Theory & Approach_Li Hongtao_Nicole Romanelli

Keywords: Chinese constitution, constitutionalism, rule of law, Fourth Plenum, Socialist rule of law
with Chinese characteristics.
Author: Nicole Romanelli
Zhejiang University
Autumn Semester 2014-15
Prof. Li Hongtao
Theory and Approach of China Studies
This paper will focus on the recent constitutional development in China along three
main paths. Firstly, analyzing the concept of rule of law in China and the very new
Xi Jinping campaign focused on “Socialist rule of law with Chinese characteristics”
stressed during the last Fourth Plenum.Secondly, pointing out effectiveness of Chi-
nese constitution and discover if there is a gap between theory and practice in litiga-
tion procedures and if the new legal implementation will bridge this gap. Finally the
main purpose is to figure out if China’s rule of law will lead to a “rule of Constitution”
in the future.
The Rule of Xi
The future of Chinese legal system
after the Fourth Plenum

The Rule of Xi
The future of Chinese legal system after the Fourth Plenum
Overview
“Socialist rule of law with Chinese characteristics” is the very new
Chinese party slogan stressed during Xi Jinping’s anticorruption cam-
paign and during this annual Plenum that ended on October 23rd
. In a
lengthy document published on October 28th
, the Communist Party called
for no less than an “extensive and profound revolution” in the way China
is governed. This would involve establishing “rule of law” by 2020 and
giving new emphasis to a long-neglected constitution which, among other
things, enshrines freedom of speech and of the press.
Three Represents and
Olimpic Games
Amendment 2004 Non-public sectors and social
market economy (artt. 11, 13)
Protection of human rights (art. 33)
WTO requirements Amendment 1999 Rule of law (art. 5)
1992 Party Congress and
“social market economy”
Amendment 1993 Social market economy (art. 15)
No economic plan (art. 10)
Deng’s reforms
implementation
Amendment 1988 Private sector (art. 11) and house-
hold responsibility system (art. 10)
1978 III Plenum of 11th
Central Committee and Deng
Xiaoping new leadership
Constitution 1982 Four modernisations
Four fundamental principles
Private economy

During RPC’s history, Chinese constitutional law has concerned
itself more with state organizational structure then with the checks and
balances of governmental powers, more with the future direction of the
society than the protection of fundamental rights of citizens, and more
with general principles than with detailed rules capable of implementa-
tion. Analyzing the Constitution of 1982 is not surprising that precisely
78 of the 138 articles deal with the structure of state organization (PRC
Constitution, 1982) and even if the Constitution is considered the “moth-
er of all laws”, China law-makers insist that a Constitution should only
contain “very fundamental and necessary” provisions that can be decided
at that time. Consequently, constitution is not seen as in the West as an
immutable set of fundamental principles but it can be changed without
additional procedures. New constitutions and amendments normally re-
flect political change led by the Communist Party and its Central Com-
mittee (chart n.1). There is no doubt that the CPC has firmly control on
the state affair and on juridical system, in fact, it is the constitutional
power of the National People’s Congress to revise the constitution and to
elect or appoint state leaders and, since there is no Constitutional Court,
constitutional revisions can only be initiated and proposed by the Party
(Kellogg, 2008).
The constitution revision of 1999 formally incorporated the phrase
“Ruling the Country according to the Law” 依法治国 yīfǎzhìguó into
article 5. At the 16th
Party Congress the same phrase was also added to
the Party Constitution. The adoption of this terminology aroused much
enthusiasm among scholars in China, who believed that it could mean
a new landmark in legal construction in terms of Rule of Law (Zhang,
Chart 1.
Constitutions of
the PRC and its
amendments

“Ruling the
Country
according to
the Law”
依法治国
yīfǎzhìguó
Chart 2.
Human rights
and rule of law
2010). In the West the notion of Rule of Law embraces other concepts
such as: supremacy of law, juridical independence and equality before the
law, separation of powers, checks and balances, a parliamentary system
and human rights. The majority Western analysts argue that the concept
as promoted by the Party should be translated as “rule by law”, but Chi-
nese state media continue to use “rule of law” in their official English
translations. However, China cannot be described as a country of rule of
law for several reasons. Firstly, the notion is largely originated and been
developed in the West and even in its contest this concept is deeply con-
troversial and a comparison with Chinese is meaningless. Secondly, even
if China adopted this label in order to meet the WTO requirements we
should not impose western liberal idea and values on China (Choukroune,
2012). Thirdly, the Chinese term 法治 fǎzhì — traditional referring to Le-
galism and literally more close to “rule by law” than “rule of law” — is
largely a scholarly construct; the official term is a mouthful “依法治国，
建设社会主义法治国家” Yīfǎzhìguó, jiànshè shèhuì zhǔyì fǎ zhì guójiā
that means “ruling the country according to law and building a socialist
country governed by law” (Chen Jianfu, 2008).
1982 1999
Article 5
“The State upholds the uniformity and
dignity of the socialist legal system. No
law or administrative or local rules and
regulations shall contravene the constitu-
tion. All state organs, the armed forces,
all political parties and public organiza-
tions and all enterprises and undertak-
ings must abide by the Constitution
and the law. All acts in violation of the
Constitution and the law must be investi-
gated. No organization or individual may
enjoy the privilege of being above the
Constitution and the law.”
“The People’s Republic of China
governs the country according
to law and makes it a socialist
country under rule of law. The
State upholds the uniformity and
dignity of the socialist legal sys-
tem. No laws or administrative or
local regulations may contravene
the Constitution. All State organs,
the armed forces, all political par-
ties and public organizations and
all enterprises and institutions must
abide by the Constitution and other
laws. All acts in violation of the
Constitution or other laws must be
investigated. No organization or in-
dividual is privileged to be beyond
the Constitution or other laws.”
1982 2004
Article 33
“All person holding the nationality of
People’s Republic of China are citizen
of the People’s Republic of China. All
People’s Republic of China are equal
before the law. Every citizen enjoy the
rights and at the same time must perform
the duties prescribed by the Constitution
and the law.”
“All person holding the nationality
of People’s Republic of China are
citizen of the People’s Republic
of China. All People’s Republic
of China are equal before the law.
The state respects and protects
human rights. Every citizen enjoy
the rights and at the same time
must perform the duties prescribed
by the Constitution and the law.”
The Rule of Xi

