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Abstract
This essay advocates for adopting a disaggregated approach when evaluating the progress that non-democratic countries like China are making towards establishing the rule of law. An understanding that the rule of law may develop in some areas, though not in others, allows us to identify the structural underpinnings of a limited rule-of-law system. The essay adopts a procedural definition of the rule of law as rules-based governance and argues that the regularized enforcement of laws and regulations is the key precondition for its emergence. This study defines regularized enforcement as consistent, transparent, and procedurally fair enforcement and identifies the conditions under which such enforcement may emerge. Although bureaucracies with clear mandates can provide this type of enforcement, it is more likely to develop when courts of law arise as the main enforcers of laws and regulations. The theoretical argument about the issue-specific rule of law in China is illustrated through three case studies. The first is of government accountability, where progress towards the rule of law has been minimal. The second is of intellectual property rights, where regularized enforcement has unexpectedly developed, especially for patents and copyrights. The third area is environmental protection, which is explicitly following the model of intellectual property rights. The essay concludes by arguing that an issue-specific approach allows us to grasp more fully the variation in good governance and progress towards establishing the rule of law that exists on the ground in China.
Notes
Disclosure statement
The author reports no conflicts of interest. The author alone is responsible for the content and writing of this article.
Notes on contributor
Martin K. Dimitrov is Associate Professor of Political Science at Tulane University and the Associate Editor for Asia of Problems of Post-Communism. His books include Piracy and the State: The Politics of Intellectual Property Rights in China (Cambridge University Press, 2009); Why Communism Did Not Collapse: Understanding Authoritarian Regime Resilience in Asia and Europe (Cambridge University Press, 2013); and The Politics of Socialist Consumption (Ciela Publishers, 2017). He is currently completing a book manuscript entitled Dictatorship and Information: Autocratic Regime Resilience in Communist Europe and China and two edited volumes: China-Cuba: Trajectories of Post-Revolutionary Governance and Popular Authoritarianism: The Quest for Regime Durability. He has conducted fieldwork in China, Taiwan, Hong Kong, Russia, Germany, France, the Czech Republic, Bulgaria, and Cuba.
Notes
1 Margaret Jane Radin, “Reconsidering the Rule of Law,” 781-819; Jeremy Waldron, “Is the Rule of Law an Essentially Contested Concept (in Florida)?,” 137–164.
2 Albert Venn Dicey, Lectures Introductory to the Study of the Law of the Constitution, 1885; Lon Fuller, The Morality of Law, 1964; and Joseph Raz, The Authority of Law: Essays on Law and Morality, 1979.
3 John Rawls, A Theory of Justice, 1971; Raz, The Authority of Law.
4 Thin and thick definitions and examples are based on Randall Peerenboom, China’s Long March toward Rule of Law, 2002 and Brian Tamanaha, On the Rule of Law: History, Politics, Theory, 2004.
5 Barry R. Weingast, “Political Foundations of Democracy and the Rule of Law,” 245–263; Mark Ungar, Elusive Reform: Democracy and the Rule of Law in Latin America, 2002.
6 Peerenboom, China’s Long March toward Rule of Law.
7 Yongnian Zheng, “From Rule of Law to Rule by Law? A Realistic View of China’s Legal Development,” 1998; Yongnian Zheng, Globalization and State Transformation in China, 187–202; Francis Fukuyama, “Reflections on Chinese Governance.”
8 Rebecca Bill Chavez, The Rule of Law in Nascent Democracies: Judicial Politics in Argentina, 2004.
9 Robert D. Putnam, with Robert Leonardi and Raffaella Y. Nanetti, Making Democracy Work: Civic Traditions in Modern Italy, 1993; Robert Mickey, Paths Out of Dixie: The Democratization of Authoritarian Enclaves in the Deep South, 1944–1972, 2015.
10 Two exceptions are Phyllis Dininio and Robert Orttung, “Explaining Patterns of Corruption in the Russian Regions,” 500–529; Yuhua Wang, Tying the Autocrat’s Hands: The Rise of the Rule of Law in China, 2015.
11 On Chile, see Robert Barros, “Dictatorship and the Rule of Law: Rules and Military Power in Pinochet’s Chile,” 188–219. On Spain, see José J. Toharia, “Judicial Independence in an Authoritarian Regime: The Case of Contemporary Spain,” 475–496.
12 Tom R. Tyler, Why People Obey the Law, 1990.
13 Mei Y. Gechlik, Protecting Intellectual Property Rights in Chinese Courts: An Analysis of Recent Patent Judgments, 7–9.
14 Margaret Y. K. Woo and Yaxin Wang, “Civil Justice in China: An Empirical Study of Courts in Three Provinces,” 911–940.
