than undermining each other, and 
sequencing reforms so that powers granted an entity are consistent with 
its level of development and capacity. The Committee could also mediate 
conflicts of interests in some cases. At minimum, it would provide a 
forum for different government entities to explain their positions and 
look for common ground and ways to resolve conflicts.
    Yet an overall reform plan would be difficult to devise. Arguably, 
the Committee's task in devising such a plan would be easier if it were 
able to draw on various theoretical models for reform. As noted, it is 
doubtful that any single theory will prevail given the diversity of 
perspectives of the fundamental purposes of law and differences in 
social and political philosophies. In any event, any such theory would 
be too abstract to be of much use. However, if theoreticians are able 
to come up with various alternative theories of rule of law, they might 
be useful in at least clarifying where there is common ground and where 
there are differences.
    Even assuming it were possible to achieve consensus on the rough 
outline of some long-term reform agenda, the agenda would necessarily 
be fairly abstract and subject to revisions as the situation evolved. 
While there is no shortage of technical issues requiring attention, for 
example, identifying the issues and the challenges and the 
possibilities for improvement is largely something that must come from 
those on the front lines. This is not to deny the value of long- term 
planning. Pan Wei and others have sketched a long-term rule of law 
agenda that clarifies the priorities and sets out a reasonable time 
table, and thus serves a useful purpose for guiding reforms. However, 
Pan Wei is a political scientist. His broad outline could be filled in 
to some extent by legal scholars and practitioners with a better 
understanding of the changes in laws, institutions and practices that 
are required to implement rule of law.

                               CONCLUSION

    As a foreign observer, I do not pretend to have sufficient local 
knowledge to offer detailed suggestions about specific areas of reforms 
or specific suggestions as to which reforms are most feasible or likely 
to succeed. Accordingly, I have tried to present an overview of 
reforms, leaving those with more detailed knowledge to suggest specific 
reforms.
    Clearly, one of the difficulties facing donors is that there is no 
shortage of deserving funding opportunities. One could make a good case 
for funding theoretical projects and applied projects, academics and 
practitioners, central or local projects, and any or all legal 
institutions. Moreover, in many cases, it is hard to assess in advance 
which projects are more deserving or likely to have an impact. Indeed, 
even looking back, it is often difficult to measure the impact of 
specific projects. For a long time, exchange programs were considered a 
failure because many people failed to return to China. But in recent 
years, many of those who stayed abroad are now making their way back to 
China, often bringing with them a much more sophisticated understanding 
of foreign legal systems and much greater technical skills than they 
would have brought back had they returned immediately. Similarly, it is 
hard to say how much a senior official will get out of a trip abroad. 
While there may be no immediate applications, such trips might result 
in a more fundamental change of attitude that results in the official 
adopting a more positive approach to reforms.
    Nevertheless, decisions must be made, even if based on limited 
knowledge. I would emphasize the following points:

      The focus should continue to be institution-building, but 
donors may wish to shift focus from the courts to the procuracy and 
public security or at least adopt a more balanced approach where 
projects are chosen based on their merits rather than compliance with 
some predetermined agenda. In particular, donors may wish to support 
cutting edge pilot programs that could then be supported by other 
donors if they are successful.
      While theoretical projects in some cases may be worth 
pursuing, in general projects should focus on concrete issues 
identified by practitioners, with academics playing a more 
complementary role. Projects that involve cooperation between 
practitioners and academics should be strongly encouraged.
      Projects should have a firm empirical basis, and be 
followed up by empirical studies to ensure that results are 
consolidated and to revise strategy and respond accordingly if need be.
      Donors should strive to increase information gathering 
and exchange, particularly among academics and those on the front 
lines, and among different government entities and other entities that 
play a role in the legal system.


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