Teaching Comparative

Rule of law or Rule by law

The universe of blogs is quite inbred. It's probably a sign that there are more bloggers than significant ideas.

Or it could be a sign that blog audiences are very small and specialized.

Most of you who read my little thoughts here are involved in teaching comparative government and politics. I'm citing a blog that aims to inform lawyers and business people. That blog cites another which seems aimed at people doing business in China.

So why all the referrals? In this case the referrals are about the rule of law in China.

Rule of law is a complex and important concept for students of comparative politics. Hopefully, these comments will help illustrate the idea and its ramifications.


An advertisement in Xian, " According to the Rule of Law: Construct a Nation with a Socialist Legal System" (Photo by Stephen W. Lewis, 2000)

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Dan Harris at China Law Blog (China Law is policy) quotes David Wolf's blog, Silicon Hutong: When is Innovation Indigenous? on the relationship between law and policy in China. It's an important distinction for students of comparative politics.

David Wolf wrote:
"The Chinese government is not interested in legislating on the basis of establishing a principle, taking into account hypothetical problems that might arise in the future (an approach that stands opposed to the Talmudic traditions at least, and probably those of Justinian, English Common Law, and the Napoleonic code).

"Indeed, the nation's bureaucrats and policy makers are far more interested in using the law as a tool to serve near-term policy goals, rather than use law to build a system that will withstand the test of history. (Hence the old saw "rule by law, rather than rule of law.")

"This is another one of those critical differences in viewpoint between the two cultures. In the west, policy and government action occur with the framework of law. In China, the law occurs within the framework of policy and government action.

"Is the law important in China? Absolutely, and getting more so over time.

"But pay attention to policy. Those will tell you how the laws will be interpreted and acted upon."


Don Harris commented:
"Wolf has it right. 

"Without an independent judiciary, China's courts are doomed to be a policy arm of the government.  This does not mean China's courts will necessarily rule unfairly, because one of the government's policies is that the courts be respected and fairness is a necessary precondition for that.  But this does mean that we should not expect much innovation from China's courts and we certainly cannot expect them to go much against governmental goals, if at all. 

"China's courts will go with the governmental tide, not against it."

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• So, is an independent judiciary necessary for rule of law?
• Must the judiciary have the power to negate the decisions of policy and law making parts of the system?
• Is fairness an adequate substitute for independence?
• Where does the power of the judiciary come from in a political system?
• What differences does it make if there's nothing in the political culture resembling separation of powers or an adversarial legal tradition?

posted by Ken Wedding @ 8:30 AM