Randall Peerenboom

Ruling the Country in Accordance with Law Reflections on the Rule and Role of Law in Contemporary China

This article examines rule of law in China. Part 1 distinguishes between (i) substantive or thick theories of rule of law that incorporate elements of political morality, such as particular economic arrangements, forms of government, or conceptions of human rights; and (ii) formal or thin theories of rule of law that focus on features that any legal system must possess to function effectively as a system of laws. Although China does not endorse liberal democracy or a liberal conception of human rights, nevertheless the legal system is intended to serve many of the same general purposes as legal systems elsewhere. Accordingly, thin versions of rule of law are applicable to China. Part 2 then measures the performance of China’s legal system against the benchmark of certain features generally accepted by advocates of a thin theory of rule of law.

A Government of Laws: Democracy, rule of law and administrative law reform in the PRC

While agreeing that rule of law without democracy is the most likely path to political reform in the short term, I suggest that in the long run democracy will be necessary to solve some of the divisive social issues that have arisen in China as a result of economic reforms and social changes. I also suggest that Pans understanding of rule of law is overly simplistic and that his faith in the miraculous power of rule of law to put an end to corruption, resolve pluralistic conflicts and produce a just and harmonious society is wildly exaggerated. Finally, I expand the scope of Pans proposal to explore various possible administrative law reforms and legal reforms more generally required to realize rule of law in China, while suggesting that ultimately their success turns on issues of power that exceed the limits of the law.

Social Networks, Rule of Law and Economic Growth in China: The Elusive Pursuit of the Right Combination of Private and Public Ordering

Social networks have always been an integral part of every society. However, they are different and play a more prominent role in Asian societies. In particular, it will be argued that the relationship of private ordering, networks of relationships, and informal law to formal law are necessary in addition to rule of law for a sustained economic growth. This is evident in how various Asian countries escaped the financial crisis that crippled the region. Rather than an analysis of several different Asian societies, China will be the main focus.

Rule of Law Dynamics in an Era of International and Transnational Governance

The international and transnational nature of modern governance presents major challenges for the rule of law promotion agenda, at a time when the less than stellar results of traditional state-oriented rule of law promotion have led to increased doubts about the wisdom and feasibility of the enterprise. This is the introduction of a volume that seeks to contribute to our understanding of these new dimensions of rule of law promotion. The volume addresses the dynamics of rule of law in an era of international and transnational governance. It uses the term “dynamics” to refer not only to the increasing international and transnational dimensions of rule of law promotion, but also to the interaction between the international and domestic levels of law. It conceptualizes these levels as a two-way relationship: international law influences rule of law development at the domestic and local levels; at the same time, precisely because of its potential effects, rule of law standards are being sought at the international level itself.

Law and Development of Constitutional Democracy: Is China a Problem Case?

China is frequently portrayed as a problem case for the law and development movement because it has achieved economic growth with a weak legal system, has resisted the third wave of democratization, and has a poor record on civil and political rights. Is China a problem case? The author thinks not, or at least that it is too early to tell. China is now following the path of other East Asian countries that have achieved sustained economic growth, established rule of law, and developed constitutional or rights-based democracies, albeit not necessarily liberal rights-based democracies. At this stage of development, for all of its problems, China is meeting or exceeding expectations on most measures. China outperforms the average country in its income class in terms of economic growth, rule of law and most human rights measures, and other indicators of human well-being with the notable exception of civil and political rights.

Social Networks, Civil Society, Democracy and Rule of Law: A New Conceptual Framework

