Let One Hundered Flowers Bloom, One Hundred Schools Contend: Debating Rule of Law in China

The Article proceeds in three stages. Part I provides a brief overview of thin versions of rule of law and their relation to thick theories. Part II then takes up the four thick versions of rule of law. Part III addresses a number of thorny theoretical issues that apply to rule of law theories generally and more specifically to the applicability of rule of law to China. For instance, can the minimal conditions for rule of law be sufficiently specified to be useful? Should China\u27s legal system at this point be described as rule by law, as in transition to rule of law, or as an imperfect rule of law? How do we know that the goal of legal reforms in China is rule of law as opposed to a more efficient rule by law or some third alternative? Given the many different interpretations of rule of law, should we just stop referring to rule of law altogether, or at least reserve rule of law for Liberal Democratic rule of law States? Finally, turning from theory to practice, are non-Liberal Democratic rule of law systems sustainable

Show Me the Money: The Dominance of Wealth in Determining Rights Performance in Asia

In recent decades, Asia has emerged as one of the most contested sites for the increasingly powerful international human rights movement. Most notably, the heavily politicized Asian-values debate called into question the universal pretensions of the international human rights regime. More fundamentally, the experiences of Asian states over the last five decades challenged two widely held if somewhat inconsistent views: first, that democracy was the key to economic growth, or, reversing the causal direction, that economic growth would inevitably lead to political reforms, democratization and better protection of human rights. Many Asian states experienced their periods of rapid growth under authoritarian governments. Moreover, while some Asian states have made the transition to multiple-party, competitive-election democracy, others have not. Still others exist in a limbo state variously described as soft authoritarianism, semi-dictatorships, semi-democracy or nonliberal electoral democracy. Even those states that have most fully embraced democracy continue to interpret and implement human rights in ways that differ in important respects from some Western liberal democracies, thus calling into question the extent to which they should be described as liberal democracies.Past discussions about human rights and values in Asia have been hampered by the lack of reference to empirical studies to back up the strong theoretical, and in some cases polemical, claims being made on both sides about the differences or lack thereof in fundamental values. Numerous multiple-country quantitative studies have demonstrated significant regional effects with respect to democratization, labor rights, women’s rights, personal integrity rights, freedom from government intrusions, rule of law and good governance, and cultural values that in turn affect rights performance. Although invaluable in locating Asian countries within a larger comparative context, the studies generally define Asia very broadly and deal with rights in a very general way. They generally do not measure the degree of variance in rights performance within Asia, or attempt to explain the variation within Asia or why Asia as a region might differ from other regions.In Part I, I provide an empirical overview of the performance of twelve Asian countries with respect to physical integrity rights, civil and political rights, social and economic rights and other indicia of quality of life including poverty, infant mortality, life expectancy, primary school enrollment, government expenditures on education, health and military, quality of governance measured in terms of regulatory effectiveness, regulatory quality, rule of law and control of corruption, and law and order and social stability as reflected in crime rates and the number of drug users, suicides, divorces and young mothers. I also include several other countries from different parts of the world for comparison points. The empirical overview demonstrates a wide variation in Asia with respect to rights performance. At the same time, patterns emerge with respect to lower scores for civil and political freedoms among East Asian countries and higher scores for social and economic rights as well as good governance, law and order, and crime control and social stability. These patterns are consistent with aspects of the “Asian values” platform that emphasize the importance, if not the priority, of social and economic rights relative to civil and political rights. Similarly, the studies suggest that even in Asian democracies the liberal emphasis on the individual will often take a back seat to collective interests and social stability. However, the wide variation within Asia still requires an explanation.Accordingly, Part II examines several possible explanations for the wide variation among Asian countries. Clearly the story is complicated. A number of factors come into play, with some factors more important for different types of rights or playing a different role in different countries or at different times within a country. War, political regime type, the nature and level of development of legal institutions, population size, colonial history, religion and cultural factors all play a role. In several countries, ethnic diversity, religious tensions and the rise of Islamic fundamentalism or separatist movements have had a major impact on rights policies and performances. However, consistent with the empirical evidence globally, in the subtle and complex interplay of economics, politics, culture, law and institutions in determining rights performance, what matters most is wealth. While money may not be able to buy happiness, it does seem to buy a longer life, better education, more health care, and even civil and political rights.The implications are twofold. First, put bluntly if somewhat too simply, if you want better performance across a range of rights and indicators of human well-being, show me the money. Second, given the importance of wealth to rights performance, comparisons are best made between countries in the same income categories. Comparing a lower middle-income country like China to a rich country like the U.S. makes about as much sense as comparing a piano to a duck

What Have We Learned About Law and Development? Describing, Predicting, and Assessing Legal Reforms in China

