Zheng Yongnian:  China Returns to Building a State Ruled by Law

Zheng Yongnian:  China Returns to Building A State Ruled by Law

郑永年:  中国重返法治国家建设

http://www.caogen.com/blog/Infor_detail/62478.html

August 21, 2014

At the highest levels of the Chinese government, no matter how many serious disagreements there are about just what form constitutional government might take, everyone realizes that for the sake of effective political governance, constitutional government is the only choice.

Now that the anti-corruption campaign has been underway for a long time, the Chinese Communist Party has announced that it will focus on a discussion of rule of law at the fourth session of the Eighteenth Party Congress that will be held in October 2014.   This is the first time that this issue has been discussed at a Party Congress.  This will certainly re-ignite the hopes of the many people who had once held great hopes for political reform in China but have been disappointed by the lack of any meaningful political reform up to the present.

Transforming China into a country ruled by law has been the ideal of generations of Chinese for over a century.  There have been many difficulties and twists in turns in the process of realizing this ideal.  The goal of creating a rule of law country was born after the dissolution of the Qing Dynasty.  With the dissolution of the old state, building a new state was a very difficult process.  Making China a rule of law country was not on the agenda then. For many years it was only an ideal.  In the modern era, the primary task of China’s elites has been to build a strong, independent and sovereign state free from incursions by foreign enemies.   China has passed through several principal stages from the dissolution of the Qing Dynasty, the confused battles among the warlords, the unification of China under the Republican government, invasion by foreign enemies (The War of Resistance Against Japan), the civil war between the Nationalist (KMT) Party and the Communist Party, and internal political struggles largely linked to the overriding importance of waging the class struggle.   During these stages, building a state under the rule of law was not the political goal of China’s elites.

After the policy of Reform and Opening began, building a state under the rule of law was finally put on the highest agenda of the ruling party.  In Deng Xiaoping’s time, building a legal system became the core of Chinese political reform.  On the ideological level, the sixteen character policy was put forward – that is, “There must be laws to go by, the laws must be observed and strictly enforced, and lawbreakers must be prosecuted.”  Deng Xiaoping and other leaders repeatedly emphasized the importance of building a legal system.   On the organizational level, the Political and Legal Affairs Commission of the Central Committee of the Chinese Communist Party was established then as the authoritative state organ for promoting the construction of the legal system.

In 1995, the Fifteenth Congress of the Chinese Communist Party formally established rule of law as an overall goal of China’s political reforms.   Although there is just one character difference between “legal system” and “rule by law”.  The change reflected a new stage in China’s development.  The “legal system” signifies establishing and implementing a comprehensive legal system.   “Rule of law”, however, signifies a way to resolve political issues.  That is, the law is no longer merely the tool of the rulers.  Every organization, including the ruling party, must obey the law.  Both the rulers and the ruled must obey the law.

Regrettably, when China entered the new century, building a rule of law country vanished from the reform agenda of the country’s leaders.  Although the leaders did sometimes mention the construction of rule of law, on the practical level they did just the opposite.  Rule of law not only didn’t make progress, in fact it retreated a great deal.  Specifically, the function of the Central Committee’s Political and Legal Affairs Commission quickly changed from promoting the construction of rule of law to becoming an organization that expands the scope of the state organs of force. This was manifested most clearly in the birth and extensive development of systems for maintaining stability.

Nobody denies the importance of social stability.  The issue is what is the foundation upon social stability is built.  If social stability mechanisms leave the track of rule of law and simply rely upon force, the result is creating even more social instability.  Moreover, both the overall concepts for maintaining stability as well as the ideas that guided its implementation went off the track of the rule of law.   Some departments even distorted the idea of the “mass line” and brought it into law enforcement where it became a kind of populism in the legal realm.  This resulted in a situation where the law was compelled to follow public opinion and in which the law could not be enforced when everyone is an offender.

Even more serious, the nature of the departments that utilize force (police, procuratorate, justice) changed.   The most important change was that they became very corrupt.  In the eyes of the people, the principal mission of those departments is to provide ensure safety and social justice in society.  But they became just the opposite.  It is not hard to understand why in the era of “social stabilization” that the relationships among the ruling party, the government, the people, and the state were severely damaged.   Although the goal of the ruling party was to build a harmonious society, Chinese society became less and less harmonious.  Today the Chinese people have very deep distrust in the government and its officials.  This is the result of the high pressure social stabilization policy.