Although social networks exist in every society, they are widely believed to play a different and more prominent role in Asian societies, especially those with a Confucian heritage, than in Western states, particularly Western states with mature capitalist economies, liberal democratic political systems with robust civil societies, and well developed legal systems characterized by rule of law and a modern bureaucratic administrative system. This chapter article examines the role of social networks along two dimensions: political reform and the implementation and consolidation of democracy; and legal reforms aimed at establishing rule of law and a modern technocratic administrative system. Clearly there are wide variations in the nature and role of social networks in Asia, which is to be expected given the wide diversity in Asian societies in terms of religious and cultural practices, political systems, levels of economic development and legal systems. Rather than attempting a broad comparison of social networks throughout Asia, my main focus will be on China, with reference to the experiences of other countries where relevant. In some Western states such as Poland and other former Soviet Union republics, social groups in the form of civil society played a central role in the transition to democracy; in more established liberal democracies, civil society serves important functions in monitoring the state, holding government officials accountable and counterbalancing state power. Buoyed by the experiences of the former Soviet republics, a number of China scholars turned their attention in the early to mid 1990s to the topic of civil society and whether the proliferation of social organizations in China would lead to democracy. Many scholars cautioned that the concept of civil society as understood in the West may not be applicable to China; some pointed out that civil society was mainly a topic among foreign scholars and Chinese living in exile, and that the idea of civil society has not become part of popular discourse in China; still others argued that state-society relations are better understood in corporatist terms, and that the corporatist nature of social groups in China may serve to bolster the authoritarian regime rather than lead to democracy. I consider whether the concept of civil society is applicable to China and how civil society is best theorized given the differences between the liberal democratic social-political philosophies dominant in the West and alternative conceptions of the relations between the state, society and individual in China. To that end I develop four models for state-society relations: liberal democratic, statist socialist, neo-authoritarian and communitarian. These models combine social political philosophies with a corresponding set of institutions, practices and rules, thus redressing the relative neglect to date in theoretical treatments of civil society in China of the institutional basis of civil society, and in particular the nature of the legal system and its role in creating, structuring and shaping civil society. I also take up the relation between conceptions of civil society and social networks. What do we gain by the change in focus to social networks? What do we lose? I suggest that in calling attention to horizontal relations between individuals and groups in contemporary society, the focus on (affective) social networks offers some insights into the space between the individual and the state missed by the more vertical conceptions of civil society and corporatism. However, social networks are themselves embedded in a vertical structure of state-society relations. Moreover, in many cases, social networks are themselves oriented toward the state in a vertical relationship, and thus constitutive of the vertical state-society structure. In short, attending to social networks enriches our understanding of civil society in China, providing for a form of civil society with Chinese characteristics as it were, rather than offering an alternative framework for analysis. Put differently, social networks studies and theories must still be placed within broader political theories and institutional accounts. The four models that I develop address both the vertical and horizontal dimensions of civil society, thus redressing on the one hand the failure of corporatism to pay adequate attention to horizontal relationships, and on the other the tendency of affective social networks analyses to emphasize the horizontal dimension at the expense of the vertical component or to fail to adequately link up a discussion of affective social networks to different political conceptions of state-society relations.

The Emerging Post Washington, Post Beijing Consensus: Prospects and Pitfalls

The Washington Consensus (WC), which dominated the development world for over two decades, has been called into question on both theoretical and empirical grounds. Those countries that adhered most closely to the WC failed to achieve sustained growth, while the East Asian Tigers that rejected the WC and followed their own development path achieved remarkable growth. Many attributed the success of the early East Asian Tigers to the East Asian Model (EAM), and the more recent success of China to the China Model or Beijing Consensus (BC). However, the lost decade in Japan, the Global Financial Crisis (GFC), and growing concerns that China may be caught in the dreaded “middle-income trap” have called into question the viability of the EAM and its more specific China variants. The shortcomings of the WC and BC have led to attempts to develop new theories and approaches to development, variously referred to as the new development state, state capitalism, liberal neo-developmentalism, new structural economics, the Post Washington Consensus or the Post Washington, Post Beijing Consensus (PWBC). This article discusses the emerging consensus, delineates the main features of the PWBC, and analyzes both its potential and limits for guiding development policies in the post-GFC era.