This Article applies existing conceptual tools for describing, predicting, and assessing legal reforms to the efforts to establish rule of law in China, in the process shedding light on the various pathways and methodologies of reform so as to facilitate assessment of competing reform strategies. While drawing on China for concrete examples, the discussion involves issues that are generally applicable to comparative law and the new law and development movement, and thus it addresse

Economic and Social Rights: The Role of Courts in China

This Article considers what the role of the courts could and should be in implementing ESR in China. Part II surveys recent global developments giving greater bite to economic and social rights, as well as some of the main controversies, debates, and approaches to promoting, protecting, and fulfilling ESR, with particular attention to the role of the courts. Part III provides a general introduction to the social, legal, political, and economic context in China, and contrasts the situation in China with South Africa?one of the global leaders in judicial implementation of ESR. The overall environment in China is, if not hostile, at least not promising for a robust role for the courts in protecting ESR. Nevertheless, there is still some room for the courts to play a positive role in implementing ESR. Part IV provides some suggestions regarding the way forward, suggesting that what is needed is an approach that considers all factors: (1) absolute minimums and core rights; (2) the level of development nationally, regionally and locally; (3) community consensus and popular opinions; (4) institutional constraints; and (5) the role of courts within the Chinese constitutional structure and polity. Part V concludes

The X-Files: Past and Present Portrayals of China\u27s Alien “Legal System”

In Part I of this Article, I examine the recent attempt of the prominent comparative law scholar Ugo Mattei to develop a new taxonomy that takes into consideration developments in the legal systems of China and other Asian countries in an effort to bring them into the mainstream of comparative law. While I applaud his motives and share his concerns about the need to bring Chinese legal studies into the mainstream of comparative law, I question his results. Mattei wishes to correct the Orientalist biases of prior taxonomies, but ends up imposing his own Orientalist views on Asian legal systems. In Part II of this Article, I discuss what seems to be a tendency in much foreign scholarship to portray China’s legal system in excessively negative terms and to unduly dismiss developments and trends suggesting that China is moving toward some form of rule of law. I suggest that what is needed is a more balanced approach, informed by a broader historical and comparative perspective. Part III concludes with some observations about teaching and researching Chinese law

What Have We Learned About Law and Development? Describing, Predicting, and Assessing Legal Reforms in China

This Article applies existing conceptual tools for describing, predicting, and assessing legal reforms to the efforts to establish rule of law in China, in the process shedding light on the various pathways and methodologies of reform so as to facilitate assessment of competing reform strategies. While drawing on China for concrete examples, the discussion involves issues that are generally applicable to comparative law and the new law and development movement, and thus it addresse

Let One Hundered Flowers Bloom, One Hundred Schools Contend: Debating Rule of Law in China

The Article proceeds in three stages. Part I provides a brief overview of thin versions of rule of law and their relation to thick theories. Part II then takes up the four thick versions of rule of law. Part III addresses a number of thorny theoretical issues that apply to rule of law theories generally and more specifically to the applicability of rule of law to China. For instance, can the minimal conditions for rule of law be sufficiently specified to be useful? Should China\u27s legal system at this point be described as rule by law, as in transition to rule of law, or as an imperfect rule of law? How do we know that the goal of legal reforms in China is rule of law as opposed to a more efficient rule by law or some third alternative? Given the many different interpretations of rule of law, should we just stop referring to rule of law altogether, or at least reserve rule of law for Liberal Democratic rule of law States? Finally, turning from theory to practice, are non-Liberal Democratic rule of law systems sustainable

