The Construction of a Rule of Law China and the Improvement of the Theoretical System of Human Rights in China
March 07,2017 By:CSHRS
The Construction of a Rule of Law China and the Improvement of the Theoretical System of Human Rights in China
-- From the Perspective of “Integrating the Leadership of the Party, the Position of People as Masters of the Country, and the Rule of Law”
Abstract: The CPC Central Committee has put forward the thesis of integrating the leadership of the Party, the position of people as masters of the country, and the rule of law. This thesis is an important development of the Marxist legal ideology and the socialist theory of the rule of law with Chinese characteristics. It is also a main line of the construction of a socialist rule of law country with Chinese characteristics and should be the general and basic principle of the construction of the theoretical system of human rights with Chinese characteristics. Therefore, the CPC should also endeavor to guarantee the realization of human rights, under the leadership of whom we advance the rule of law of “ensuring that the people are masters of the country” and “respecting and protecting human rights” in order to implement the modernization of the state governance system and capacity in which democracy, rule of law and human rights are the core elements of the country.
Key words: Human rights theory, leadership of the party, people as masters of the country, rule of law in China, state governance
In China, “integrating the leadership of the Party, the position of people as masters of the country, and the rule of law” is usually referred to as the “organic unity of three elements”. The expression of “organic unity of three elements” first appeared in the report of the 16th CPC National Congress; that is, “The key to developing socialist democracy is to combine the need to uphold the Party’s leadership and to ensure the people are the masters of the country with the need to rule the country by law.” In the report of the 17th CPC National Congress, it changes to “integrate the leadership of the Party, the position of people as masters of the country, and the rule of law.” Thereafter, the expression of “integrate the leadership of the Party, the position of people as masters of the country, and the rule of law” is accepted officially in the report of the 18th CPC National Congress; whilst the “Decision of the CPC Central Committee on Major issues Pertaining to Comprehensively Promoting the Rule of Law” was adopted on the fourth plenary session of the 18th CPC Central Committee, and in a series of important speeches of General Secretary Xi Jinping. In the relationships between “rule by law” and “leadership of the Party”, “people as masters of the country” are different in the aforementioned two expressions. Before the 16th CPC National Congress, the socialist democratic politics and political civilization includes just the leadership of the Party and people’s democracy. With the Party’s understanding of the “rule of law” theory sublimation and the accumulation of experience in governance, “rule of law” has become a basic strategy of governing the country. That is, “rule of law” has shifted from an instrumental, transitional and alternative option which attaches to “leadership of the Party” and “people as the masters of the country” to a “must” of state governance. In the development of socialist democracy in China, the key is to integrate the leadership of the Party, the position of the people as masters of the country, and the rule of law. The “organic unity of three elements” thesis is a significant development of the Marxist legal ideology and the socialist theory of rule of law with Chinese characteristics.1
The relationship among democracy, the rule of law and human rights is like the polygon prism. “The rule of law” is the manifestation of “democracy” while “human rights” are the connotations of “democracy”. The true meaning of “the rule of law” lies in “human rights”. “The rule of law” always shares weal and woe with “human rights”.2 On September 16, 2015, General Secretary of CPC Xi Jinping says in a congratulation letter to the Beijing Forum on Human Rights that “The CPC and Chinese government have always honored and protected human rights. China has applied universal principles of human rights while taking consideration of its own circumstances. China has been promoting economic and social development, improving people’s well-being and social fairness and justice, toughening protection of human rights in order to achieve the comprehensive and coordinated development of economic, social and cultural rights and civil and political rights. As a result, the protection over people’s rights to strive and develop has been remarkably heightened and China has worked out a developing path of human rights catered to our own national situation.”3 With the further development of the rule of law, the construction of the rule of law and human rights ushered in a new development opportunity. Especially in the context of building a rule of law in China, the scientific and comprehensive demonstration of the dialectical relationship among “leadership of the Party”, “people as the masters of the country”, “rule of law” and “socialist theoretical system of human rights with Chinese characteristics” is not only beneficial to the promotion of the practical process of the rule of law, but also to the improvements of our international discourse rights on human rights issues.
