China Issues White Paper on Rule of Law

One year ago, China issued an important document on the rule of law. See http://www.china.org.cn/government/news/2008-02/28/content_11025486.htm for text. The document addresses human rights, but emphasizes "subsistence", economic, social and cultural rights. In the discussion of the right to life, the document states that it "upholds a policy of 'killing fewer and with caution.'" Political rights, religion, and equality are also covered. Reading the document should be tempered with the understanding, as one Chinese constitutional scholar put it, that the "right to security" remains the supreme interest.

China's commitment to the Rule of Law has been debated, especially with reference to its human rights records surrounding the Olympics and a recent crackdown on human rights lawyers. See http://www.csmonitor.com/2009/0225/p01s01-woap.html.

However, Chinese legal scholars have been writing about the subject for about 20 years. As a colleague once informed me, "we can talk about rule of law all we want, but we can't talk about human rights and democracy." Little wonder there is such a focus by legal scholars on the subject--it is the outlet for hope of a better life.

The party has adopted it, it least on paper. Why? Probably to curb the abuses of the cultural revolution, which among other things destroyed China's legal institutions. There may be a sincere desire by some for a check on power, and as Randall Peerenboom notes in his seminal work, China's Long March toward the Rule of Law (Cambridge, 2002), rule of law is seen as a pathway to legitimacy. China's version of the rule of law may look very different from that of the West, and Peerenboom explores models for the rule of law without western democracy or style of human rights.

In the end, the question is inescapable for China, is it possible to have one's cake and eat it too-rule of law as a meaning full check on power without democracy or some form of human rights?