Assessing Human Rights in China: Why the Double Standard

China is often singled out as one of worst human rights violators in the world today. On the other hand, the Chinese government regularly issues reports chock-full of statistics showing considerable progress on a wide variety of fronts, and proudly claims that Chinese citizens enjoy more rights than ever before. While not denying that much remains to be done, the government maintains its critics are biased, human rights are being misused for political purposes, and China is being subject to a double standard. Many Chinese citizens feel the same way.The very fact that government leaders and Chinese citizens feel China is being held to double standards, whether or not it is true, has several negative consequences for human rights. Beijing has been reluctant to allow visits by inspectors from the U.N. or other countries, and has imposed restrictions on their visits. In response to the annual U.S. State Department report, China now issues its own critical report on the rights situation in the U.S. In addition, China has cancelled bilateral dialogues on human rights and programs on rule of law in response to the attempts to censure it in Geneva.The public’s support for international reform efforts has also been weakened. Many citizens are suspicious about the motives of NGOs. Public opinion about America, seen as the leader of Western critics, has undergone a dramatic shift in the last twenty years, from wildly supportive to highly critical.Is China subject to a double standard? I argue based on comparative empirical studies of rights performance that it is, and offer several explanations why. Part I provides a brief overview of China’s official policy on human rights and China’s involvement in international human rights regime.Part II examines how China does relative to other countries, particularly other countries at its income level, in physical integrity rights, civil and political rights, social and economic rights; quality of governance; law and order and social stability; women’s rights; and cultural or minority rights. While China scores well below the average in its lower middle income category on civil and political rights, it outperforms the average country in its income class on virtually all other indicators, supporting the claim that China is subject to a double standard.Part III considers several reasons why China seems to be held to a higher standard than other countries. Some critics argue the attention paid to China is warranted because, given China’s huge population, addressing problems in China will benefit so many people. However, India has a population nearly as large as China. And yet, despite a human rights record that falls short of China’s on most indicators, India has not received anywhere near as much critical scrutiny as China.A second, more likely explanation is that the international human rights community remains biased toward civil and political rights, the area in which China is the weakest.Third, and related, non-democratic countries are held to higher standards than democratic countries.Fourth, China is singled out because of its geopolitical importance. For some, China has assumed the role played by Russia during the Cold War – the evil empire that must be opposed at every turn.Fifth, China presents a normative challenge to the human rights regime. As suggested by the debate over Asian values, China is likely to take advantage of its growing economic and geopolitical influence to defend and advocate rights policies and normative vision of the world at odds with current rights policies based on secular liberalism even in the face of Western opposition.Sixth, much of the reporting on China by the general media and human rights monitors tends to focus on particular horrific cases of human rights violations that are not representative of the system as a whole. This creates a mistaken impression of how serious the problems are.On the other hand, the government’s lack of transparency, combined with the egregious nature of some violations, leads people to suspect the worse, and fuels images of China as a repressive totalitarian state.Part IV concludes with a brief discussion of the benefits of avoiding a double standard

Human Rights and Rule of Law: What\u27s the Relationship?

This article considers several explanations for the international human rights movement’s sudden heightened attention to rule of law.The human rights movement has increasingly encountered conceptual, normative and political challenges. Perhaps, as de Mello suggested, rule of law will be a “fruitful principle to guide us toward agreement and results,” and “a touchstone for us in spreading the culture of human rights.”We still live in a world where widespread human rights violations are the norm rather than the exception. Rule of law is seen as directly integral to the implementation of rights.Rule of law may also be indirectly related to better rights protection in that rule of law is associated with economic development, which is related to better rights performance.Rule of law is integral to and necessary for democracy and good governance. Attempts to democratize without a functional legal system in place have resulted in social disorder.Rule of law is said to facilitate geopolitical stability and global peace. According to some, it may help prevent wars from occurring in the first place. It also provides guidelines for how war is carried out, and is central to the establishment of a rights-respecting post-conflict regime.Post 9-11 concerns over terrorism have also focused attention on rule of law.In addition, rule of law provides a rhetorical basis for challenging the world’s sole reigning superpower.Taking each of these factors in turn, I critically analyze the relationship between rule of law and human rights. The relationship is complex and defies easy summary across such a broad range of issues. Nevertheless, a provisional summary that highlights some of the key findings and conclusions may be helpful. First, on the whole, rule of law is desirable. However, it is clearly no panacea for any of these problems.Second, rule of law is more useful in addressing some concerns than others. Appealing to rule of law will do little to resolve the conceptual and normative difficulties at the core of the human rights agenda.Third, the empirical evidence to support the assertion that rule of law leads to more rights and wellbeing is limited, and subject to doubts about causality. There is good reason to believe that wealth rather than rule of law is mainly responsible for better rights performance, although rule of law may also have some independent impact.Fourth, although rule of law and liberal democracy generally go hand in hand, they need not. Rule of law is possible in non-democratic states, and in democratic but non-liberal states. Rule of law may proceed, and is generally a precondition for, democratic consolidation.Fifth, we should not put too much faith in the ability of rule of law to prevent war, limit atrocities during war, or rein in a superpower bent on going its own way.Finally, rule of law is only one component of a just society. In some cases, the values served by rule of law will need to give way to other values. Invoking rule of law in most cases signals the beginning of normative and political debate, not the end of it

Dispute Resolutions in China: Patterns, Causes, and Prognosis

Since the reform era began in China in 1978, there have been significant changes in the nature and incidence of disputes, conflicts and social disturbances, and the mechanisms for addressing them. We examine three types of disputes: commercial disputes, socio-economic claims and public law (administrative and constitutional law) disputes. Three general patterns stand out: first, the much better performance of institutions for handling disputes in urban areas compared to rural areas; second, the significantly greater progress in handling commercial law disputes compared to socio-economic claims; and third, the more advanced state of administrative law compared to constitutional law