Fazhi in China
Original Contribution by Robert Heuser, Dr. iur., Professor for China Studies, University of Köln
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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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The discourse of fazhi in general and of the relevant constitutional institutions in particular is affected by different expectations of the governing party on the one and legal theorists on the other side. Whereas the party and parts of legal theorists look at fazhi essentially in terms of efficiency, security and predictability ("rule by laws"), the rights protection function of fazhi was however not overlooked since the beginning of the discourse (Li Buyun 20042006) and continues to be emphasized. Peerenboom distinguishes several "versions" of the rule of law as they are discussed in Chinese theoretical literature, i. e. "liberal democratic", "communitarian", "soft-authoritarian" and "statist socialist" versions, emphasizing respectively civil and political liberties or stability and economic growth (Peerenboom 2004). The "leading sound" is produced by governmental statements presenting fazhi in terms of establishing a legal system "with Chinese characteristics" in order to improve administrative efficiency (including the administration of justice), regulating markets and safeguarding human rights (Information Office 2008) "in conjunction with national conditions" (Li, Li 2008, 57 f.). This is assisted by scholarly deliberations suggesting a "consultative rule of law regime" (mainly as an anti-corruption mechanism) while avoiding democratization (Pan 2006) and by many studies focusing on aspects of improvement of administrative work as a consequence of "increased rules and regulations" (Chen 2008).
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