Powerful, Different, Equal by Peter B. Walker

Author:Peter B. Walker
Language: eng
Format: epub
Publisher: LID Publishing
Published: 2019-07-14T16:00:00+00:00

THE RULE OF LAW IS STEADILY TAKING HOLD IN CHINA, BUT THE JUDICIAL SYSTEM IS ACCOUNTABLE TO THE CHINESE COMMUNIST PARTY, NOT INDEPENDENT FROM IT

When exploring the rule of law in the US and China, understanding the different contexts and mindsets is important. The US Constitution incorporated the rule of law from day one, reflecting its well-established position in Europe. The strong focus on ideology meant laws were enacted to represent the aspirations of those who drafted them. Frequently, however, not a great deal of attention was given to the system’s ability to implement the law. Examples of this include the right to vote and equal pay. In China, the opposite is true, with the overwhelming focus on the pragmatics over the ideological. For this reason, civilian laws are generally not put into place until the Chinese authorities are capable of administering them. Even then, these laws are still subject to interpretation by the government if they become an issue of stability.

Prior to the collapse of the Qing dynasty in 1911, government officials settled major disputes at senior levels of the central government and minor disputes at the local government level. Individuals with the best connections, or ‘guanxi’ as it is known in China, and the greatest clout generally prevailed. Bribery also played an important role in determining outcomes. The rule of law was first established shortly after the end of the Qing dynasty, but the warlords period and the ensuing civil war meant these laws existed only as a formality for some time. Mao initially approved the rule of law, but quickly banned all lawyers after concluding that laws, and lawyers, were inherently hindering the control of the party.

Deng was the first leader to successfully implement the institutional rule of law between 1978 and 1981. One of the challenges was to recruit, educate and train high quality lawyers and judges. The first step was to reopen law schools at universities in 1979; next the All-China Lawyers Association was established in 1986 with the first official licensing exam; the first law firm was established two years later in Shanghai. The population of lawyers grew, but the vast majority of civil cases continued to be settled through less formal measures such as arbitration, collective action and mediation.10 As of 2007, China only had about 118,000 licensed lawyers, equal to about one lawyer per every ten thousand citizens.11

While the number of practicing lawyers continues to grow in China, the gap between the US and China is huge. The US has roughly one lawyer per 300 citizens.12 However, this is also reflective of the US attitude towards the law, which has historically been very open to adjustment and interpretation on a case-by-case nature. This also reflects the ability individuals, corporations and the government have to challenge each other and the law within the US. This kind of rule of law doesn’t exist in China as we know it.

While China’s population of trained lawyers and judges continues to grow, the pace of change within the law varies significantly.

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.