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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

CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

LEGISLATIVE BRANCH COMMISSIONERS

House Senate

JIM LEACH, Iowa, Chairman

DOUG BEREUTER, Nebraska

DAVID DREIER, California

FRANK WOLF, Virginia

JOE PITTS, Pennsylvania

SANDER LEVIN, Michigan

MARCY KAPTUR, Ohio

SHERROD BROWN, Ohio

CHUCK HAGEL, Nebraska, Co-Chairman

CRAIG THOMAS, Wyoming

SAM BROWNBACK, Kansas

PAT ROBERTS, Kansas

GORDON SMITH, Oregon

MAX BAUCUS, Montana

CARL LEVIN, Michigan

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)

(III)

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

(1)

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 CongressionalExecutive 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.

2

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.

3

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]—

4

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 unVerDate 11-MAY-2000 15:32 Jun 23, 2003 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 87399.TXTT China1 PsN: China1
5

derstandable 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,

6

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,

7

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.

8

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.

9

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.

10

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.’’

11

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.

12

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

13

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.

14

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.

15

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 arVerDate 11-MAY-2000 15:32 Jun 23, 2003 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 87399.TXTT China1 PsN: China1
16

gued 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 centrallocal 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

17

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 corVerDate 11-MAY-2000 15:32 Jun 23, 2003 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 87399.TXTT China1 PsN: China1
18

ruption, 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,

19

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

20

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 principalagent 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

21

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

22

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 quasiNGOs. 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 independentminded, 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.

23

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,

24

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 antidemocratic 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

25

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.

26

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 lowerlevel 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

27

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.

28

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.]

(29)

A P P E N D I X

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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). 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 proPREPARED STATEMENT

PREPARED STATEMENT OF RANDALL PEERENBOOM1

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. 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

31

mote 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.

32

3The 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 <http://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. 4See 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). 5See also Table 1 summarizing some of the key differences.

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.

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

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

33

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 requireVerDate 11-MAY-2000 15:32 Jun 23, 2003 Jkt 000000 PO 00000 Frm 00037 Fmt 6601 Sfmt 6621 87399.TXTT China1 PsN: China1
34

ments 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?

35

6For 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.

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

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

36

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.

37

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

38

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

Type of Legal Sys- tem Economic Regime Political Regime Rights Purposes of Rule of LawInstitutions/Prac- tices Rules

Liberal Democratic Rule of

Law.

Free market .... Democratic

elections at

all levels;.

Liberal ............ Limited government.High degree of

separation

between law

and politics.

Protection of

civil and

political

rights; no

registration

requirements for

social

groups;

strong

rights to

protect accused in

criminal

cases.

Minimum government interference

and regulation.

Neutral state .. Emphasis on

civil and

political.

Prevent government arbitrariness.

Independent

and elected

legislature.

Clear distinction between public and private.

Limited state .. Deontological

view of

rights as

antimajoritarian trump

on social

good.

Protect individual

rights.

Autonomous

and independent judiciary, with

life tenure

for judges,

appointment

and removal

relatively

non-politicized.

Administrative

discretion

limited.

Civil society as

independent

of state.

Freedom privileged over

order.

Predictability

and certainty: economic

growth,

allow individuals to

plan affair.

Administrative

law: mechanisms for

reining in

discretion,

capable of

holding

even top

leaders accountable;

public participation;

public can

hold government officials accountable

by throwing

government

out of office.

Autonomy over

social solidarity and

harmony.

Dispute resolution, protect

property

rights largely through

formal legal

system.

Independent

legal profession.

39

Table 1.—A Comparison of the Four Ideal Rule of Law Types Plus Rule by Law—Continued

Type of Legal System Economic Regime Political Regime Rights Purposes of Rule

of Law

Institutions/Practices Rules

Freedom of

thought and

right to

think over

need for

common

ground and

right thinking on important social issues.

Government efficiency and

rationality.

More attention

to rights

than character-building, virtues

and duties.

Legitimacy.

Chinese

Communitarian Rule of

Law.

Market economy; Managed capitalism;.

Democratic,

multiparty

elections.

Communitarian Balance between law

as means of

strengthening state

and limiting

state.

Moderate to

high degree

of separation between law

and politics.

Broad laws to

protect

state: state

secrets; endangering

state.

More government intervention.

Reject neutral

state.

Emphasis on

indivisibility

of rights,

collective

rights.

Stability .......... Independent

and elected

legislature.

Illiberal laws:

limit civil

society,

freedom of

expression:

registration

of social

groups; or

privilege

group—no

exclusion of

tainted evidence.

Public/private

division not

as clear.

Larger role for

state.

Economic

growth at

expense of

rights (liberty tradeoff).

Prevent government arbitrariness.

Autonomous

and independent judiciary, with

life tenure

for judges,

appointment

and removal

relatively

non-politicized; arguably likely

to decide

cases based

on substantive

agenda.