Conceptual Framework
Literature Review
Even if legal system is developing and improving in China rap-
idly, China is far from a rule of law country in western assumption and
the meaning of “socialist rule of law with Chinese characteristics” is
not clear. According to the Plenum, judicial reform will promote judi-
cial transparency, because a transparent judiciary is a precondition for
judicial fairness and it will provide a strong guarantee for the nation’s
economic development and social stability as Global Time reported. Even
if Xi’s initiative can be seen as a step forward, this campaign seems to
propose again a traditional instrumental use of the law for political pur-
pose.
This paper will focus on the recent constitutional development in
China along three main paths. Firstly, analyzing the concept of rule of
law in China and the very new Xi Jinping campaign focused on “Socialist
rule of law with Chinese characteristics” stressed during the last Fourth
Plenum. Secondly, pointing out effectiveness of Chinese constitution and
discover if there is a gap between theory and practice in litigation proce-
dures and if the new legal implementation will bridge this gap. Finally,
the main purpose is to figure out if China’s rule of law will lead to a “rule
of Constitution” in the future.
As Deng Xiaoping invented the term “socialist market economy”
to satisfy hardline ideologues while he steered the country towards capi-
talism, Xi Jinping has just coined the new slogan “Socialist rule of law
with Chinese characteristics” in order to give a name to his reforms. If
they are anything like as significant as those that Deng’s catchphrase her-
alded, then this is a welcome development. As already mentioned above,
where these reforms will lead is not clear yet (Economist, 1st
November
2014). However, the most intriguing aspects of this Fourth Plenum are
the tantalizing references to the “rule of [the] Constitution.” The idea of
constitutionalism has been all but taboo in China since Xi Jinping came
to power. Advocates for the idea that China’s constitution should function
as a check on political power have been targeted by the CCP. Academic
world has different opinion about which turn China legal system will
take.
One of the most important scholars in this regard, Randall Peer-
enboom, claims that China legal system is moving towards a regime that
complies with the basic element of a thin rule of law. Furthermore, he
also believes that law is used instrumentally in every legal system, even
though he tries to distinguish between pernicious instrumentalism and
acceptable instrumentalism, the former being rule by law and the latter
rule of law. He believes that China has moved away from a purely in-
strumental conception of rule of law in which law is meant to bind both
government and officials and citizens, though he concedes that the goal
of a legal system to bind the state and its actors is often not realized in
China practice (Peerenboom, 2009).
The Rule of Xi

Research Questions
Chen Jianfu, with his pragmatic view and rejection of labels, af-
firms that the recent emphasis by the Party on creating a harmonious so-
ciety can create an environment for legal scholars and law-makers to pay
more attention to potential conflicts between local and national adopted
laws. If that has to be the case, adaptation not just adoption of law will
begin, and thus the transformation of law may finally make Chinese law
Chinese, while still meeting commonly accepted international standards
and for justice and fairness.
Despite western scholar have positive expectation regarding the
future of Chinese legal system, Yang Xiaoqing, a professor at the Renmin
University Faculty of Law in her article “A Comparative Study of Con-
stitutional Governance and the People’s Democratic Regime” published
in Qiushi Journal, shows that the Party’s opinion is completely different
for the moment. Yang’s argument seems to reflect the dominant view
within the Party Centre at this moment, and as such, it can be considered
to be a clear statement of the direction in which the Party wants espe-
cially after New Year’s editorial of the well-known newspaper Southern
Weekend, “The Chinese Dream is the Dream of Constitutionalism”, that
was removed and replaced by provincial censors. Her main point is that
the people’s democratic system cannot be called “Socialist constitutional
governance”. As analyzed earlier, Socialism and constitutional govern-
ance are mutually exclusive and fundamentally different. Socialism, un-
der the people’s democratic dictatorship is a scientific way of ruling a
country, as it ensures that the people exercise power themselves. A move
towards constitutional governance, in that respect, would be a historical
retreat (Yang Xiaoqing, 2013).
Academic literature combines different ideas concerning Chinese
law but, after new Leadership’s campaign is important re-analyze the
whole issue including new decisions and hypothesis in order to under-
stand what the Party wants and what is the real meaning of the slogan
“Socialist rule of law with Chinese characteristics” and, what is more
important, what is the future of Chinese legal system. The main purpose
of this survey is the investigation of the new Party campaign in order to
analyze three main issues.