Building Rule of law in China is Difficult

The Chinese people deeply detest the steady spread of corruption in government.  Therefore, since the opening of the Eighteenth Congress of the Chinese Communist Party, the highest level of the Communist Party has been carrying out an intensive anti-corruption campaign.  This anti-corruption campaign is unprecedented.  In just a short time, many officials at all levels have been investigated and punished.  Therefore, many people have said that they fear for China’s future, worrying about whether the anti-corruption campaign will make building rule of law in China even more difficult.  These people feel a great deal of uncertainty.

Actually, faced with the retreat of rule of law, Chinese society has responded in recent years by calling for constitutional government. People have linked constitutional government with the “China Dream”.

Therefore, the great significance of the current anti-corruption campaign is that it represents the ruling party turning back in the direction of building rule of law.   First of all, at the highest levels of China’s leadership,  no matter how much argument there has been amongst them about just what constitutional government should be, they understand that, for the purpose of establishing effective governance, constitutional government is the only choice.  People are against importing into China a carbon copy of western constitutional government.   However, they do believe that China must work hard to build its own model of constitutional government.   Although calls for constitutional government lead to big arguments, nobody denies that importance of rule of law.   In its essence, constitutional government is rule of law.

For society, rule of law can effectively protect the political, economic and social rights of members of society.  While rule of law protects people from violence and terror, there also is no need for protesters and government officials to confront one another by violent means.  Under the social stabilization mechanisms, the rights of the people are not protected and are often violated.  Citizens are forced to present their petitions for redress by unconventional means in response to government officials.  In many cases, this is expressed in violence.

However, building rule of law is difficult.  The ruling party has now once more put the rule of law on its highest agenda.  This is a political precondition for realizing a rule of law society.  During this process there will be very many problems of misunderstanding and political difficulties.  In China, the problem of understanding is manifested in at least three ways.   The first is traditional culture.   Traditional China never developed the spirit of rule of law.  China always stressed “ruling the country according to the law”.  That meant that the rulers use law to govern the country — that is the philosophy of the Legalist School of Chinese philosophy.  Down to this day, this concept is very deep-rooted and widespread.

Ever since the beginning of opening and reform, people have debated “which is more important, the Chinese Communist Party or the law? “  This concern is rooted in traditional thinking.  In fact, one cannot take the system of “party discipline and state laws to mean that Party cadres need only face the sanction of party discipline and are not subject to the punishment of the state’s laws.  In everyday life it doesn’t work that way.  Now the rule of law is being promoted and the Communist Party should also be ruled by the law.   This means that the rule of law needs to be brought into the governance of the Communist Party itself.  Whenever a Party cadre or official commits a crime, they should receive the punishment not just of party discipline but of the laws of the state as well.

The second obstacle to building the rule of law in China is the understanding that “law is a social tool”. That concept is the other side of the idea in traditional culture that “law is the tool of the rulers”.  The Chinese traditional view that “The law does not apply when everyone breaks the law” means that when there are many lawbreakers there is no need to think about the law.   This way of thinking is especially widespread in Asian countries where there is no rule of law tradition.  For example, the Taiwan students can ignore the law and occupy the Legislative Yuan and have behind-the-scenes support from several political parties.  Even Hong Kong which had an English colonial rule of law tradition has become widespread.  Some students and political forces are vigorously promoting the Occupy Central movement.  They hope to achieve their political goal by illegal means.  The China mainland is the same way.  In every social movement, rule of law is the most honest victim.  When it comes to lawyers, we see today how Chinese lawyers depart from the rule of law and appeal to public opinion.

In fact, from the actual meaning of rule of law, the law is not a tool for the ruler and is not a tool for society.   The law is an independent third party.  A judge is a referee and a relatively impartial one at that.   Justice is a platform that supports interactions between persons, between persons and organizations (including the government), and between organizations.   Taking that law simply as a tool of the ruler or a tool of society would both lead to abuse of the law.

Of course, people should not think of justice as simply being impartial.  Justice, no matter as a government agency or as the members of that agency, is all subject to influence by other factors.  They might be influenced by the government or they might be influenced by society.  Western countries are generally regarded as rule of law countries but much experience and research has shown that justice (an in particular the judges in the justice system) cannot avoid the influence of political forces.  So-called impartiality is only relative – it depends upon a professional spirit in the legal profession that demands that they adhere strictly to the standards of their profession above all else.