15 Gechlik, Protecting Intellectual Property Rights in Chinese Courts.
16 On the low professionalism of bureaucrats engaged in trademark enforcement, see Daniel C. K. Chow, A Primer on Foreign Investment Enterprises and Protection of Intellectual Property Rights in China, 2002; Loke-Khoon Tan, Pirates in the Middle Kingdom: The Art of Trademark War, 2004; Rebecca Ordish and Alan Adcock, China Intellectual Property Challenges and Solutions: An Essential Business Guide, 2008.
17 On average, about 30% of the cases handled by the IPR tribunals are appealed, whereas less than 1% of the cases handled by the administrative agencies with a trademark enforcement mandate are appealed. See Martin K. Dimitrov, Piracy and the State: The Politics of Intellectual Property Rights in China, 2009.
18 On Wukan, see James Pomfret, “Wukan Model Faces Extinction,” 2016. On Wenling, see James S. Fishkin, Baogang He, Robert C. Luskin, and Alice Siu, “Deliberative Democracy in an Unlikely Place: Deliberative Polling in China,” 435–448. Weixia deliberative assembly (Guangdong province): personal observation by the author, June 16, 2016.
19 Lily L. Tsai, Accountability without Democracy: Solidary Groups and Public Goods Provision in Rural China, 2007.
20 China interview 120712, with a Guizhou ribao journalist (Guiyang).
21 Benjamin L. Liebman, “The Media and the Courts: Towards Competitive Supervision?,” 833–850.
22 China interview 020919B, with two Ministry of Supervision employees (Beijing); China interview 020918 with a GACEB employee (Beijing).
24 Ibid.
26 He Zengke, Fanfu xinlu: Zhuanxingqi Zhongguo fubai wenti yanjiu, 2002.
27 China interview 020129A, with two judges from the No.1 Intermediate People’s Court (head of the Case Acceptance Division and vice head of the General Affairs Office) (Shanghai).
28 Calculated from Zhongguo falü nianjian, various years.
29 Ibid.
30 China interview 020129A; Zhongguo falü nianjian 2015, 139–140.
31 Dimitrov, Piracy and the State.
32 In 2014, foreign, Hong Kong, Macau, and Taiwan cases accounted for 2.2% of the first-instance IPR caseload (calculated from Zhongguo zhishi chanquan nianjian 2015, 445–446).
34 Ibid.
35 Zhongguo zhishi chanquan sifa baohu nianjian 2013 (Beijing: Falü Chubanshe, 2014), 88.
36 Zhongguo zhishi chanquan nianjian 2015 (Beijing: Zhishi Chanquan Chubanshe, 2015), 98.
37 Zhongguo falü nianjian 2015 (Beijing: Zhongguo falü nianjian chubanshe, 2015), 133–134.
38 Zhongguo zhishi chanquan nianjian 2004, 335. The majority of the remaining cases were either withdrawn or settled before they reached trial.
39 In principle, only cases involving state secrets and the rights of minors should be heard behind closed doors.
40 Zhongguo zhishi chanquan nianjian 2014 (Beijing: Zhishi Chanquan Chubanshe, 2014), 109.
41 Calculated from Zhongguo falü nianjian 2015, 1014–1016 and Zhongguo zhishi chanquan nianjian 2015, 445–446.
42 International Intellectual Property Alliance 2006 Special 301 Report, 111, www.iipa.com.
43 The Administration of Quality Supervision, Inspection, and Quarantine is also known as the Technical Supervision Bureau at the provincial level and below. Thus, the AQSIQ and the TSB are the same entity.
44 For more details, see Dimitrov, Piracy and the State.
45 In 2004–2005, the author conducted over fifty interviews with bureaucrats, lawyers, and NGOs engaged in environmental protection in China. The interviews took place in Beijing, Shanghai, Guangzhou, Haikou, and Dalian.
46 These agencies are the State Development Reform Commission, the Ministry of Construction, the SAIC, the AQSIQ, the Ministry of Land and Resources, the Ministry of Water Resources, the State Oceanographic Administration, the State Forestry Agency, the Ministry of Agriculture, the Ministry of Health, and the Ministry of Commerce.
47 Zhongguo huanjing nianjian 2003 (Beijing: Zhongguo huanjing kexue chubanshe, 2003), 218.
48 Rachel E. Stern, “The Political Logic of China’s New Environmental Courts,” 53–74.
49 Zhongguo falü nianjian 2015, 138-139.
50 Ibid.
51 Notes from a meeting with judges from the Qingzhen Environmental Court (Guizhou province) attended by the author, July 18, 2012.
52 “China’s First Environmental Public Interest Litigation: Green NGOs Win,” Asia Environmental Governance Blog. http://asia-environment.vermontlaw.edu/2015/10/30/chinas-first-environmental-public-interest-litigation-green-ngos-win/.