40

Table 1.—A Comparison of the Four Ideal Rule of Law Types Plus Rule by Law—Continued

Type of Legal System Economic Regime Political Regime Rights Purposes of Rule

of Law

Institutions/Practices Rules

More administrative discretion.

Civil society,

but limits;

groups free

to go own

way subject

to general

limits, although

some

groups, particularly

commercial

associations, may

still establish corporatist or

clientelist

relations

with government, but

soft or societal form of

corporatism.

Utilitarian or

pragmatic

conception

of rights.

Protect individual

rights.

Administrative

law: mechanisms for

reining in

discretion,

capable of

holding

even top

leaders accountable;

but more

deference to

agencies in

policymaking,

emphasis

on efficient

government

balanced to

some extent

by need to

protect individual

rights; opportunities

for public

participation

in rulemaking and

interpretation; public

can hold

accountable

by throwing

out of office.

Stability and

order privileged over

freedom.

Predictability

and certainty: economic

growth,

allow individuals to

plan affairs.

Independent

legal profession,

though perhaps monitored by

state agency such as

ministry of

justice.

Social solidarity and

harmony as

important if

not more so

than autonomy.

Government efficiency and

rationality.

41

Table 1.—A Comparison of the Four Ideal Rule of Law Types Plus Rule by Law—Continued

Type of Legal System Economic Regime Political Regime Rights Purposes of Rule

of Law

Institutions/Practices Rules

Freedom of

thought and

right to

think limited by need

for common

ground and

consensus

on important social

issues.

Dispute resolution, property rights

protected

through formal and informal

mechanisms, more

reliance on

corporatist

and

clientelist

ties.

Attention to

characterbuilding,

virtues and

duties as

well as

rights.

Legitimacy.

Neo-Authoritarian Rule

of Law.

Market economy.Single party

rule, No

elections or

only at low

level or appearance of

genuine

elections

but limits

on opposition party.

‘‘Asian Values’’

or

communitarian.

Balance between law

as means of

strengthening state

and limiting

state favors

strengthening.

Moderate separation between law

and politics.

Broad laws to

protect

state and

social order:

state secrets law;

endangering

state interests.

Managed capitalism.Reject neutral

state.

Emphasis on

indivisibility

of rights,

collective

rights.

Strengthen:

Emphasis

on stability.

Legislature not

elected.

Illiberal laws:

limit civil

society,

freedom of

expression:

registration

of social

groups; or

privilege

group—no

exclusion of

tainted evidence.

More government intervention.

Even larger

role for

state.

Economic

growth at

expense of

rights (liberty tradeoff).

Predictability

and certainty:

mainly for

economic

growth, less

to allow individuals to

plan affairs.

Judicial independence

may or may

not be limited.

42

Table 1.—A Comparison of the Four Ideal Rule of Law Types Plus Rule by Law—Continued

Type of Legal System Economic Regime Political Regime Rights Purposes of Rule

of Law

Institutions/Practices Rules

Public/private

division not

as clear.

Civil society,

but limits,

perhaps

corporatist

or clientelist

relations

with government.

Utilitarian or

pragmatic

conception

of rights.

Government efficiency and

rationality.

Administrative

law system,

capable of

checking

government

officials,

professional

civil service;

more emphasis on

rational

government

than protecting individuals;

more deference to

government

in policymaking; opportunities

for public

participation

and monitoring.

More administrative discretion.

Stability and

order privileged over

freedom.

Dispute resolution, property rights

protected

through formal and informal

mechanisms, more

reliance on

corporatist

and

clientelist

ties.

Legal profession supervised by

MOJ.

Social solidarity and

harmony

over autonomy.

Legitimacy.

Freedom of

thought and

right to

think limited by need

for common

ground and

consensus

on important social

issues; limits on right

to criticize

government.

Limits: Government must

act in accordance

with law.

43

Table 1.—A Comparison of the Four Ideal Rule of Law Types Plus Rule by Law—Continued

Type of Legal System Economic Regime Political Regime Rights Purposes of Rule

of Law

Institutions/Practices Rules

Attention to

characterbuilding,

virtues and

duties as

well as

rights.

Law to prevent

government

arbitrariness.

Protect individual

rights, but

not priority

and limited.

Statist Socialism Rule of

Law.

Market economy.Single party

rule, no

elections or

only at lowest levels.

Emphasis on

subsistence,

economic

growth at

expense of

rights (liberty tradeoff).

Emphasis on

strengthening state.

Moderate to

low separation between law

and politics.

Broad laws to

protect

state: state

secrets; endangering

state.

Much government regulation;.

Reject neutral

state.

State sovereignty.Stability .......... Legislature not

elected;

Party influence on

lawmaking

process.

