Post-WTO China and independent judicial review.

• Author: Killion, M. Ulric

1. INTRODUCTION II. CONFUCIANISM, ASIAN VALUES, AND PARTICULARISM A. The Method and Need to Study Chinese Jurisprudence B. Ethos of Confucianism and Legalism C. Asian Values: Reality or Rhetoric III. CHINA AND INDEPENDENT JUDICIAL REVIEW A. The Constitution of the People's Republic of China B. Rule of Law in China IV. CONCLUSION A. China and The History of Judicial Review in the West B. China's Road to Judicial Review C. A Justiciable China Constitution D. Constitutional Ethos and Marbury v. Madison I. INTRODUCTION

   "Can the Confucian person be transformed into a legal person, and can the Confucian society support it?" (1)

   The accession to the World Trade Organization (WTO) of the People's Republic of China (China) on December 11, 2001, triggered an eclipsing interest in the nomenclature of rule of law. (2) On the brink of modernity, China faces the task of major legal reforms in the hopes of transforming itself into a modern economy and establishing itself as an effective participating member of a global economy where open markets and free trade reign. China's major legislative goals are expressed three fold: "Continuing to revise laws that are not in conformity with China's obligations under the WTO rules; revising laws that are not conducive to enhancing the competitive power of Chinese enterprises in the international market; and improving laws offering protection to domestic enterprises and ensuring industrial safety." (3) At the forefront of China's on-going legal reforms is a tacit globalization imperative of implementing the rule of law. (4)

   Despite staggering numbers in trade and affiliate sales, the market access of transnational corporations (TNCs) to Mainland China's consumer market remains a problem and an elemental motivation of TNCs. (5) A problem of TNCs entrance into China's market is that they must employ "barrier-jumping" investments to overcome tariffs and other measures effectively discriminating against foreign traders. (6) It is here that we begin to see the need for the rule of law in China as outlined by the WTO and General Agreement on Tariffs and Trade (GATT). (7) It is a prescription for broad, systemic reforms in the areas of transparency, (8) independent judicial review, (9) and fairness. (10)

   China's commitment to the rule of law derives from its acceptance of a key provision in the Protocol on Accession. (11) A WTO Appellate Body Report confirms that a WTO member must establish sound legal mechanisms for implementing its obligations under the WTO Agreement. (12) The implementation of the rule of law is an imperative necessity to both legal reform and economic development. (13) China itself recognizes its obligation and its need to reform its legal system. (14) For China, a well-established, socialist-market economic system requires a well-established, socialist-market legal system. (15)

   The view of China from a Western perspective is grounded in Western taxonomies and is in a constant struggle with Sinicism in its insistence to westernize Sinicism. The West must lend more understanding to the jurisprudence that has driven China's legal system over the centuries. The jurisprudence of a nation-state influences the rule of law and mirrors its general culture. (16) Jurisprudence provides an invaluable tool for establishing and evaluating a legal system. (17)

   Chinese jurisprudence is a foundational philosophy grounded in antiquity, with Confucianism and Legalism vying for dominance. (18) An on-going and ageless struggle of competing Chinese philosophical thought persist in modern China, with their influence offering an often neglected dimension to understanding China's legal system. A China in antiquity presents a reality of traditional Chinese philosophy forged into modern Chinese nationalism. Although there are many traditions of Chinese philosophy--Confucianism, Neo-Confucianism, Legalism, Taoism, Ying Yang school, Logicians, Buddhism, (19) and even New Confucians, or third-wave New Confucians (20)--for purposes of this article, a predominating Confucianism is representative of all traditional schools of Chinese philosophical thought. Although differing from each other, the major Asian religions and philosophies share similar concepts about the origins and purpose of power. (21)

   Arguably, a China in antiquity reinvents itself as a modern China with Asian values. Modern phraseology indicates an East Asian policy of putting economic reform before the rights of individual citizens. (22) Some argue that these Asian values are the new face of authoritarianism; others argue that these Asian values represent no more than a cliche or exercise in political rhetoric, rather than theory in practice.