Ⅰ.Leadership of the Party and Obligation Subjects to Socialist Human Rights Protection with Chinese Characteristics
The obligation subject to human rights protection is the core element and direct influence factor of the realization of human rights. Generally speaking, subjects of human rights protection include states, international organizations, non-governmental organizations, and individuals.4 The first and primary subject to human rights protection is the state; however, in China, the CPC plays an important role. In general, the political party, as a kind of group organization, should not be the obligation subject to human rights protection. Nevertheless, in the socialist system under the rule of law with Chinese characteristics, the leadership of the Party is the political prerequisite and fundamental guarantee for socialist human rights with Chinese characteristics. Therefore, the CPC is certainly the subject to human rights protection. What’s more, “respecting and protecting human rights is an important principle of the governance of the CPC and Chinese government”.5
A. The position of the CPC as the subject to human rights protection is the inevitable requirement of its ruling legitimacy.
The CPC used to be a revolutionary political party. After the revolution, it became the leading and ruling party. The ruling party is a legal category, whose power comes from the Constitution.6 The relationship between the Party and rule of law is the core issue of building a rule of law China. The fourth Plenary Session of the 18th CPC Central Committee points out that “the leadership of the Party is the most essential characteristic of China’s socialism and it is the fundamental guarantee of socialist rule of law.” The legitimacy of the ruling party does not mean that it complies with the legal norms and principles; instead, it refers to the necessary basis for effective political governance in which people have a kind of voluntary recognition, obedience and support to the ruling party. The connotation of the legitimacy of the ruling party includes whether and how the government operates in the way most people in the society approve. It also includes the scope, basis and source of the effectiveness of political governance.7 The new China’s “the Party builds the country” model is quite different from some western countries’ “the Party comes after the establishment of country” model. This difference means that in China, the Party dominates the transformation from “state establishing” to “state governing”. Legitimacy resources the Party acquires during the process of the transformation above constitute the basis of legitimacy of the Party-dominance establishing and operating of constitutional system.8 Preserving and consolidating the legitimacy and authority of the state is a basic task for state governance which roots in the will of the people. Therefore, the condition of human rights protection is one of the essential indicators of the will of the people when analyzing “the will of people” from the perspective of human rights.9 The modern state admits its natural basis (the people in the civil society and civil society itself) rather than create the basis through universal human rights. Since the modern state is the product of civil society, which has to get away from the old political shackles for its own development, it admits the birth and basis of its own by proclaiming human rights.10 The enjoyment of full human rights is a long-cherished ideal of mankind, and it should be the goal for the socialist system. Realizing the emancipation, comprehensive and free development of mankind completely, and meeting the needs for material, spiritual and institutional civilization of mankind is the core content of socialist practice and the ultimate goal for socialism. The socialist system should be a system in which human rights can be fully realized. We should put human rights on the banner to construct the socialist democracy and the rule of law China.11 In the New Year Speech of 2016, General Secretary Xi Jinping expressed his wish to make the people in this country feel a heightened sense of gains. He emphasized that “The CPC and Chinese government will continue the efforts to ensure that the safety of people’s lives and properties are protected, and people’s rights to improve livelihood and health are guaranteed.”12 A political party, especially a Marxist political party, can only improve the legitimacy and authority of the state by taking the free development of every individual into consideration and setting the achievement of human rights as an unswerving goal.
B. The position of CPC as the subject to human rights protection is the essential embodiment of its fundamental tenet.
