Reflections on the Rule of Law upon Listening to President XI

• Author: John Prince
• Position: Wenzhou Kean University
• Pages: 519-559

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2017 e Institute for Migrant Rights Press

e author thanks LiXinyi (󰑿󰡔)[Momo Li] and HeYitao(󳔝) [ZacharyHe]

for their invaluable assistance. Ms. Li and Mr. He are both recent graduates of

Wenzhou-Kean University, now studying for post-baccalaureate degrees, Ms. Li at

the University of Bristol in the United Kingdom, and Mr. He at the University of

Chicago in the United States.

REFLECTIONS ON THE RULE OF LAW

UPON LISTENING TO PRESIDENT XI

John Prince

Wenzhou-Kean University

E-mail: joprince@kean.edu

In recent years, the Chinese government has made signicant rhetorical com-

mitment to the rule of law. Many skeptical observers, however, doubt not only

the current commitment but whether such notions as “rule of law” even could

take root in China’s intellectual soil. A primary cause of this skepticism is a wide-

spread perception that the long-dominant Confucian tradition rejected such an

idea in favor of “rule by virtue.” e position in this paper is that such skepticism

misunderstands both the nature of the Chinese Confucian tradition’s position on

law and what the concept of the rule of law actually entails. Clarifying a more

eective understanding of the nature of law, what this article calls the“narrative”-

jurisprudential model, and comparing that model to the Chinese tradition, shows

that there is potential for a rule of law understanding to take root in China. Of

course, potentiality is not actuality. It will take time and struggle to bring a rule

of law regime into full bloom in China, but there is a sucient basis in Chinese

intellectual history to provide some traditional support for such a regime.

Keywords: Le gal Philosophy, Comparative Law, Legal Tradition, Eastern Philosophy,

Confucianism.

IV Indonesian Journal of International & Comparative Law 519-59 (July 2017)

520

Prince

I. INTRODUCTION

In recent years, the Chinese government has made signicant rhetori-

cal commitment to the rule of law. Many skeptical observers, however,

doubt not only the current commitment but whether such notions as

“rule of law” even could take root in China’s intellectual soil. A primry

cause of this skepticism is a widespread perception that the long-dom-

inant Confucian tradition rejected such an idea in favor of “r ule by vir-

t u e .” 1 e position in this paper is that such skepticism misunderstands

both the nature of the Chinese Confucian tradition’s position on law

and what the concept of the rule of law actually entails. Clarifying a

more eective understanding of the nature of law, what this article calls

the “narrative” jurisprudential model, and comparing that model to the

Chinese tradition, shows that there is potential for a rule of law under-

standing to take root in China. Of course, potentiality is not actuality. It

will take time and struggle to bring a rule of law regime into full bloom

in China, but there is a sucient basis in Chinese intellectual history to

provide some traditional support for such a regime.

II. THE RULE OF LAW FORCHINA

TOD AY

In February 2015, in advance of the Lianghui, the annual pair of

meetings of China’s National People’s Congress and the Chinese People’s

Political Consultative Conference, China’s President Xi Jinping gave a

major speech that was watched closely by all who are interested in the

future of China. In that speech, he laid out his vision for his administra-

tion and the future of China.2 In that speech, he set forth what he called

the “Four Comprehensives,” four strategic goals for China’s future.

One prominent item on that list was his hope to “comprehensively

1. See, generally, Guo Baogang, Virtue, Law and Chinese Political Tradition: Can

the Past Predict the Future?, 19 J. C P. S. 267 (2014).

2. 2. is Year’s First Release of Important Documents, irty in All [󳛇

󰊸󱁟󲻾󲚲󰑠󲤞󲤞󰽹󰶺  30 ], available at http://www.

guancha. cn/2016-03-28 (last visited Mar. 28, 2016).

521

Reections on the Rule of Law upon Listening to President Xi

Prince

implementation the rule of law.”3 Xi had suggested this as a goal before,

but its placement in this list highlighted how important the notion

of the “rule of law” has become for Chinese planners. Inasmuch as it

seems likely his use of the term was inuenced by Western notions of

the rule of law, his speech also gives urgency to an even more basic

question, which is what this notion of the “rule of law” could mean.4

Still further, this forces the question of what the concept of “law” is.

e concept of the “rule of law” is oen perceived, both inside and

outside China, as a concept borrowed from Western understandings

of law, and further, as one with little or no support in the intellectual

history of China. However, it will be hard for a purely foreign idea

to truly take root, so if there is some way to understand this concept

in a Chinese context, it is much more likely to become a meaningful

principle of action. erefore, it would be best if we could nd some

common ground between the Chinese intellectual tradition and the

“rule of law” tradition from the West. One part of the argument here is

that such common ground exists.

ere is also a need to nd some rm footing for the concept in

a philosophy of law that addresses the living character of the law as

a narrative. I argue here that such a narrative jurisprudence not only

provides a more accurate understanding of what the rule of law can

mean, but that it provides a useful language with which to discuss the

rule of law within the Chinese intellectual tradition.

A. e Current Chinese Discussion of the Rule of Law

President Xi’s signature program, it appears, will be his “Four

Comprehensives,” consisting of “comprehensively build[ing] a

moderately prosperous society, comprehensively deepen[ing] reform,

comprehensively implement[ing] the rule of law, and comprehensively

strengthen[ing] Party discipline.”5 Of those four, the one that is of

3. Id.

4. is essay uses the term “Western” in the conventional sense that really means

intellectual traditions derived from European culture—that is, Europe, the

Americas, Australia, and so on.

5. China Voice: Xi’s “Four Comprehensives,” A Strategic Blueprint for China,

Xin- huanet (Feb. 25, 2015), available at http://news.xinhuanet.com/english/

china/2015-02/25/c_127517905.htm (emphasis added) (last visited May 28,