Public mind

To be is to be thought of as being (Parmenides). To be a self is to think of oneself as a self (Descartes).

The social species

The landscape of the human world is changing. A social animal is becoming a social species. Human social consciousness is becoming the social consciousness of the whole human species. Among all the species of social animals, one species is becoming the social species.

Biological history tells the story of the evolution of the human species by natural processes. Human history is the story of the self-evolving of the human species through the work of the human mind. The self-evolving of the human species is a by-product of the self-ordering of human beings, within the private mind of each human being and within the public minds of all human societies.

The three co-ordinates of our self-consciousness – as individual human beings, as intermediate societies, as the society of all-humanity – are the ordering structures of the ceaseless process of our self-constituting as persons and as societies. As the human species re-creates itself as the social species, the human mind faces new challenges, new in kind and new in scale, at every level of human self-constituting, at every level of human self-consciousness.

Social pathology

We are excited by the new possibilities of human self-constituting at the level of the species. Unused reserves of human potentiality can be released and realised, bringing into fruitful collaboration new levels of human energy, creativity, intelligence, to serve the highest aspirations and the highest ideals of all-humanity. We know that we will be writing a new page in the better story of human self-evolving.

The preceding chapters have focused on rule of law in China: its evolution, competing conceptions of it, institutional obstacles to its realization, and its role in economic development. Yet many who invoke rule of law (particularly in the West) do so not in the name of providing the necessary predictability required in a market economy but rather in relation to two of the other hallmarks of modernity discussed in the Introduction: democracy and human rights. In this chapter, therefore, I discuss the relationship between rule of law, democracy, and human rights.

After a brief summary of various conceptions of democracy and the main arguments for and against implementing democracy in China at this time, I turn to the debate surrounding the relationship between democracy and economic development. Though the empirical evidence is mixed on the general issue of their relationship, there is ample evidence that authoritarian regimes may achieve sustained economic growth, and that economic development and rule of law need not lead to liberal democracy, at least for a long time. I argue that, for a variety of reasons, the short-term prospects for democracy in China are not promising. In the long run, however, China is likely to become democratic, though probably not a liberal democracy. Rather, the more likely outcome will be a nonliberal soft authoritarian or communitarian form of democracy. Rule of law may serve as an intermediate step along that route.

With the death of Mao in 1976, China began to steer a new course. Many Party leaders, having suffered personally and severely from the arbitrary and lawless acts of Red Guards during the Cultural Revolution, were eager to advocate greater reliance on law as a means of preventing the reoccurrence of such policy-driven excesses. In addition, legal reforms were seen as a way for the Party, whose image had been badly tarnished, to regain legitimacy both domestically and abroad.

Most importantly, however, Deng Xiaoping and other leaders decided that the major problem confronting China was not class struggle but economic growth. China was declared to be in the primary stages of socialism.Before China could reach the hallowed ideal of a communist society, it would first have to pass through a capitalist phase. One of Mao's mistakes was to try to leapfrog over the capitalist stage. Accordingly, Deng announced that to get rich was glorious and threw open the doors to foreign investment. The success of the reforms, and especially China's ability to attract foreign investment, hinged on improvements to the legal system and greater reliance on law. “A market economy is a rule of law economy” became the rallying cry. At the most basic level, law is necessary to create and maintain a modern market: to establish property rights and a contract regime; ensure market equality and maintain market order by protecting against fraud, unfair competition, and monopoly; separate government from enterprises; establish and regulate financial and capital markets; and so on.

The hallmarks of modernity are a market economy, democracy, human rights, and rule of law. Not surprisingly, China first began to grapple with the need to reform the legal system in earnest during the Qing dynasty as part of its attempt to come to grips with modernity. Although those early reforms could not gain a foothold in the chaotic civil war conditions of the Republican era, and law subsequently took a back seat to politics during much of the Mao period, legal reforms and rule of law again became a hot issue when China emerged from the Cultural Revolution in the late 1970s and Deng Xiaoping announced his ambitious platform to modernize China. Twenty years of economic and legal reforms have only served to raise the temperature.

Nowadays, it is virtually impossible to open any Chinese newspaper without seeing reference to rule of law. Signs painted on buildings in the countryside proclaim the need to act in accordance with law. Flyers posted in cities urge passersby to steadfastly uphold the law. Scholars have produced literally hundreds of books and articles on the topic in the last ten years. And in 1999, the Constitution was amended to expressly provide for the establishment of a socialist rule-of-law state.

On the other hand, the initial reaction of many members of the general public to any attempt to link rule of law to China is one of shock and amusement. The less informed genuinely if bemusedly still question whether China even has laws.

In this chapter, I present a brief and necessarily simplified survey of China's legal theories and systems from the pre-Han era to the beginning of the reform era in 1978. The purpose is threefold. First, for many rule of law means a Liberal Democratic rule of law. It is difficult for many modern Westerners in particular to imagine rule of law being embedded in a nonliberal context, and as a result, for law to play a different role in society, such as state-strengthening rather than the protection of individual rights. Yet the logic and appeal of the Statist Socialist, Neoauthoritarian, and Communitarian models are rooted in China's own traditions. By exploring the historical, political, and philosophical backdrop against which reforms are occurring, it is easier to understand how rule of law in China could develop along a different path, and to appreciate why it is unlikely that reforms are likely to lead to a Liberal Democratic rule of law.

Second, some skeptics in China argue that rule of law is the historical product of modern Western capitalist democracies at odds with China's own traditions. Thus, they suggest, it cannot be transplanted to China. At minimum, rule of law will need to be adapted to China's own circumstances. It must develop a rule of law with Chinese characteristics that takes advantage of China's own native resources. To make sense of these arguments requires some understanding of China's legal traditions.

One of the main motivating forces behind China's turn toward rule of law has been the belief that legal reforms are necessary for economic development. In emphasizing the importance of law to economic development, Chinese legal scholars and leaders align themselves with a long tradition of Western legal scholars, economists, and development agencies from Weber to the World Bank who have argued that rule of law is conducive to economic growth. A 1997 World Bank report, for instance, claimed that “countries with stable government, predictable methods of changing laws, secure property rights, and a strong judiciary saw higher investment and growth than countries lacking these institutions.”

The assumption that rule of law is necessary to sustain economic development has not gone unchallenged, however. Critics come in two general kinds: generalist and China-specific. Generalist critics question both the theoretical basis and the empirical data for asserting that rule of law leads to economic growth. Even assuming rule of law is normally integral to economic development, China-specific critics question whether law has had much to do with China's remarkable growth in the last twenty years, and suggest that China may be an exception to the general rule.

If the critics are right and rule of law is not necessary for sustained economic growth, at least in China, then one of the ruling regime's main incentives for promoting legal reforms will be undercut, calling into question the future of rule of law in China.