Since the birth of the CPC, it has been struggling for the political, economic, cultural, legal rights of the people. Chairman Mao made a profound analysis on the rights condition of the old China, pointing out in “Struggles in the Chingkang Mountains” that “people of the country do not have the universal civil rights; workers, peasants and bourgeoisie of civil right groups do not have the right of free speech and the freedom of speech and assembly; joining the Communist Party is the greatest crime.”13 During the period of the Anti-Japanese War and the War of Liberation, the CPC has successively formulated constitutional documents such as “Administrative Program of Shaanxi-Gansu-Ningxia Border Region” and “Constitutional Principles of Shaanxi-Gansu-Ningxia Border Region,” which make clear regulations of basic human rights. Some of the revolutionary bases have developed specialized legal documents to protect human rights.14 After the establishment of the PRC, especially after the Third Plenary Session of the 11th Central Committee of the CPC, the Party profoundly drew lessons and attached great importance to human rights. In June 1985, Deng Xiaoping questioned: “what are human rights? Above all, how many people are they meant for? Do those rights belong to the minority, to the majority or to all people in a country? Our concept of human rights is, in essence, different from that of the Western world, because we see the question from a different point of view.”15 The CPC has always taken protecting the fundamental interests of the overwhelming majority of the people as the standing point and ultimate goal of human rights issues. “Human rights” first appears in the report of the 15th CPC National Congress in September 1997. On March 14, 2004, the Second Session of the 10th National People’s Congress has ratified an amendment to the Constitution that “The state respects and protects human rights”. In October 2007, the report of the 17th National Congress of CPC for the first time took the development of human rights as an important aspect of the development of the state. The report of the 18th National Congress of CPC further promoted the position of human rights, writing that “respecting and protecting human rights is one of the important strategic goals of comprehensively building the moderately prosperous society and deepening the Reform”. The Third Plenary Session of the 18th CPC Central Committee pus forward the concept of “build a rule of law China” and regarded it as the goal of promoting the rule of law. In October 2014, the Fourth Plenary Session of the 18th CPC Central Committee adopted the “Decision of the CPC Central Committee on Major issues Pertaining to Comprehensively Promoting the Rule of Law”, which clearly put forward that we should strengthen the judicial protection of human rights, define the relationship between the rule of law and human rights, and stress that we should reinforce the protection of human rights, people’s interests and rights in order to comprehensively promote the rule of law. Therefore, the fourth Plenary Session of the 18th CPC Central Committee report is not only the declaration of the rule of law, but also the declaration of human rights. It is a remarkable symbol of the fusion of rule of law and human rights.16 In essence, the idea of socialist human rights with Chinese characteristics is highly consistent with the CPC’s tenet of “serving the people wholeheartedly”; the fundamental goal of “”realizing the common prosperity,” and the aim of “struggling for the Chinese dream”.
C. Main ways for CPC to protect human rights
The practice shows that the development and innovation of human rights theories and practices in China is basically determined by CPC’s consciousness of human rights. The development of human rights theories and practices in China has proved, and will continue to prove, that the CPC is a strong leading core in the development of human rights theories and practices in China.17 At this stage, the main ways for the CPC to protect human rights are as followed:
First, the CPC should lead the people in lawmaking. We should handle the relationship between the Party’s policies and state laws correctly, so that the Party’s leading in lawmaking is under the rule of law. “We should handle the relationship between the Party’s policies and the state laws, and they have an inner consistency for both of them reflect the will of people”, said General Secretary Xi Jinping.18 Although the Party’s policies and state laws have an inner consistency, we should not blur their differences in rule-making subjects, rule-making procedures, forms of expressions, adjustment ranges, constraint mechanisms and the degrees of stability. Only the policies that are formulated through the inner-Party democratic procedures by the ruling Party can direct the making of laws and be transformed into laws. They should be Party laws which are long-term, directive and stable rather than any documents issued by any Party organization or the opinions of an individual.
Second, the CPC should guarantee enforcement of the law. In recent years, the frequent occurrence of infringement of human rights and civil rights, including personal freedom, personal dignity, communication privacy, life and property rights, has reflected that in China, human rights and civil rights are not sacred enough, and some officials do not take human rights and civil rights seriously. In the governance of the state, we must understand that only when the government treats human rights and civil rights seriously will the people be serious about the government, law and order. This is the way of forming a society of “government-citizen harmonious”.19 At the same time, we should be alert to the “soft illegality” and “negative illegality” phenomenon which is represented by the “administrative omission”. This requires that at the same time of putting the power into the cage and promoting the rule of law government, we should also tie the power on a claim. The fulcrum of this claim is constitutional law, the length of the claim needs to be contracted or relaxed in the dynamic balance between the rule of law and the market economy. Government’s random actions and inaction are not allowed, and the government should take good actions and act under the rule of law.