Firstly, how is changed the concept of “rule of law” in China thanks
to the Forth Plenum and why is changing. Is the new campaign only an-
other political instrument? After Xi Jinping’s effort the Constitution can
be seen as the “mother of all laws”? Are there some changes concerning
juridical independence?

Secondly, since People’s Republic of China claims to be a country
of rule of law or being more precise that affirms “to rule the Country ac-
cording to the Law”, is the Constitution effective? Is there a difference
between theory and practice? What about constitutional procedures?
The Rule of Xi

Methodology
Talking about the method, this study is principally based on induc-
tive approach and qualitative research using different tools like open-
ended interviews, surveys, analysis of documents.
Case studies
qualitative
and inductive
Interviews and
observation
Surveys and analysis
I would like to start selecting three legal cases linked to the con-
stitutional law in order to analyze constitution implementation and pro-
cedures and discovering if a gap between practice and theory exists. The
first case I will examine is the Qi Yuling and, since is the first constitu-
tional case, can be considered one of the most important examples in this
field. The Qi Yuling case, therefore, is the only case that constitutional
provisions have been directly invoked by the Supreme People’s Court. For
this reasons, it has given rise to much discussion on issue of juridical in-
terpretation of the Constitution ant its application on the private domain
(Kui, 2003). The second case is the Luoyang City “Seed” Case which
highlights Chinese courts’ lack of authority to declare laws invalid. This
case is extremely relevant because it is linked to important topics such
as ambiguous constitutional and institutional division of power, conflict
between national and local interest, juridical independence and account-
ability, total absence of procedure and the Law on Law-Making appli-
cation. The last case concerns the controversial issues of pollution and
preservation of environment according to the articles 9 and 26 of the con-
stitution. Kunming EPB brought a case against factory farm companies
for contaminating the city’s major river. This case is extremely relevant
because combines two new aspects of Chinese current aspects: the devel-
opment of public interest litigation as moderate lawyers and the spread of
civil society in China.
Then, I would like to analyze official document issued by Gov-
ernment and national and foreign newspapers in order to have a global
prospective about the Fourth Plenum decisions and their implementa-
tion. I selected three Chinese newspapers: The People’s Daily because
it is the official newspaper of the government of China, the China Daily
because is the widest print circulation of any English-language newspa-
per in China and because it is written for a non-Chinese target, and fi-
nally the Southern Weekly because can be considered the most outspoken
Finally, since official communication published by Xinhua made it
clear that the “rule of law” does not mean a decrease in Party authority
and that Party Leadership is the basic requirement for the socialist rule of
law (Minzner, 2014), could China’s rule of law led to Constitutionalism
in the future?
Research Design
}
The Rule of Xi

newspaper in China. It is strongly recommended by liberal intellectuals
and is said to contribute to public democratic debate and the formation
of civil society. Talking about international newspapers, I will analyze
The Economist, as a liberal English newspaper, New York Times to have
an American perspective, The Diplomat because in an Asia-Pacific based
newspaper and Internazionale because even if is an Italian newspaper it
publishes a selection of international articles translated in Italian. I made
this choice even because analyzing different newspaper I can have a dif-
ferent point of view from both common law and civil law countries. For
this reason I choose Internazionale, because even if it is a second hand
source, I can find different articles from different European countries.
Finally, I would like to interview some lawyers and professors of
Peking University of Law. In literature, Chinese lawyer can be divided
in three groups: radical, critics and moderates also called “for the public
interest”. I will ask what they think about the “rule of law” in China and
what they think about the decisions took during the Plenum and what they
think about the future of legal system in China in order to discover the
mainstream perception among specialists and if some variables such as
age, gender, background and literature division can influence. Concern-
ing lawyers I would like to undertake nonparticipant observation of the
work practices most directly to sensitive or constitutional issue. Observa-
tion can be extremely useful as a field research in order to experience in
first person litigation procedures and their resolutions.
Observation and
data collection
Pattern and
analysis
Tentative hypothesis
and theory
As we can see from the methodology, the research process is char-
acterized by a movement from observation to analysis and from data
collection and finally to theorizing. Thanks to this process I can analyze
all participants relating to “rule of law” issue: specialists, media, official
government and case studies concerning common people’s litigations.
After data collection I will be able to discover if those findings will cor-
respond with academic literature hypothesis or if a theoretical gap will
emerges. Finally, I would like to figure out an answer about the last re-
search question, theorizing which hypothesis, according to this survey,
could be more probable for the future of Chinese rule of law and where it
will lead.
The Rule of Xi
} }

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The Rule of Xi

Theory & Approach_Li Hongtao_Nicole Romanelli

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