Rule of Law: Some Nuances



“Rule of law” in Chinese (法治, fazhi) does not mean the same as in English. This paper compares three kinds of nuances: different definitions of law, different relations between law and ethics, and different political implications.

 

Definitions: LAW and 法/fa

To clarify the different definitions, this article start with following conclusion: the concept of “law” in China is much less authoritative than that in the West, because law in China is neither “divine” nor “natural.”

In traditional Europe, the term “law” has a connotation of “divine” and/or “natural.” Yet the Chinese character “法, fa” means regulative methods to solve current problems. “Fa” often combines with another character to form a phrase “办法, banfa”, which means an approach to deal with a trouble. In short, “fa” is a pragmatic solution, albeit regulating.

In the modern West, people’s representatives make laws, which replaces at large the righteousness of the God or natural law with the rights of the common people. Yet the “upper level” LAW still suggests a kind of absolutist and/or unconditional righteousness.

However, Chinese continue to support that the governing body make and enforce laws. Due to the tradition of blurred and unstable social cleavages, the Chinese government is supposed to be “neutral” among social strata, not representative to any one of them. The traditional Chinese legal system belonged to neither the British Common Law System, nor the European Continental (written) Law System. The Chinese Legal System differed mainly in that the executive hierarchy played the role of judges. Until now, Stakeholders still often fight court decisions with the appeal to the Party/Government, considering the executive branch more “neutral” than the judicial system.

Moreover, social solidarity in the kinship of “big family” has been a mainstream social value for more than two thousand years. Class struggle becomes an infamous concept particularly after the “Great Proletarian Cultural Revolution.” The social criticisms target on government body instead of laws, on whether the government is neutral/fair or selfish/corrupt.

Chinese tend to understand laws as the commercial contracts that must observe in a commercial society. Other than commercial area, laws would be more or less a matter of convenience. Therefore, the authority of laws is subject to the severity of law enforcement. 






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