Third, the CPC should support the justice. The capacity to maintain stability and to solve disputes of the traditional political and legal governance mode is declining in the modern market economy. What’s more, the judicial authority is suffering from the threat of “Tacitus Trap” and the internal tension of modern institutional rationality. Among all the intricate factors that lead to the predicaments and crises of rule of law, the most fundamental one lies in the historical inertia of state governance and the existing system lagging behind the social development. Due to the weak capacity for social governance, we face the problem that on the one hand, the state power is everywhere, one the other hand, the society is nearly out of control, being twisted and fractured.20 “The CPC’s leadership of political and legal affairs includes mainly the political leadership, ideological leadership and organizational leadership.” On April 11, 2006, Secretary of the political and judiciary commission, Luo Gan, generalized the CPC’s leadership of political and legal affairs to seven aspects, in the opening ceremony of the ‘Socialism Theories of Rule of Law Seminar’. These are: leading and promoting the political-legal organs to implement the major policies; making thorough deployment of the political and legal affairs and discovering and solving the conspicuous problems; strengthening the overall coordination of protecting national security and maintaining social stability; Guiding the political-legal organs to crack down on crimes by law and regulating various of social relationships by law; strengthening the supervision of law enforcement activities; promoting judicial reforms; enhancing the construction of political and legal teams and leading groups and improving law enforcement environment and conditions.21 According to the seven aspects above, the CPC’s leadership of political and legal affairs should be more macroscopic and global, which means “being adept in global planning and major issues; ensuring the implementation of CPC’s guidelines and policies; Guaranteeing the uniform and correct implementation of the Constitution and the law”.22 In November 2013, the CPC Central Committee issued the “Five-year Planning Outline of the inner-Party lawmaking Work (2013-2017)” and clearly put forward “improving the CPC’s leadership of the political and legal affairs, proactively propelling the judicial system reform, timely formulating regulations of CPC and Political and Law Committee, improving the lead-by-Party political and law mechanism.” It is necessary to study and formulate the regulations of CPC and Political and Law Committee, and to define their leadership on politics, ideologies and organizations, in order to regulate the operation of the power. The CPC should support the political-legal organs to work independently and responsibly. It should not interfere with the normal judicial activities of the judiciary or identify cases taking the place of the judiciary or assign the missions beyond their statutory duties.
Fourth, the CPC should take the lead in observing the law. General Secretary Xin Jinping stresses: “To uphold the leadership of CPC calls for improving its leadership and governance. The first and foremost principle of the rule of law is the rule of the Constitution; the key to governing under the rule of law is governing under the rule of the Constitution. The CPC leads the people in developing the Constitution and the law, itself must be within the bounds of the Constitution and the law.”23 The ruling Party leads the state within the state institutions rather than above, beyond or bypass the state institutions.24 In this sense, all Party members should form a consensus: to strictly abide by the Constitution and the law, is to uphold and strengthen the leadership of the Party. In addition, Party organizations at all levels, leaders at all levels, and all Party members strictly observing the Constitution and the law play an important role of maintaining the authority and dignity of the Constitution and the law. In 2014, the National People’s Congress designated December, 4th China’s Constitution Day. In 2015, we established a system of pledging allegiance. Driven and Guided by the Party, national awareness of rule of law will be promoted.
II. Position of People as Masters of the Country and Respecting and Protecting Human Rights
On November 15, 2012, the 18th Standing Committee of the political bureau held a meeting with Chinese and foreign press. General Secretary Xi Jinping noted: “It is the people who have created history. They are the real heroes; our strength lies in the people.” “We must always be one heart mind with the people, share weal and woe with them, make concerted and hard efforts, attend to our duties day and night with diligence, and strive to deliver a satisfactory performance in the eyes of the history and the people.”25 The essence and fundamental feature of democracy is that the people are the masters of the country. Marx refers to democracy as “People’s State”.26 And it is noted that: “People create the state system rather than being created by the state system.”27 After the reform and opening up, Deng Xiaoping made it clear that: “Without democracy, there is no socialism, let alone the socialist modernization.”28 He also stressed: “In order to protect people’s democracy, we must strengthen the legal system, we must institutionalize and legalize the democracy so that the system and the law will not change because of the changes of the leadership and the views and attention of the leaders.29 The key to promoting people’s democracy and improving the political system in the new era is to scientifically grasp the dialectical relationship between democratic rule of law and the rule-of-law democracy so as to shift from “people being master of the country” to “respecting and protecting human rights”.
A. Purpose of the people as masters of the country is to respect and protect human rights
People’s sovereignty principally answers where the legitimacy of the supreme power of the state comes from, that is, people are the subjects of the state power. Basic human rights principles emphasize the objective justification of state power; that is, that state power serves human rights.30
Democracy is important indeed, but it is not an end in itself. The aim of democracy is to realize the happiness of the people. On the one hand, the aim of democracy is to realize human rights of every individual; on the other hand, human rights, especially civil rights provided by law, help to protect and promote democracy and to constrict the inappropriate use of democracy.31 The concept of modern democracy generally consists of one core and four elements. The one core refers to the “people’s sovereign principle”. The four elements are as follows. The first element refers to the citizens’ democratic rights including the right to vote, the right to participate in and to discuss political affairs, the right of supervision and the right to be informed and so on. The second refers to the democratic configuration of state power, including the relationship between the ruling party and the opposition party, cooperative party, the relationship between the ruling party and the state institutions, the relationship within the legislature, the executive and the judiciary and the relationship between individual leadership and collective leadership within the state organs. The third refers to the democratic procedures, including that of political decision-making, legislation, law enforcement and judiciary. The fourth refers to the democratic methods, including the democratic centralism, mass line, criticism and self-criticism, letting all have a say etc.32 Therefore, with the increasing degree of democratization of the legal system, China is changing from “rule by law” to “rule of law” and gradually from the distorted “great democracy” in the period of Cultural Revolution to the Party on behalf of the people’s will, and finally to “the rule of law of people being masters of the country” and “the rule of law of respecting and protecting human rights”.
