Last May I was invited to China for two weeks, first to take part in a two-day conference at the law school of Tsinghua University in Beijing, and then to give several public lectures there and in other cities. The Tsinghua conference was arranged by the university’s Research Center for the Rule of Law and Human Rights, and there and at all the other lectures and meetings I was asked to discuss legality, human rights, and democracy. (The university in Hangzhou suggested, as the title of my lecture there, “Taking Human Rights Seriously.”) Since I have for many years published my views in defense of civil and political liberties, I was puzzled to be asked to speak on these subjects. China’s record of ignoring the rule of law, suppressing democracy, and systematically violating human rights is notorious, and the universities, like every other Chinese institution, are in the end under the ruling Communist Party’s control.
It is true that in recent years Chinese leaders have repeatedly said that they respect and encourage the rule of law because it is an essential condition of improving foreign investment and trade.1 In 1999, Article V of the Chinese constitution was amended to include this passage: “The People’s Republic of China shall practice ruling the country according to law, and shall construct a socialist rule-of-law state.” But actual legal practice, particularly in criminal cases, often flatly contradicts that declaration. Two principles are central to the rule of law: that the coercive power of the state may only be exercised in accordance with standards established in advance, and that judges must be independent of the executive and legislative powers of government. Traditional legal practice in China has rejected both these principles, following instead what was often called the Confucian view: that law is a matter not of rules or general principles, but of virtue, equity, and reasonableness in individual cases.2 Judges developed no system of legal precedent: there was no understanding, that is, that judges in later cases would follow principles laid down in earlier decisions. Even now, very few judicial decisions are published.
When the Communists took power they substituted Leninist doctrine for Confucianism: they said that law is an instrument of power and political control, and that its application must be subject to the dictatorship of the Party as representing the proletarian masses. They established a “public security system” independent of the official legal system, which has detained tens of thousands of political prisoners by administrative action alone,3 and includes a program of administrative detention for the “custody and repatriation” of homeless and jobless rural immigrants to the cities in camps where they are required to work for their support.4
Party officials I met during my visit insisted that recent reforms had sharply reduced the scope of the administrative security system and that the repatriation camps were being phased out. But the official legal system is itself seriously defective. Many judges are former minor Party officials, many are not…
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