Illiberal laws:

limit civil

society,

freedom of

expression:

registration

of social

groups; or

privilege

group—no

exclusion of

tainted evidence; administrative

penalties

such as reeducation

through

labor.

44

Table 1.—A Comparison of the Four Ideal Rule of Law Types Plus Rule by Law—Continued

Type of Legal System Economic Regime Political Regime Rights Purposes of Rule

of Law

Institutions/Practices Rules

Public-ownership.Much larger

role for

state.

Utilitarian or

pragmatic

conception

of rights.

Predictability

and certainty: economic

growth.

Functional

independence of judiciary; no

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 civil

society, high

level of corporatist or

clientelist

relations

with government, hard

or statist

form of

corporatism.

Rights as

grant from

state.

Law as way

means of

enhancing

government

efficiency

and rationality.

Legal profession: subject to political requirements, partial independence,

mainly due

to corporatist nature of relationship

with MOJ.

Stability and

order privileged over

freedom.

Dispute resolution, property rights

protected

through formal and informal

mechanisms, more

reliance on

corporatist

and

clientelist

ties.

Administrative

law: more

discretion;

more responsive to

Party policy;

system imposes weak

limits on

top leaders,

limited public participation in

rulemaking,

interpretation and

implementation; limited

ability for

media and

public to

monitor.

45

Table 1.—A Comparison of the Four Ideal Rule of Law Types Plus Rule by Law—Continued

Type of Legal System Economic Regime Political Regime Rights Purposes of Rule

of Law

Institutions/Practices Rules

Social solidarity and

harmony

over autonomy.

Legitimacy.

State prefers

unity of

thought 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.

Some limits on

state.

Attention to

characterbuilding,

virtues and

duties as

well as

rights

Government

must act in

accordance

with law,

but accept

limits begrudgingly.

Prevent government arbitrariness.

Protect individual

rights, but

not priority

and limited

view of

rights.

Rule by Law ..... Could be

planned

economy,

free market,

or managed

capitalism.

Single party

rule, no

elections.

Emphasis on

subsistence,

economic

growth at

expense of

rights (liberty tradeoff).

Law is tool to

serve interests of the

state; Party’s role not

defined in

law; no

meaningful

legal limits

on rulers.

No minimal

separation

between law

and politics.

Law relatively

unimportant; much

of day-today governance by

policies.

46

Table 1.—A Comparison of the Four Ideal Rule of Law Types Plus Rule by Law—Continued

Type of Legal System Economic Regime Political Regime Rights Purposes of Rule

of Law

Institutions/Practices Rules

Government

intervention

high.

Reject neutral

state.

Socialist conception of

rights as

bourgeois;

emphasis

on duties,

particularly

duties to

state.

Law enhance

government

efficiency.

Party policies

supplant

and trump

laws.

Absence of

many major

laws—

criminal

law, contract law,

civil procedure law

Public/private

distinction

non-existent

or unimportant.

Totalitarian or

authoritarian state.

Rights as

grant of

state.

Law not meant

to protect

individual

rights.

Legislature not

elected, just

rubber

stamp.

Laws ignored

Control by administrative

policy and

fiat.

No or very limited civil

society,

state dominated corporatist arrangements.

Rights exist as

programmatic

goals only,

no real protection of

rights.

Dispute resolution, but

many disputes settled administratively or

by Party

leaders

rather than

in courts.

Courts not

independent;

Party determines outcome of

specific

cases; adjudicative

committee

used to enforce Party

line; courts

serve Party

interests.

State sovereignty.Heavy reliance

of mediation

to resolve

disputes

‘‘among the

people’’,

formal legal

system used

to suppress

enemies.

Legal profession: lawyers as

workers of

the state;

no independence;

work in

state firms;

limited

rights to

defend accused.

47

8The 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.

Table 1.—A Comparison of the Four Ideal Rule of Law Types Plus Rule by Law—Continued

Type of Legal System Economic Regime Political Regime Rights Purposes of Rule

of Law

Institutions/Practices Rules

Social solidarity and

harmony

over autonomy.

Party members

not subject

to courts.

Administrative

law: main

purpose 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.

48

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)

49

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.

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

50

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.

51

10This 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. 11See Peerenboom, China’s Long March Toward Rule of Law, chapter 5 (Cambridge University Press, 2002).

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

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.

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

52

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.

53

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

Continued

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

54

the internal walls within the typical programming structure so that those responsible for legal

affairs and economic/public finance could fund collaborative projects. 13There are some exceptions: The Canadian International Development Agency and Sweden

have done some projects on prosecutors.

are appointed—or to collect information about such experiments to the extent that

they are already occurring—would also be worth exploring.

(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

55

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.

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,

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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

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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

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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.

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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, contextspecific 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.

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14This 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.

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.

• 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.

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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

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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.

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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.

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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.

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• 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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