B. An important manifestation of people as masters of the country is to protect people’s rights and interests
From the perspective of the historical evolution and connotative development of the concept and phenomenon of human rights, the essence of human rights can be summed up in two elements: interests and justice. The complex human right phenomenon presents the pluralism and complexity of human interests; human rights disputes reflect the disputes of human interests; issues on human rights are ultimately the issues on interests. Justice not only affects the ideas of humanism, equality and liberty, but also supports the concept of human right and provides important ethical basis for dealing with human rights issues. Only when the subjects, contents, enjoyment and realization of human rights live up to the principle of justice, can they gain popular acceptance and support.33 It should be noted that the connotation and extension of “human” in the concept of “human rights”, first of all, is the natural person (including some social groups), which should not be simply understood as an abstract whole. In the past, the abstract concepts such as “people”, “state”, “nation”, “community” or “collective” were accepted without hesitation and are considered to represent the paramount interest that completely overwhelms any right and interest of the private individual.34 Once the “individual” is equivalent to the “people”, or even if we distribute rights and interests according to the classes of people, the meaning and value of human rights will no longer exist. Next, human rights should be distinguished from civil rights or the basic rights of citizens which helps us to understand that the protection of human rights is beyond borders and ideology. In December 2015, the CPC Central Committee and the State Council issued “Implementation Outline for the Construction of a Rule of Law Government (2015-2020)”, which clearly stipulates the criteria for the rule of law government: the government functions fully according to law; the law-based administration of government is complete; the administrative decision-making is scientific, democratic and legitimate; the implementation of Constitution and law is strict and impartial; the administrative power operates well and transparently; people’s rights and interests are protected effectively; and administrative capacity of rule of law is promoted.35 It is foreseeable that in the construction of rule of law in the country and rule of law in the government, the protection of people’s rights and interests will be increasingly shifted from the top level design to the administrative and judicial practice.
C. The core requirement of people as masters of the country is to construct human rights protection mechanism
As a kind of political system, people being masters of the country is a form of democracy, even an advanced form of democracy. Integrating the construction of democracy with rule of law is the basic experience gained from the exploration of democratic politics of China. From the perspective of rule of law, advancing rule of law and democracy simultaneously is a basic characteristic and the only way to a rule of law China. They are two core elements of constructing socialist human rights theories and practices with Chinese characteristics. At present, it is particularly necessary to improve and perfect the human rights realization mechanism.
First, we should realize human rights through the socialist constitutional system with Chinese characteristics. In contemporary China, the leadership of the ruling party is the fourth power on the basic of the legislative, executive and judicial powers. Among the four powers is neither parallel relations nor hyponymy relations. The ruling power is over the other three powers and the executive and judicial powers are subject to the legislative power within the state system. The construction of the socialist constitutional politics with Chinese characteristics should take the ruling party, the state power, the enforcement of the Constitution and the theoretical explanation into consideration. The author believes that the ruling party should carry out the “unification of three”, put forward at the 4th Plenary Session of the 18th CPC Central Committee, which is to unify the basic strategy of governing by law and ruling by law, to unify the Party’s leading and coordination work with the performance of the NPC, government, CPPCC, judicial organs and pro-curatorial organs; and to unify the Party leading the people to develop and implement the Constitution and law with the Party being within the bounds of the Constitution and the law. What’s more, the ruling party should also “be good at four things”. That is, being good at making the party’s proposals be the will of the state through legal procedures; being good at making the party’s recommended candidates be leaders of the state organs; being good at ruling the state and society through the state power organs; and being good at maintaining the central authority, the party unify and national unify through the democratic centralism principle. At the state level, it is necessary to adhere to and improve the fundamental political system--the system of National People’s Congress. At the enforcement of the Constitution level, we should pay close attention to the construction of judicial review system in order to establish a set of “legal rules” for the ruling party, the state power organs, social organizations and all citizens. At the theoretical explanation level, we should elaborate the connotation and extension of constitution theory with Chinese characteristic in accordance with “four elements” including “people’s democracy, the rule of law, human rights protection and constitutional supremacy” so as to enhance and spread Chinese theory of rule of law.