   Assuming the applicability of the rule of law, the question becomes what influence Chinese jurisprudence plays in the construct of a positive discursive model for judicial review. It is a question of whether a legal system rooted in 5,000 or more years of Chinese philosophy, culture, and history can truly embrace the rule of law and positive discursive model for judicial review. This is dependent upon the question "Can the Confucian person be transformed into a legal person, and can the Confucian society support it?" (23)

2. CONFUCIANISM, ASIAN VALUES, AND PARTICULARISM

   A. The Method and Need to Study Chinese Jurisprudence

   On traditional Confucianism Sang-Jin Han writes: For East Asians living in "the Confucian cultural sphere" ... where the influence of Confucianism has been relatively great--the burning question today is the reconciliation of various "Western" values with traditional Confucian ones in both the public and the private realms of existence.... [W]e need to investigate under which conditions the East and the West, despite the many differences between them, can be engaged in an equal and dignified dialogue. (24) To accomplish this sort of dialogue, the West must commit more resources to the study of Chinese jurisprudence. Lack of resources, training, and translation typically hinder the West in its understanding of Chinese philosophy. (25) Additionally, Arif Dirlik notes a proclivity of the West to explore Sinicism, or study Sinology, in terms of its own history and thought. (26) The approach of the West is shrouded in Western ideology, social generalizations, and an unconscious bias--perhaps romantically induced--engendering a persistent proclivity to assimilate a preconceived subordinate Sinic culture. Barry M. Hager writes: "The tendency in the West too often is to pay little tribute to the existence of other legal traditions, largely because [the other legal traditions] do not have the hallmarks of the Rule of Law approach that developed in the West." (27)

   Western jurisprudence is based more on Roman law, than Greek law, because Roman law placed limitations on the arbitrary and discretionary acts of government. (28) The rule of law partly evolved from the influences of the Roman era, but its greatest influence came from intellectual European sixteenth century philosophers--Hobbes, Locke, Rousseau, Montesquieu, and other Enlightenment thinkers. During the Age of Reason (1660-1798), these philosophers expressed the core ideas of the Enlightenment, (29) which posited a focus of ethics directed at the search for a universal principle of law that would be binding for circumstances. (30 all individuals regardless of their particular circumstances. (30) Thomas Hobbes in Leviathan (1651) (31) and Jean-Jacques Rousseau's formulation of the social contract (32) offer prime examples of the philosophical thought that gave birth to the Western rule of law. Hobbes provided a modern foundational basis for Western jurisprudence by asserting the rationality of absolute power, which evolved into the ideal of a democratic share of power. (33) This ideal arguably serves as the foundational ethos for democracy, constitutionalism, the rule of law, and positive discursive models for judicial review. (34) It is a foundational ethos, or constitutional value, reflective of Western culture and values, which is essential to constitutionalism and rule of law. (35)

   The role of philosophical thought taken in conjunction with the role of historical accident forges the Western rule of law, which in turn, forges positive discursive models for judicial review. How Chinese jurisprudence influences the implementation of the rule of law remains unanswered. A study of Chinese jurisprudence should lend understanding to China's journey toward the rule of law.

   Stephen C. Angle urges the best approach to the study of Confucianism should start from a historical perspective, rather than an ahistorical perspective. (36) First, Angle argues that a historical consciousness in Confucianism may help us to understand why we have not achieved a moral consensus, and where and how to best reach such a consensus. (37) Second, he argues that we will see that "the Chinese rights tradition has rich resources," which will broaden the range of available Chinese perspectives on rights. (38) Third, he argues that reviewing a Chinese history of rights discourse will give us an appreciation for the wisdom of seeing moral traditions as contingent and rooted in historical particularity. (39)

   The previously mentioned arguments for studying Confucianism from a historical perspective are applicable to the study of Chinese jurisprudence. The study of Chinese jurisprudence from a historical perspective may assist the West in understanding the judicial problems now confronting China and in reaching a mutual accord on the problem of implementing the rule of law. Western universalizing cosmopolitanism brings preconceived ideals and taxonomies that impede the sort of Sino-West dialogue envisioned by Sang-Jin Han. (40)

   B. Ethos of Confucianism and Legalism

   Traditional Chinese jurisprudence deals with various philosophies of proper social behavior and law from about 500 B.C. until significant Western influences in the nineteenth and...