6. Ruling the Country by Law and Promoting the Modernization of State Governance

Marxists hold that “The state is nothing but a machine used by one class to oppress the other class and, in this respect, there is no difference between a democratic republic and a monarchy.” (Marx and Engels 2009, p. 111); “The state is the product and manifestation of the irreconcilability of class contradiction”) (Lenin 2012, p. 114); therefore, “the special organ that systematically uses violence and coercion to force the people to submit themselves to violence…is called the state” (Lenin 2009, p. 285); “political rule anywhere is based on the performance of certain social functions and it can continue to exist only when it performs such social functions” (Marx and Engels 2012, pp. 559–560) “The state is a structure separated from society and made of people who are specialized, almost specialized, or mainly specialized in administration. People are divided into two groups: the administrators and the administrated.” (Lenin 2009, p. 288).

At the First Plenary Session of the Chinese People's Political Consultative Conference on February 15, 1978, Mr. Liang Shuming pointed out that: “It is a good thing that now we are again able to discuss the Constitution and take part in the adoption of the Constitution…My personal experience is that the Constitution has often been a mere scrap of paper and state governance has mainly relied on the rule of man, rather than the rule of law, in China. In the 30 years since the founding of the PRC, although we have adopted our own Constitution, but the Constitution has not been regarded as the highest authority in the country, nor has it been universally observed. This conclusion is based on the actual situations of several main historical periods in the past 30 years…But now I want to point out that the time for the rule of man has already gone. Today we no longer have great leaders like Mao Zedong, who had high prestige among the people, and such a leader will not emerge any time soon. Therefore even if someone wants to practice the rule of man, it would be difficult for him to do so. Moreover, after many years of practice, especially after the ten-year lesson of “Cultural Revolution”, which had been paid in blood, the Chinese people have had a personal experience of the harms of the rule of man and their desire and demand for the rule of law have become increasingly strong. Therefore, it is very necessary and important that we discuss the Constitution today. We must treat this issue with utmost care and seriousness. China is now in a gradual transition from the rule of man to the rule of law. Today is a turning point. From now on, we must gradually rely on the authority of the Constitution and laws in ruling the country. Ruling the country by law has become a historical trend that nobody can stop.” Wang (2004, pp. 297–298).

At a seminar on the theory of the rule of law, organized by the Law Institute of Chinese Academy of Social Sciences in April 1996, the majority of the participants agreed that: “Ruling the country by law, namely the rule of law, means to run a country in accordance with the will of the people and with laws that reflect the objective law of social development and that the political, economic, and social activities of the state and citizens’ activities in all areas must all be carried out in accordance with law, and not subject to the interference, impediment and sabotage by any individual. Its basic requirements are: legislative organs exercise legislative power in accordance with law; government organs exercise administrative power in accordance with law; judicial organs exercise judicial power in accordance with law; citizens’ rights and interests are truly protected by law; and the power of state organs are strictly controlled by law.” Li (2005, p. 462).

Currently no consensus has been reached in Chinese theoretical circle on the definition of the concept of “state governance”. Different people have different understandings of and give different definitions to this concept. An article published in the journal Seeking Truth holds that: “State governance means that the Party leads the people to administer state affairs and manage economic, cultural and social undertakings through various channels and in various ways in accordance with the law.” See Qiu (2014). Professor Wang Puqu of Peking University holds that: “‘State governance’ is actually the system and process whereby the CPC represents and leads the people to take control of political power and exercise the ruling power. It means the administration of state and social affairs by the CPC in a scientific, lawful and effective way under the precondition of adhering to, strengthening, and improving the basic political and economic systems and the framework under which the CPC runs the country by commanding the whole situation and coordinating various efforts.” See Puqu (2014). This author holds that, in the Chinese discourse system, the description and definition of the concept of “state governance” should be closely centered around the “organic unity of the three principles”, which is not only the essential characteristic of socialist democratic politics with Chinese characteristics, but also the key to understanding the concept of “state governance”.