Second, we should realize human rights through the improvement of the system of National People’s Congress. The system of National People’s Congress is the political organization form of people as masters of the country and reflects that the people’s interest is supreme. Currently, some of the functions of the National People’s Congress are performed by different levels of Party committees. Some Party organizations regard the NPC as a tool for implementing the Party’s intentions and established decisions consciously or unconsciously instead of the highest organ of state power. Some major issues that ought to be determined by the NPC and its standing committees actually are determined by the standing committees of the Party. In fact, some standing committees of the Party require that the NPC be highly consistence with them.36 We should be good at integrating the Party’s leadership into to system of NPC and realizing the party’s leadership of the state through the performance of the NPC’s legislative power, decisive power, the right to recall, the right to supervise and other important rights. In addition, it is necessary to attach importance to the construction of the NPC itself, including raising the degree of freedom of the election; improving the political and professional qualities of deputies; realizing the professionalism of the NPC’s standing committees of all levels; and further improving the transparency of the NPC’s work and independence of the democratic parties so that they could play more important roles in the work of the NPC.
Third, we should realize human rights through the Constitution supervision organs and procedures. Currently, the supervision mechanism and specific systems of the implementation of the Constitution are not sound, and in some places and departments, the phenomena of non-observance and lax implementation of laws, and the allowance of law-breakers not being punished still exists. The law enforcement and judicial problems relating to the real interests of the people are outstanding. Some public officials who abuse their powers, fail to do their duties, break laws while in charge of their enforcement, even bend laws for selfish ends seriously damage the national legal authority. Constitutional consciousness of citizens including some of the leading cadres still remains to improve.37 At present, the lack of authority of the law, above all that of the Constitution, results from the lack of the specialized Constitutional supervision organs and procedures. As General Secretary Xi Jinping points out: “The comprehensive implementation of the Constitution is the primary and basic task of building a socialist rule of law China.”38 In “the 13th Five-Year-Plan” period, it is necessary to set up a supervisory committee for the implementation of the Constitution in the NPC and improve the mechanism of Constitutional interpretation procedures.39 The supervisory committee for the implementation of the Constitution shall be led by the NPC and by the standing committee of the NPC when the NPC is not in session. The members of it shall include the legal experts and it may employ a number of legal experts to serve as consultants.
III. Rule of Law Is the Systematic Guarantee and the Logical Starting Pointing of the Human Rights Realization
The ideal of the rule of law refers to the state in which the public powers realized through the law are in harmony with civil rights, in which civil rights are respected, protected and rescued by state powers. Human rights are the origins, limits and purposes of public powers. If the law can make such state come true, the rule of law will exist. There is no rule of law in the places where the public powers are not limited and the human rights are not protected.40 Under the condition of modern rule of law, the law is the application of a set of values and norms, with justice as the core, to distribute the interests of the society and to regulate the conflicts and contradictions of different interests by procedural ways, so as to meet the best interests of most people and to ensure the long-term stability of the country and the nation.
A. Ruling of law is an inevitable option to realize human rights
As the basic strategy of governing the country, the rule of law is superior to the rule by man, which is the social consensus drawn from the painful historical lessons. In the early days of the People’s Republic of China, the CPC adopted the successful experience of legal system construction in the base areas of the New Democratic Revolution period, and formulated a large number of laws, regulations and other legal documents, which laid the foundation for the socialist legal system. According to the statistics, from September 1949 to August 1954, the CPPCC and the central government formulated and approved a total of 26 laws and regulations and the Government Administration Council developed a total of more than 300 pieces of legal documents.41 However, due to the “leftism” error of CPC, on August 24, 1958, Chairman Mao delivered a speech in Beidaihe: “We cannot rule the majority by law......we mainly rely on the resolutions and meetings. We hold the meetings four times a year. We cannot rely on the civil law and the criminal law to maintain the order. All of our resolutions and meetings are laws.” He also said: “What we need is to rule by man, not the rule of law. Every editorial of People’s Daily is enforced in the country, so why must we have laws?”42 Then the legal construction in China got off on the wrong path. We placed the “people as masters of the country” on the opposition of the legal construction and rule of law and regarded the “class struggle” as the fundamental method of dealing with various social conflicts, so the legal nihilism prevailed. What’s worse, it turned into “smashing the public security organs, pro-curatorial organs and people’s court”, and the mass movements were “lawless”. Since the Third Plenary Session of the 11th CPC Central Committee, the CPC has summarized our experience and lessons of the construction of a socialist rule of law China and has finally set the strategy of rule of law as “the fundamental policy of governance”. Its meaning contains two aspects: first, being a political ideology, the rule of law to that the development and stability of the country should not rely on wise leaders. It should rely on well-established and authoritative laws and systems. Second, being a fundamental rule of conduct of governance, the rule of law refers that the state should not be governed according to the views, wisdom and attention of the leaders, but should be governed according to the law which complies with the laws of the world, spirits of the times, interests of the people and idealities of the society. The public powers should not be above the law and the will of the leaders should not decide everything.43 In modern society, the rule of law is one of the political and legal systems of the society. It is one of the most progressive and civilized systems in the modern world. It marks the modernization of the national governance system and capacity. It is also an inevitable option to realize human rights.