The third issue of understanding comes from with the question of just how China will establish its own system of rule of law.   For over a hundred years, China’s legal system has been deeply influenced by the West.  Since the beginning of reform and opening, it has been deeply influenced by the United States.  The West in the area of rule of law is ahead of China and so China must study it well.  However, this does not mean that China should import rule of law wholesale from the West.  China must avoid some of the pitfalls of the Western legal system.  For example, the United States often makes the rule of law become the rule of lawyers.  Just like other sectors, the Justice sector cannot ignore its own interests.  Law is the guarantee of social righteousness and fairness.  However one cannot simply assume that lawyers are the embodiment of social righteousness and fairness.  On the contrary, the Justice system can easily become a big interest group.   Lawyers themselves basically put their own personal interests above all else.

In the United States, lawyers have already become a very large interest group.  They are looking out for their own interests.  This results in big social problems.  For example, Americans like to sue one another.   They are also encouraged to sue and don’t like to come to an out-of-court settlement.  The formation of this attitude is linked to the very large number of lawyers in the United States.   While there is indeed the principle of supply and demand but in the American legal world the reality is just the opposite.  The great demand in the justice field in the United States was created by American lawyers acting as an interest group.   Bringing suit in court about anything has however brought the American legal system to the breaking point.  Its efficiency is declining and the social and economic costs are extremely high.

In building the rule of law there are political difficulties including who should do what and what should they do.  The focus of this argument is whether to retain the Political and Legal Affairs Commission.  Among intellectuals, many people have been angry with the Political and Legal Affairs Commission for a long while, as if the Political and Legal Affairs Commission were the biggest obstacle to building rule of law in China.  For some considerable period of time to come, this question will remain with us. People will debate it.  If we put aside the question of whether it should be retained, the most important question facing is how the functions of the Political and Legal Affairs Commission can be changed.  How can it be changed from recent years when it has been an agency for social stabilization to an agency that promotes building the rule of law?

In fact, ever since the Eighteenth Congress of the Chinese Communist Party, the Political and Legal Affairs Commission has been changing in that direction.  Its social stabilization functions it performed previously are become steadily less in evidence and are being replaced with the new concept of “social governance”.  Moreover, the Political and Legal Affairs Commission also made a breakthrough in pushing rule of law reform in a new direction, for example in the reform of the re-education through labor system.   In that field, the Political and Legal Affairs Commission still plays a major role.  As the functions of the Political and Legal Affairs Commission change, both society’s understanding of it and society’s views about it will also gradually change.

The rule of law does not simply descend from heaven.   It is the work of people who build rule of law.  The West spent over one hundred years building rule of law.   Over three decades have passed since China began its Reform and Opening policy.  During those years the road towards building rule of law had gone through many twists and turns.   Circumstances, however, are stronger than people.  Building the rule of law is a big trend because developments in the economy, society and politics are all favorable to building the rule of law.  Once the conditions are ripe — including the ruling party having a strong political will to see it through, members of society holding a scientific view of the concept of rule of law, and the existence of agencies building the rule of law — there will be solid grounds for believing that China too can build its own system of rule of law.

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http://www.caogen.com/blog/Infor_detail/62478.html

郑永年

中国重返法治国家建设

2014-08-21

字号:小中大

在最高的层次,不管人们对宪政抱有多大的争议,要确立有效的政治治理,宪政是唯一的选择。

在大规模的反腐败运动持续了很长一段时间后,中共宣布即将在10月召开的十八届四中全会,将专门讨论依法治国问题。这在中共历次全会中尚属首次,给众多对中国政治改革抱有很高期待 、而至今仍缺失任何有意义的政治改革而感到失望的人们,无疑是希望再燃。

把中国建设成为一个法治国家,是近代以来一代代中国人的理想,但实现这个理想的过程非常困难和曲折。法治国家的目标产生于清王朝解体之后。旧国家解体了,但新国家的建立则是非常 困难的事,法治国家建设更是提不到议事日程,在很长的历史时间里一直只是一个理想而已。近代以来,中国精英的首要任务就是建立一个强大、免于外敌入侵、独立的主权国家。中国基本 上经历了清朝解体、军阀混战、国民政府统一、外敌入侵(抗日战争)、国共内战和1949年之后以阶级斗争为主题的内部政治斗争等几个主要阶段。在这些阶段,法治国家建设并无法成为精 英的政治目标。

改革开放之后,建设法治国家终于正式提到执政党的最高议程上来。在邓小平时代,法制建设是中国政治改革的核心。在思想层面,当时提出了十六字政策,即“有法可依,有法必依,执法 必严,违法必究。”邓小平等领导人反复重申法制建设的重要性。从组织层面,当时设立的中央政法委员会(即政法委),就是为了推进法制建设的权力机构。

