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Letter from the President

China, the United States, and the Rule of Law If the United States and China are to embark on the path of bilateral rule of law cooperation, they had better do it realistically Robert A. Kapp

As the United States and China continue their search for a more cooperative future, many voices in the United States--in government, academia, and the non-governmental community--continue to press for meaningful US-China cooperation in extending the "rule of law" in the PRC.

From a business perspective, as from other points on the American spectrum, that is a good impulse. By contrast with the "rule of man"--that is, the conduct of society's affairs on the basis of personal relationships rather than on the basis of impersonal public written codes--most US businesspeople would regard the rule of law as the foundation of modern economic life.

The rule of law has automatic appeal in the United States. Few would demur at having all nations of the world living under the rule of law, as we perceive our own nation does. Many Americans might equate the whole idea of "rule of law" specifically with the American social-legal system, perhaps not fully aware of its differences from systems of other modern states. Working with China to strengthen the rule of law, many Americans would agree, might contribute positi vely to China's further evolution along paths they hope China will travel; help to assure that China's arrival as a world power remains within established international parameters; support American economic interests; and express deeply held American values without falling into another doomed effort to "convert" China by bluntly dictating its domestic behavior.

But if the United States and China are to embark on the path of bilateral rule of law cooperation, they had better do it realistically. This endeavor will not thrive if it does not somehow internalize the realities of China's development, including both the "law without lawyers" legacy and the institutional chaos of the Cultural Revolution era.

Starting over

"The Maoist assault on the body politic so fundamentally shook the rigid structure of state socialism that, without the resiliency of Zhou Enlai's government apparatuses, the People's Republic might have degenerated into a lawless anarchy. The delegitimation of all forms of authority in politics and culture created a power vacuum and a dangerous occasion for violence. The main force of the Cultural Revolution was directed against hierarchy. Disappointmen t at those who had lost their faith in socialist idealism, hatred of those who had abused their privileges, and a desire to settle old scores blinded the fanatical leaders of the Red Guards to all other issues....In a deeper sense, the damages inflicted upon the value system by the Maoists were the most difficult to heal. The frontal attack not only on party politics and elite culture but also on the 'habits of the heart,' which had been firmly rooted in the old traditions for generations, so thoroughly destroyed the social fabric that the post-Mao reconstruction began with the rudimentary education of etiquette. Even polite expressions such as 'good morning,' 'excuse me,' and 'thank you' had to be reintroduced and relearned as legitimate utterances in social intercourse...." (pp.176-77)

Since the end of the Cultural Revolution, China has promulgated a vast body of criminal and economic law, and major legislation continues to pour forth from the National People's Congress. The training of lawyers has proceeded apace. Still, the complex interrelationship of laws, policies, and regulations issued by a welter of State organizations remains difficult for foreigners and Chinese alike to understand. Uniform application of many laws remains a distant goal.

Building a solid foundation

"The features of the market economy are material interests, autonomy, equality, competition, and openness. These features...of the market economy are its strengths, but they also help breed crime. The sole concentration on material gain can lead some people to act without regard for consequences, for example making counterfeit inferior products, manufacturing and selling drugs, stealing and marketing cultural artifacts, smuggling...and conducting all manner of economic fraud and swindling....Using illicit methods to pursue profit in such ways, economic conduct becomes criminal conduct....

"[T]he autonomy of the individual economic player...gravely weakens the capacity of the government to oversee and supervise....In such a situation, greedy individuals can easily take advantage of lax management and negligent supervision to make a lot of illicit wealth through corruption, theft, bribery, and other criminal activities.

"Third...[t]he mar ket economy offers equality of opportunity and the power to conduct economic exchange on an equal basis, but it also fosters a great deal of practical inequality. When officials and businesses conspire; when authority is traded for money; when bribery breeds more bribery, the unequal economic distribution flourishes. Some people, seeking 'compensation' for their grievances, turn without remorse to crime to seize their share of society's wealth....

"Fourth, the competitive nature of the market economy mercilessly leads some units into serious difficulties, including cessation of production, shutdowns and bankruptcies....As people lose the work that sustains them and their needs go unmet...some lose their spiritual bearings. For self-preservation, some turn to theft, armed crimes, fraud, and even murder." (pp.565-66)

The quotations should remind us of the dimensions of "promoting the rule of law" in China. Simply explaining American legal institutions will not create rapid changes in China's legal system. Similarly, if the pursuit of the "rule of law" becomes just another US target, like market share or an export number, to be achieved in China by a fixed date, the effort could well appear to fail.

Let any rule of law initiative start with small, finite programs, backed by a dependable long-term commitment of real expertise. There's much to be gained in "rule of law" engagement, but it will not be a dilettante's game.