Modern democracy is a kind of politic based on the sovereignty and will of the people aiming at the realization of human rights and freedom through developed procedure settings. Democracy and the rule of law have a natural connection for only when the public opinions rise to national laws which have the supreme authorities can they achieve their dominance in national and social life. And only when the civil rights are identified, defined and protected by laws can they be transformed from the ought-to-be form into the practical form. What’s more, only in the form of legal procedures, democratic processes will not be overstepped or abolished on account of their limitations to some people. That’s why the democratic politic can only be a kind of rule of law politic.44 If the democracy is not standardized and concretized by the Constitution and laws, which have the supreme authorities, the democracy may be alienated and the public servants may reduce to masters of the state.45 At present, to advance the construction of the democratic politic with Chinese characteristics, we should prevent the mass movements of “anarchism” and “populism”, and avoid the ignorance of the people’s demands for democracy on the excuse of the “color revolution”.
B. Human rights protection is the fundamental purpose of the law
The fundamental purpose of the law is to protect human rights. First of all, there are always various kinds of social conflicts to solve and various kinds of social relations to adjust. That’s why the human society calls for the law as the rule of human conducts according to the grounds of the law. To sum up, they are all concerned with human rights protection. Secondly, according to the essence of the law, the law regulates people’s behaviors and adjusts various kinds of social relations through the rights and obligations it contains. Legal rights are actually human right; they are the legalization of the rights which people should enjoy. Thirdly, according to the functions of the law, the law has an ethical value which means that it is an important manifestation of social justice and an important symbol of human civilization.46 “Basing on the people, regarding the people as the subjects of all concepts, behaviors and systems, respecting people’s values and dignity, realizing people’s liberation and comprehensive development, protecting the equality, freedom and human rights of all people and improving the material and spiritual life of all people are becoming or have become the ultimate concerns of modern law, the main symbol of modern legal civilization, the important feature of the formulation and implementation of modern law and the great impetus to reform the legal system.” “The humanism spirit is at the highest level of legal spirits.”47 After more than 30 years of the reform and opening up, China has entered the “deep water”. Due to the complicated conflicts appearing in the transformation process of the multiple society, reform must adjust and reallocate its interests. Under the circumstances, if reform does not operate in a unified legal framework; if all parties of different interests do not game in the legal pipelines; or if they are not involved in policy-making and view-expressing through legal tools and platforms, it is difficult for reform to obtain justification, constitutionality and legitimacy, so as to resolve conflicts of different interests and to make decision-making be scientific and democratic.48 The rule of law is the guarantee of realizing human rights, and it is an important means to respecting and protecting human rights. In the meantime, the realization of human rights runs throughout the whole process of the construction of the rule of law and is the grounding and the ultimate goal of it. The purpose of the rule of law is to construct a government in which the only valid political goal is the realization of human rights and the only source of the power is people’s will so that we can create a human-rights-oriented rule of law society.49
C. Democracy, the rule of law and human rights are core elements of the modernization of state governance system and capacity
Adopted at the Third Plenary Session of the 18th Central Committee of the CPC, the Decision on the Central Committee of the CPC on Some Major Issues Concerning Comprehensively Deepening the Reform, writes “The overall goal of deepening the reform comprehensively is to improve and develop socialism with Chinese characteristics, and to promote the modernization of the state governance system and capacity.” The State Governance System (SGS) is a structural function system which aims at its target systems, is supported by its institutional system, and is based on its value system. The target system of SGS consists of three targets including the sustainable development, the improvement of people’s livelihood and human rights and the sustainable stability.50 Effective state governance involves three basic questions. They are: Who should govern the state? How to govern the state? And how well does it govern? These three questions are three main elements of the SGS: the governance subject, the governance mechanism and the governance effect. Only by ruling the state according to the law and constructing the socialist rule of law system with Chinese characteristics, can we give full play to the socialism system with Chinese characteristics and promote the modernization of the state governance system and capacity.