到1995年,中共十五大便正式把“法治”确定为国家政治改革的总体目标。“法制”和“法治”,一字之差,表明中国在法治国家建设上的新阶段。“法制”意味着要确立并实施一整套法律 体系,而“法治”则要解决政治问题,即法律不再仅仅是统治者的工具,任何组织包括执政党也必须服从法律——统治者和被统治者都要服从法律。

可惜的是,在进入新世纪之后,法治国家的建设在领导层的改革议程中消失了。尽管高层也不时提到要进行法治建设,但在实际层面,很多作为是相反的,法治不仅没有进步,反而出现了大 倒退。具体地说,中央政法委的功能从推进法治建设,很快就演变成为一个擅长于张扬国家机器暴力面的组织,主要体现在维稳机制的产生和大发展上。

没有人会否认社会稳定的重要性,问题在于社会稳定是建立在什么基础之上。维稳机制脱离了法治的轨道,走上了过度依赖暴力,结果造成了社会的更不稳定。同时,在指导思想和执政思路 上,这段时期也偏离了法治轨道。一些部门曲解“群众路线”,把此引入执法,演变成法律领域的民粹主义,导致了法律必须服从民意、法不责众的情况。

更为严峻的是,暴力部门(公、检、法)本身的性质发生了变化,尤其是变得极其腐败。在人民的眼中,这个部门的本来意义在于提供基本社会安全保障和社会正义,但现在是恰恰相反。不 难理解,在维稳的年代里,执政党和人民、政府和老百姓、国家与社会之间的关系遭到了何等巨大的破坏。尽管执政党的目标是建设和谐社会,但中国社会变得越来越不和谐了。今天人民对 政府及其官员的极端不信任,是和高强度的维稳有关的。

中国建设法治不容易

政府腐败蔓延开来,人们恨之入骨,因此中共十八大之后,中共高层进行了疾风骤雨式的反腐败运动。这个反腐败运动是前所未有的,在短短的时间里,大量的各级官员被查处。因此,也有 很多人出来对中国的未来表达出担忧,对反腐败运动会不会继续破坏中国的法治建设,感到很大的不确定性。

实际上,面临法治退步的局面,中国社会近年来一直在呼吁宪政,并把宪政和“中国梦”结合起来。

从这个意义上说,今天执政党再次转向法治建设,于国家、于社会都会是一种互赢的局面。对执政党来说,其意义是多层面的。首先,在最高的层次,不管人们对宪政抱有多大的争议,要确 立有效的政治治理,宪政是唯一的选择。人们反对中国照搬西方的宪政,但必须努力寻求建设中国本身的宪政。对宪政的呼吁尽管导致了大争论,但并没有人否认法治的重要性。从宪政的最 基本面来说,宪政即法治。

其二,在社会治理层面,前些年的维稳机制已经导致了“越维稳、越不稳定”的局面,要实现对社会的有效治理,必须重新返回到1980年代开始的法制和法治建设。在任何现代社会,法律是 社会治理的制度基础。其三,在强化执政党的合法性方面,法治无疑为人们指出了国家政治发展的大方向,并且能够从理论上说清楚执政党的性质,这必然会成为执政党执政合法性的巨大资 源。

于社会来说,法治能够为社会成员的政治、经济和社会权利提供有效的保护,在免于暴力恐惧的同时,无需诉诸于同样暴力的手段来和政府官员互动。在维稳机制下,老百姓各方面的权利得 不到保障,经常受到侵犯,老百姓也不得不诉诸于其他非正常的手段来应付政府官员,在很多情况下往往体现为暴力。

不过,建设法治并不是件容易的事情。执政党再次把此提升到最高的议程,仅仅是实现法治社会的一个政治前提。在这个过程中,仍然会面临无穷的认知和政治上的困难。在中国,认知的困 难至少表现在三个方面。一是来自传统文化。传统中国并没有发展出法治精神,所强调的是“依法治国”,即统治者使用法律来统治国家,是传统法家的思想。这个理念到今天仍然根深蒂固 ,非常流行。

改革开放以来,人们一直在争论“党大还是法大”的问题,就是对这一传统思维定式的担忧。实际上,不能把“党纪国法”理解成为党的干部只接受党纪的处置,而不受国法的惩罚。在现实 生活中也不是如此。今天提倡法治,也要以法治党,也就是要把法治引入对执政党本身的治理。党的干部官员一旦犯罪,不仅要接受党纪的惩罚,也要接受国法的惩罚。

