2. The Historical Process of Constructing Socialist Rule of Law with Chinese Characteristics

Lou (1955).

Including the Organic Regulations of the Urban Residents Committees, Regulations on Residence Registration, Model Articles of Association for Agricultural Producers’ Cooperatives, Regulations on Arrest and Detention, and Regulations of the People’s Republic of China on Administrative Penalties for Public Security.

General Office of the Standing Committee of the National People’s Congress (1991).

He and Lu (1993).

Editorial Committee for Contemporary China Pictorial (1995).

See Han (1998).

You et al. (1993).

Editorial Department for Law Yearbook of China (1987).

See Chen (1985).

Peng (1993).

“The rule of law” and the “legal system” are two different concepts and a distinction must be made between them both in theory and in practice. The main differences between the two concepts are the followings:

Firstly, “the rule of law” is a dynamic concept, meaning “regulation by law” or “governance by law” and indicating the condition, mode, degree, and process of the operation of law, whereas legal system is a static concept referring to “the system of law”, “laws and institutions”, or “laws and the system of law”, namely the condition, mode and form of the existence of laws or the system of law.

Secondly, the two concepts have different cultural deposits. The concept of the rule of law emerged in ancient Greece and Rome and gradually matured during the period of bourgeois revolution in modern history. After thousands of years of historical development, now its content and form have been basically recognized by most cultures. For example, the many ideas relating to the rule of law, such as the authority of law, transparency, popular sovereignty, safeguarding of human rights, and check and balance of power, have more or less been integrated into the legal culture of different countries. The expression and understanding of the concept of the rule of law have been established by usage in the international community, whereas the concept of “legal system” does not have such a profound historical and cultural deposit. In China, the cultural deposit of the “legal system” is in the final analysis only a kind of “kingly system”. Replacing the concept of “the rule of law” with that of “legal system” is neither compatible with the original cultural intention of the “the rule of law”, nor conducive to the communication and exchange between China and the international community.

Thirdly, the two concepts have different connotations. Currently, although the concrete meaning of “the rule of law” used by the jurists and politicians may vary from country to country, it is mainly a concept opposite to “the rule of man”, with a relatively consistent and definite connotation. In contrast, the concept of “legal system” has no prescriptive connotation, and is often used in a more arbitrary way. Any country has its own legal system in any given period of time, but not necessarily implements the rule of law. Therefore, both a slavery society and a feudal society could establish its own legal system. Generally speaking, the established meaning of the concept “legal system” is “system of law” whereas the concept “the rule of law” is a common legal cultural heritage of mankind, rather than a patent of the bourgeoisie.

Fourthly, the two concepts have different significance of existence. The rule of law is a concept opposite to the rule of man. As such, it has clear-cut characteristics and functions of opposing and resisting the rule of man and ensuring lasting political stability. In contrast, “legal system” is a neutral concept relative to economic system, political system, and cultural system. There is no difference between ancient and contemporary or between Chinese and foreign concepts of “legal system”. In a general sense, the concept has no time feature. It does not clearly express a stance against the rule of man and it is possible to have a “legal system under the rule of man”. For example, the Nazi Regime in Hitler’s Germany and the Apartheid Regime in South Africa had both implemented their policies through a legal system.

Fifthly, the two concepts are established on different bases. The concept of the rule of law, as an inevitable result of the development of modern commodity (market) economy and democratic politics, has been accepted by many countries and become a strategy of state governance. That is to say that the rule of law must take the market economy and democratic politics as its basis. It is a method of ruling the country that exists on the basis of market economy and under the democratic political system. Therefore, “the market economy is an economy under the rule of law” and the rule of law takes the market economy as its basis of existence and development. There will be no rule of law without the market economy, and vice versa. A legal system can be built on any form of economic basis that has existed since the emergence of law in human history, whereas the rule of law is inherent linked to democratic politics: the latter is the necessary basis and precondition for the emergence, existence and development of the former and the former is the basic mode and forceful safeguard of the existence and maintenance of the latter. Therefore, in a certain sense, it can be said that: “democratic politics is the politics under the rule of law”, but there is no necessary linkage between democratic politics and legal system, which can also be linked to oligarchy, monarchy and fascism.

Literature Research Office of the CPC Central Committee (1998).