China: rule of law or rule by law? (Law).

THE GENERAL THEME of the Sixtenth Congress of the International Academy of Comparative Law is "Convergence of Legal Systems in the Twenty-First Century". Professor Gabriel Moens, Professor of Law at the University of Queensland and chair of the Congress, referred to the theme in the context of recent comparative law literature in the following terms:

 
   One idea that figures prominently in the relevant comparative law 
   literature concerns an observable tendency of the world's legal families to 
   embrace a common intellectual framework for the consideration and 
   resolution of current problems. 

The extent, if any, to which China can now he said to adopt such a "common intellectual framework" is a matter of great significance. At the level of form and rhetoric, change in the Chinese legal system since 1978 has been nothing short of revolutionary. At the level of practice, change is palpable, but its present significance and prognosis are extremely difficult to assess. There are elements of this development which it is appropriate to analyse in terms of "convergence".

At the time the reforms commenced, China had just emerged from the calamitous years of the Cultural Revolution, during which nothing that could be described as a legal system had been permitted to survive. Although there were some personnel from the previous system that could be drawn on, the era of the Four Modernisations required the reconstruction of legal institutions, virtually from scratch.

There are many aspects of the multifaceted process often described as "globalisation" which manifest the spread of concepts commonly ascribed to the West. Perhaps none has been more significant than what has been called "the rule of law revival". The dramatic quality of what is now being contemplated and even attempted in this respect in China, is emphasised by the fact that neither in the previous thirty-year history of the People's Republic nor, even more significantly, in the millennia of prior tradition of China's long civilisation, was there an institutional model anything like the rule of law administered by an independent judiciary.

The Chinese tradition preferred the rule of man to the rule of law. It is well expressed in one of the aphorisms attributed to Confucius: "I could adjudicate law suits as well as anyone. But I would prefer to make law suits unnecessary."

Accordingly, an imperial administrator who had efficiently disposed of a huge case-load would not have received any accolade. Rather, his competence would be questioned for allowing so much contentiousness to exist on his patch. The great Australian sinologist Pierre Ryckmans, writing under the pseudonym of Simon Leys, explained this tradition in annotations to his translation of the Analects of Confucius: