China, a Sui Generis Case for the Western Rule-of-Law Model

Jialue Li, Georgetown University Law Center

Abstract

This article synthesizes the Chinese rule of law theories based on their historic and theoretical development in China, and offers in-depth comparison between the Western and Chinese rule of law models.

The current rule of law discussions about China usually premise on the Western rule of law model. The article first summarizes the Western framework in broad categories of substantive theory versus formal theory. But it goes further and explores how these concepts apply in the real world, especially in the context of American jurisprudence. The in-depth analysis of the Western rule of law theories, both at the theoretical and practical levels, provides grounds for meaningful comparison with the Chinese rule of law theories.

Independent from the Western model in terms of both historic context and theoretical foundation, the Chinese legal framework is based on Confucianism and Legalism. Western scholars usually focus on the Confucianism part, but few have explored Legalism and the intertwining between the two. The twin pillars of the Chinese rule of law provide a framework that incorporates the human factors that are discounted in the Western model. The article further summarizes five fundamental principles of the Chinese rule of law: (1) the authority of precedents, (2) legitimacy of power and its succession, (3) merit-based selection of government officials (essence of Chinese democracy), (4) supervision and impeachment (Chinese version of checks and balances), and (5) nonpartisan historical recordings (Chinese version of freedom of speech).

The proposed framework of the Chinese rule of law theories fundamentally challenges some assumptions that are taken for granted under the Western theories of the rule of law and democracy. However, the common grounds between the Chinese and Western models suggest the universality of the rule of law concept, rather than cast any doubt on its value.