An examination of the history of human civilization shows that law, legal system, rule of law, ruling the country by law or ruling the country in accordance with law have been the main and effective way of state and social governance, establishment of order, and adjustment of social relations ever since the emergence of state in human history. Most of the modern developed countries in contemporary time are countries under the rule of law, whereas “state governance”, which emerged in mid and late 20th Century, is only an idea and method that overlaps with the concept of a state under the rule of law. It is a supplement, improvement and innovative development, but not a replacement, of the rule of law or ruling the country by law. Today, most countries of the world generally do not emphasize the idea and the system of “state governance”, but by adhering to the rule of law or ruling the country by law, have achieved the expected objectives of state governance. In China, state governance and ruling the country by law are in essence largely identical but with minor differences, and they reach the same goal by different means.

See Keping (2014), He (2014), and Li (2014).

In fact the Chinese Constitution uses the word “administer” (or manage) in more than 20 different places—for example Article 2 of the Constitution provides that “The people administer state affairs and manage economic, cultural and social affairs through various channels and in various ways in accordance with the law”—but never uses the word “governance”. Among the 240 currently effective laws in China, over a dozen have the word “administration” in their titles, for examples, Public Security Administration Punishments Law, Law on the Administration of Exit and Entry of Citizens, and Law on the Administration of Entry and Exit of Foreigners, but none of them contains the word “governance” in its title.

Some scholars hold that the concept of state governance should also include such content as the idea, process, and effect of state governance.

See Yao (2014).

Mr. Shi Zhihong, Vice Chairman of the Committee for Social and Legal Affairs of Chinese People's Political Consultative Conference, calls “the modernization of state governance system and state governance ability” “the fifth modernization”. He believes that the modernization of state governance system relies on sound institutions, superior state governance capacity and a contingent of high quality cadres. In this sense, the modernization of state governance system and state governance capacity can be considered the “fifth modernization”, in addition to the “four modernizations” (modernization of agriculture, industry, national defense and science and technology) put forward by the CPC. This means that the governance system and capacity of the Party and state in China are developing towards the goals of keeping pace with the times, following the objective law of development, and displaying great creativity (Shi 2013).

See Qiu (2014). Another scholar holds that “The rule of law is a criterion for evaluating the maturity of an institution as well as a basic way of promoting the finalization of a institution…without a reliable rule of law safeguard, an institution would lack authority and executive capacity, the modernization of state government system would be out of the question, and state governance ability would be like flower’s reflection in the mirror or moon’s shadow on the water.” (Zhang 2014). Hu Jianmiao holds that: “Modernizing state governance means making it more democratic, scientific and civilized and, most importantly, bringing it under the rule of law.” (Hu 2014).

Biwu (1979, p. 153).

Fuller (1969, p. 106).

Xi (2013).

According to a study by Chinese scholars, the word “civilization” first appeared in modern British history. In the beginning of the 18th Century, after Scotland was united with England, the civil law of Scotland was integrated into the common law of England, and word “civilization” was created to refer to law or trial. The 1755 Dictionary of the English Language defined civilization as “an expert of civil law or a professor of Roman law.” In the second half of the 18th Century, enlightenment thinkers used the world “civilization” as the opposite of “barbarism” to denounce the rule of darkness in the Middle Ages. Therefore, the progress and development of law, private law and judicial trial has become the most important indicator of the development of human civilization. Today, the civilization of rule of law is indispensable in the evaluation of modernization of state governance.

Gibson and Gouws (1998, pp. 38–39).

“Justiciability” in the sense of the rule of law has two aspects: from the citizen’s point of view, it means that a citizen whose legally prescribed rights are infringed upon should be able to file a lawsuit at the court to seek protection and remedy of his rights in accordance with law; from the court’s point of view, it means that the court may accept a case and make corresponding judgment in accordance with specific provisions of law. Currently, among the more than 240 effective laws in China, only about 40 can be taken as the basis of adjudication by the court and be cited in a judgment. Another interpretation of “justiciability” is that a subject of legal relationship who believes himself subjected to unfair treatment and his rights infringed upon can and should seek remedy through legal proceedings in accordance with law and that the court should be the last resort for achieving fairness and justice in the legal sense.