第二种妨碍中国法治建设的认知是“法是社会的工具”。这种观点是传统文化中“法是统治者的工具”的对立面。中国传统有“法不责众”的说法——只要涉及的人多了,就无须考虑到法律 。这种观念在没有法治传统的亚洲尤其流行。例如,台湾学生可以无视法律来占领立法院,而一些政党则在背后支持。即使具有英国殖民地法治传统的香港,这种观念也在流行开来,一些学 者和政治力量在大力提倡“占领中环”运动,希望通过非法治的方式来实现政治目标。中国大陆更是如此,在每一次较大的社会运动中,法治往往是最廉洁的牺牲品。即使是律师群体,今天 也经常偏离法治而诉诸于民众。

实际上,从法治原来的意义上说,法律既不是统治者的工具,也不是社会的工具。法律是相对独立的第三方,法官就是裁判,是相对中立的裁判。作为第三者,司法是人与人之间、人与组织 (包括政府)之间、组织与组织之间互动的平台,简单地把法律视为无论是统治者还是社会的工具,都会导致法律的滥用。

当然,人们也不能简单地假设司法就是中立。司法,无论作为一种机构还是在这个机构工作的成员,都会受到其他因素的影响,既可以受到政府的影响,也可以受到社会力量的影响。西方一 般被视为是法治国家,但很多经验研究表明,司法(尤其是司法的主体法官)往往不可避免地要受政治力量的影响。所谓的中立只是在相对意义上的,就是要求司法界从业人员严格遵守专业 精神(professionalism),专业精神高于一切。

第三种认知发生在中国如何确立自己的法治体系这一层面。近代以来,中国的法律体系深受西方的影响。改革开放之后,受美国的影响更为深刻。西方在建设法治国家方面领先于中国,中国 须要好好学习。不过,这并不是说中国要照搬照抄西方,中国也必须避免西方法治体系的一些劣势。例如,美国的“以法治国”(rule of law)经常演变成为“律师治国”(rule of  lawyers)。如同其他领域,司法界本身也并非能够超越自己的利益。法律是社会正义和公正的保障,但不能简单地假定律师就是社会正义和公正的化身。相反,司法体制本身很容易演变成为 一个庞大的既得利益集团,律师也是基于自私利益之上的。

在美国,律师已经成为一个庞大的既得利益集团,追求自身的利益,这导致了巨大的社会问题。例如,美国人喜欢打官司,也被鼓励打官司,而不喜欢庭外和解。这种心态的形成和美国拥有 庞大的律师群体有关。照理说是需求创造供应,但在美国的司法界可能相反。大量的司法需求是美国律师作为一个既得利益集团创造出来的。什么事情都要诉诸于司法,反而促成美国的司法 体系不堪重负,不仅效率低下,而且社会经济成本无限高昂。

显然,中国要确立自己的法治体系,在认知层面,既要克服传统的“法律工具论”的思维,也要避免简单地照抄照搬西方的思维。

法治建设也面临实际政治的困难,包括谁来做、怎么做。这里争论的焦点在政法委的存留问题。在知识界,人们对政法委一直有诸多的抱怨,似乎政法委就是阻碍中国法治建设的最大阻碍。 在今后一段时间里,这个问题会长期存留下去,人们对此也会展开争论。如果避开其存留问题不谈,在目前的阶段重要的还是政法委的功能转变问题,就是要从前些年的维稳机制转变为促进 法治建设的机制。

实际上,十八大以来,政法委也在作这方面的转型。往日的维稳功能在不断淡化,被新的概念“社会治理”所取代。同时,政法委也在突出其法治改革的新方向,例如对劳教制度的改革。在 这方面,这个机构仍可大有作为。随着政法委功能的转变,社会对其的认知和看法也会逐渐得到改变。

法治不会从天上掉下来,都是人为建设的结果。西方花了一百多年的时间建立了法治。中国改革开放已经三十多年,法治建设也走过了相当曲折的道路。不过,形势比人强,法治建设是一个 大趋势,因为经济、社会和政治等方方面面的发展都在呼吁法治建设。一旦条件具备,包括执政党所具有的坚强的政治意志、社会成员科学的法治观念、法治建设机构的存在等等,就有充分 的理由相信,中国也能建设成自己的法治体系。

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