Law and Development in China and India: The Advantages and Disadvantages of Front-Loading the Costs of Political Reform

At first glance, China and India seem to contradict the basic premise of the law and development movement that law plays a key causal role in economic growth. According to the standard view, China has enjoyed high growth rates despite weak legal institutions and the lack of rule of law, while Indias growth rates have lagged far behind Chinas despite a reputation for rule of law and stronger legal institutions. Closer examination however reveals that the experiences of China and India are not as inconsistent with the prevailing wisdom regarding the relationship between law and development as often suggested. China and India also offer contrasting paths to development, with India being the worlds largest developing country democracy, and China being the worlds largest authoritarian regime. Direct comparisons between China and India are thus inevitable, albeit problematic. Data is often unreliable, available for different years or collected in different ways. There is also considerable regional variation within both countries. Moreover, each country does better in some respects than others. By selecting particular measures, one can present either a positive or negative image of either. Accordingly, across the board generalizations about the superiority of one or the other are dubious. Generalizations are difficult even within a particular area such as rule of law or economic development.Nevertheless, some general observations are possible: China does better in terms of economic measures, poverty reduction, and most measures of human development. India does better in terms of political freedoms and income equality. Both have poor environmental records, low public health spending and repress minorities with secessionist tendencies. Both do relatively well compared to the average country in their income class on good governance measures.The revisionist view sees Indias democracy as a great asset in overcoming the middle-income blues. Conversely, although China is also experiencing the middle-income blues, it is following the path of other East Asian countries that were able to make the transition from middle to upper income countries, from weak institutions and rule of law to strong institutions and rule of law, and from authoritarianism to democracy. They did so by postponing democratization until a higher level of wealth was obtained and institutions had time to develop.At this point, the jury is still out as to whether China and India will join the ranks of upper income countries whose citizens enjoy rule of law, good governance and high standards of living and human development, and in Chinas case, democracy. Thus, it is too early to determine whether front-loading or postponing the costs of political reform will prove to have been the better approach.

China and the Middle-Income Trap: Toward a Post Washington, Post Beijing Consensus

Over the last thirty years, China has experienced tremendous growth, with many commentators attributing the rapid development to the “China Model” (CM) or the “Beijing Consensus” (BC). However, in recent years growth has slowed and an ever-increasing number of bears are predicting a financial crisis, economic collapse, and a very hard landing, perhaps even a lost decade a la Japan. All of this has led to heated debate about whether the CM is now exhausted, whether China is caught in “the middle-income trap” (MIT) and whether a new model is needed for next phase of development where China attempts the difficult transition from middle-income country to high-income country status. This article addresses the following five sets of issues. First, is there a CM or BC? If so, what does it entail, and does it differ from the model followed by other successful countries in East Asia? Second, is there a MIT? Is China stuck in the MIT or perhaps multiple MITs? Third, what adjustments to the economic model are required for China to continue its long march toward becoming a high-income country? Fourth, are political, legal and social reforms also required? If so, will all reforms proceed simultaneously or are reforms likely to be sequenced, with adjustments to the economy preceding reforms in other areas? Fifth, is there now a global convergence on a new model of development for developing countries – a Post-Washington, Post-Beijing Consensus?

A Tale of Two Judiciaries: Judicial Enforcement of Economic and Social Rights in China and India

Chinese courts have generally played a limited, and rather ineffectual, role in implementing economic and social rights (ESR). In contrast, Indian courts have adopted a much more activist approach, and have been long regarded as a global leader in judicial enforcement of ESR. Nevertheless, compared to the average lower-middle income country, China has done relatively well on most social and economic indicators, and generally outperforms India. This chapter considers two main questions. First, what accounts for the different approaches in India and China? Second, what lessons, positive and negative, can Chinese legal reformers learn from the Indian experience? Part I provides a general introduction to the historical, social, legal, political and economic context in India that has contributed to the active role of the judiciary and implementing ESR, and then contrasts the situation in China. Part II then considers some of the main controversies and debates surrounding the Indian judiciary’s aggressive role in implementing ESR. One of the main lessons is that while there may be some room for a more robust role for the courts in China in implementing ESR, the judiciary ought to proceed cautiously and adopt an approach that seeks to collaborate with rather than antagonize state and party organizations. Part III then discusses how the judiciary might play a more positive role in implementing ESR while minimizing some of the risks experienced by the Indian courts and other judiciaries that have emerged as global leaders in judicial enforcement of ESR. Part IV concludes with some general observations about judicial enforcement of ESR in developing countries.