Quoted in Keping (2014, p. 32).

Marx (1995, p. 176).

For examples, the Legislation Law provides in Article 3 that: “Legislation shall be conducted under the fundamental principles laid down in the Constitution…and in adherence to the…leadership of the Communist Party of China”; the Organic Law of Villagers’ Committees provides in Article 4 that: “The grassroots organizations of the Communist Party of China in the countryside shall work in accordance with the Constitution of the Communist Party of China, play its role as the leading core, guide and support villagers' committees in their exercise of functions and powers, and, under the Constitution and the law, provide support and safeguard to villagers in their self-government activities and in their direct exercise of democratic rights”; and the Law on Industrial Enterprises Owned by the Whole People provides in Article 8 that “Grassroots organizations of the Chinese Communist Party in an enterprises shall guarantee and supervise the implementation of the guiding principles and policies of the Party and the state in the enterprise.”

In an article entitled “State Governance and Basic State Capacities”, Professor Wang Shaoguang puts “coercive capacity” at the top of the list of eight basic capacities of state governance. He writes that: “Coercion does not sound very nice, but the biggest difference between the state and other human organizations is that the former can lawfully monopolize violence and use coercive force. Externally, such coercive force must be able to defend the country against foreign threat, thus requiring the state to establish and maintain a regular army; internally, this coercive force must be able to maintain peace and stability, thus requiring the state to establish a contingent of well-trained, well-funded, highly disciplined and uniformly dressed professional police.” See Wang (2014).

See the Speech Given by Party Secretary General Xi Jinping at the Second Collective Study Session of the Politburo of the Eighteenth CPC Central Committee.

In adjusting social relations through legislation, we should ensure that “Justice is slow but sure” and that proportions of civil law, the criminal law, administrative law, economic law and social law in the legal system are balanced and appropriate. Just as famous British jurist Maine said: the level of civilization of a country can be judged by the proportion between its civil and criminal laws in this country: a semi-civilized country has less civil law but more criminal whereas a civilized country has more civil law but less criminal law.

Paine (1981, pp. 35–36).

See the Speech Given by Party Secretary General Xi Jinping at the Second Collective Study Session of the Politburo of the Eighteenth CPC Central Committee.

See Keping (2014, pp. 59–60).

Yu (2013).

Fukuyama (2013, p. 5).

Deng (1994, p. 168).

In legislative science, the session system is a system on the space of time between two sessions of a legislative organ and the time duration of each session. This system is usually provided for in the Constitution and relevant laws. The duration of the session of a legislative organ begins on the date the legislative organ is convened and ends on the date the session is closed. Currently the duration of the annual session of the NPC is too short (less than ten days), which is not conducive to the implementation of democratic legislation and to the performance of functions by the NPC.

Quoted in Zhang (2014).

Fukuyama (2013, p. 5).

In recent years, Professor Ma Huaide has been advocating the idea of “the rule of law GDP” in mass media, claiming that “the rule of law GDP” is more important than “economic GDP” and calling for the establishment of “the rule of law GDP” and using it to promote the rule of administrative law and to assess the performance of the government. Explorations on the quantitative assessment of indices of local rule of law have been carried out in some cities, including Shenzhen, Wuxi, Kunming, Chengdu and Yuhang District of Hangzhou City. The “Index System for the Assessment of Social Governance in China”, presided over by Professor Yu Keping, and the “Awards for the Construction of Law-based Government in China”, presided over by Professor Ying Songnian and Professor Ma Huaide, have both achieved positive results.

Since this author is uncertain about the formulation of “legislative corruption”, but has indeed witnessed such phenomena as “departmentalization of administrative power, profitization of departmental power, and legalization of departmental interest”, legislations with obvious marks of departmental interest or the interest of special groups, and legalization of abnormal interest pattern or power relations in the legislative process, the term “wrongful legislation” is used here to describe the above phenomena. Moreover, any power not subjected to supervision will inevitably lead to corruption. Today, the phenomenon of corruption has emerged in all fields of public power, but the corruption in the field of legislative power has not yet been paid enough attention to in China.