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In 1978, the Chinese leadership pronounced that the establishment of a legal system was necessary both as an instrument and as a guarantee for the intended transformation of the ways of economical and social life ("modernization"). Since then, Chinese leaders have been increasingly confronted with the duality inherent in law: law as an instrument of political power and as an agent for restraining this same power. Legal theory at first propagated the need to overcome "rule by men" (renzhi) and to establish instead fazhi. In view of growing official appreciation of the value of a stable legal system, discourse was extended more and more to the role of law as a guarantee for political participation, control of political power and protection of human rights.
II. "Fazhi" versus "renzhi": The legal system as
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a universal standard
Legal theory in post-Mao China established itself in the negation of "rule by men" (renzhi), which is considered to be the main cause of the diverse political catastrophes since 1957, and in the support of fazhi aiming at the elimination of arbitrariness and decisionmaking solely by individual leaders. The debate on fazhi and renzhi, which took place in the beginning of the 1980 (Keith 1994: 8 ff) referred to a pair of concepts which had been formed during antiquity and which reproduce by way of two catchword the positions taken by the advocates of Confucianism (rujia) and legalism (fajia) during their debates on methods of government and social order in the sixth to the third centuries B.C. The legalists favoured laws as the only efficient means to carry through their ideas of government and reform. The participants in the contemporary debate also looked at fazhi as governing by means of State-made legal norms linking to it the concept of the instrumentalism of laws for political ends. Unlike the historical constellation, fazhi was now also related to the highest political authority; since 1982 the statute of the Communist Party stipulates that "the Party has to act within the limits of the Constitution and the laws". "By means of laws" (yi fa) or "on the basis of laws" (yi fa) "to govern the State" aimed now at the establishment of the laws as an universally binding standard without exception.
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