In the Chinese system, there is a strong party leadership and mobilization system, an efficient government implementation system and a highly centralized central coordination system. Therefore, it helps to gather the strength of the country, exert the whole effects of the nation, promote the government to operate positively and realize the collective will.51 However, through the governance model of strong organizational and mobilization capacities, it is easy for us to “pool resources to solve the major problems” as well as “pool resources to do wrong”. Democratic rule of law is an important criterion to measure the degrees of the modernization of the state governance capacity. With a lack of democracy, the rule of law may step towards centralization and autocracy. With a lack of the rule of law, democracy may be reduced to chaos and disorder. Therefore, to promote the modernization of state governance system and capacity, it is necessary to establish the governance philosophy of civil rights standards and government obligations standards, which take root in the protection of people’s interests in order to change from “rule for the people” to “letting the people rule”, and finally, to “people as the masters of themselves”.52 The 18th National Congress of the CPC report puts forward the establishment of the social governance pattern of the leadership of the Party, the charge of the government, the collaboration of the society, the participation of the citizens and the safeguard of the law. The Third Plenary Session of the 18th Central Committee of the CPC writes: “We should work harder to accelerate socialist democracy in a systematic way by adopting due standards and procedures. We should build a socialist country with the rule of law, and develop people’s democracy with wider, more adequate and sound participation.” which is regarded as the important task of the modernization of social and state governance. Adopted at the Fifth Plenary of the 18th Central Committee of the CPC, the “Recommendations for the 13th Five-Year-Plan for Economic and Social Development” outlines the general plan for strengthening and making innovations in social governance aiming at the existing problems in the field of social governance. During the 13th Five-Year-Plan period, we should focus on creating a community in which everyone is responsible for it and does their duty. We should build the social governance pattern established and enjoyed by all people. We should comprehensively promote the modernization and rule of law level of state governance.
The theoretical exploration of China’s governance theory is centered on the basic categories of science, democracy, human rights and the rule of law. The rule of law leads to the realization of human rights; the realization of human rights leads to democracy; democracy leads to science. This seems to be the only way to go from the realm of necessity to the realm of freedom. Since modern times, under the dual historical demands of national liberation and national prosperity, the construction of the rule of law has gone through arduous exploration and practice. Under the strong leadership of the CPC, we will finally find our own way to the rule of law. That is, to integrate the leadership of the Party, and the position of people as masters of the country, and the rule of law; to take the road of the socialist rule of law with Chinese characteristics unswervingly; to construct the socialist system of rule of law with Chinese characteristics, and to build a socialist country under the rule of law. With the deepening of reform and opening up, China has made great process in the human rights cause. The theoretical researches on human rights grow and mature gradually and the construction of the socialist theoretical system of human rights with Chinese characteristics becomes possible.53 Some scholars hold the view that “The general principle of the construction of the socialist theoretical system of human rights is to integrate the leadership of the Party, the position of people as masters of the country, and the rule of law. The fundamental purpose of building a socialist country under the rule of law with Chinese characteristics, is to ensure the realization of civil rights and basic human rights, which requires that we develop human rights under the rule of law and combine human rights with the state system.”54 Therefore, the socialist theoretical system of human rights with Chinese characteristics and the socialist system of rule of law with Chinese characteristics, are parts of the socialist theoretical system with Chinese characteristics. Moreover, the common principle and standard of the two above shall be the “organic unity of three elements”.
* Duan Ruiqun（段瑞群）, Ph.D student, School of Law, Renmin University of China. This essay is a stage achievement of the Project “Research on Several innovative Theory and Practice of the Construction of a Rule of Law China” (project number: 14AZD136) supported by National Social Science Funds. I would like to express my sincere thanks to Professor Li Buyun, honorary member of Chinese Academy of Social Science, for his concentrated guidance.
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25. Ibid., at 5.
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27. Ibid., at 386.
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29. Ibid., at 144.
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37. Ibid., at 137.
38. Ibid., at 136-137.
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40. Supra note 2.
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45. Supra note 14, at 615.
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