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OPCh 12 de Maio de 2014 Ríos

Xi Jinping’s Rule with Law

Traditionally, when evaluating the axis of change initiated more than three decades ago in China with Deng Xiaoping we tend to focus more on the reform than on the opening to the outside. However, for a civilization that has lived wrapped up in itself for centuries, is new exposure to the outside world is the most significant factor. In fact, China has never been as interdependent as it is now, which implies a sweeping transformation.

In the same manner, when China performs a wave of new reforms nowadays, a great majority of the focus is on the significance of the economic changes, which are certainly important, since they must support a new development model and strengthen and complete the pending links with the outside in areas of such importance as the financial.  Nevertheless, in parallel, a historically significant change in the political culture is being encouraged. In effect, if Hu Jintao’s term of office sought, with its “harmony”, an adapted revitalization of the Confucian discourse, the key surfacing from Xi Jinping and his Shaanxi clan’s policies resides on their impulse to Legalism, precisely the philosophical school opposed to Confucianism and which, in the 5th to 3rd centuries BCE defended a system based on the laws as opposed to one based on rites.

Presented with a rhetoric focused on improving the State’s governance by implementing the law, Xi Jinping’s neolegalism’s main goal is strengthening the power of the CPC (the power of the monarch in the legalist school), taking the norm as the essential ground for institutional functioning at all levels, as well as the basic authority source to prevent other ideas from challenging their first organic dynasty in history.

The current political reform is not meant to affect the pillars of the existing systemic structure, but to associate them with institutions based on a normative set of laws serving as reference for a more transparent and modern governance. This can be seen in the determination of the current leaders to give the new policies a normative base, delaying their enforcement until the appropriate laws and regulations are put in place. It is not a matter of giving a more decisive role to the market only, but also to the law. The common practice in China, in agreement with the old axiom stating that “men rule, not laws”, has always been based on developing reforms subject to political decisions that did not have a normative support from the state, and that were sometimes adopted by non-institutionalized bodies. Codification should give rigour to such processes, reduce opacity and contribute to improving control over the CPC. In short, in a China ruled by a law that enthrones the role of the Party, advisors should interiorize the need for legislation, acting not only in agreement with the principles of revolutionary legitimacy or growth, but on the principles of legality.

An essential element in the aforementioned process is the reform of the justice system, today more loyal to the Party than to the norm. Its behaviour suffers from significant defects, the greatest one being its credibility crisis. Limiting judicial errors and corruption is part of an agenda proposing a readjustment of the CPC’s intervention in that establishment with the intention of increasing the sphere of impartiality. Political intervention will be reduced, but not completely removed, especially in those cases considered more politically sensitive. Strengthening the independence and professionalism of the magistrates, forced until now to coordinate their position with the CPC, the police or the prosecutors, is the most significant challenge.

The third element to consider is the perception of people’s rights. The abolition of the laojiao system –which allowed for up to a four year sentence without trial for small-time criminals (and petitioners)– or the exclusion of evidences and testimonies obtained by torture as a means to prevent judicial errors, establishing that a sentence cannot be pronounced without clear evidence, set the path for a different approach towards the citizens for whom the law must be a guidance for conduct but also an inalienable ground for their rights.

These are positive steps, but let’s not deceive ourselves. Xi Jinping will in this way strengthen the judicial grounds for decision, the normative transparency and the value in the process of the government’s actions, but he will not allow the dissidence to stand in his way while also being as hard on them as his predecessors. How much this process will affect a CPC well established in using the norm for their sole benefit remains to be seen. The regulations that Xi refers to as a foundation to subordinate the Party and the State to the judicial order aspires to establish the grounds for a new political idea of stability, but this rule with law, observant of the legality principle, will be closer, at least in the short term, to the utilitarianism of legalism than to the limitation of power instituted in a rule of law, whose most important mission is to protect the fundamental freedoms of its citizens.


Xulio Ríos is the Director of the Observatory of Chinese Politics

Traducción de Laura Linares Fernández.

Tempo exterior: Revista de análise e estudos internacionais