So I’ve lately been criticising stridently the concept of “rule of law” as basically a violation of the Second Commandment, man should not obey inanimate objects or the constructs of other men, even if clerics (read: judges) act as ventriloquists for their idols. It’s time now to sketch out a framework for an alternative. In this I think it would be useful to look at China as an alternative to the “rule of law”. I will be drawing a copious amount of quotes from a legal article Is China a “Rule-by-Law” Regime by Kwai Hang Ng in his characterisation of the Chinese legal regime. His article is primarily about analysing Western notions of “rule by law” as a negative thing compared to “rule of law”, arguing that it fails to capture the Chinese legal practice, and then recommending “Law as Policy Statements” as a more accurate reading of the Chinese approach to law.
However to illustrate this different approach I’ll use two Singaporean incidents to highlight some of its main features.
George Yeo, our former foreign minister, was once asked why are books which are offensive to Islam banned in Singapore but books which offends Christians are permitted. George Yeo gave a brutally frank, but realist, answer: “Christians are less likely to riot.” A lot of Westerners have trouble understanding this sort of logic, that it is unfair, selective, and “unprincipled”, etc.
But this is to misunderstand the reasoning behind the policy. The government does not care to defend the uniform principle of “free speech” or the liberal principle of “not offending anybody”. The government wants to achieve certain objectives or outcomes, they wants the maximum of social harmony and order, and if that means accommodating the sensitivity of groups which feels deeply and passionately about something enough to resort to violence, then the government will just accommodate them. Defending “principles” or “rules” are irrelevant, the point is the objective or outcome, not the principle or rules which can be flexibly applied or bent to achieve the desired outcome.
However, accomodating the government may be, this doesn’t mean that the government will simply allow Muslims to walk over them. Whatever liberality or flexibility the government shows, it must be clearly understood to flow from the government’s good graces and by their own will. The moment you attempt to challenge the government they will vindicate their authority and it will go very badly against you. We can illustrate this again with another example also involving Islam.
For many decades government schools had an ambiguous policy on whether Muslim school girls were permitted to wear their tudung or headscarf. Some schools allowed it, some didn’t. But what happened on a particular occasion was that the principal told the parents that they would not allow the headscarves. The parents refused to comply and their daughter continued to wear it to school. The matter became a national issue and it was escalated to Parliament. The government then set out its unilateral policy: All headscarves will be banned in all government schools. There’s the usual line about the need to maintain social cohesion, integration, harmony, etc, etc, but the underlying message is clear: if you challenge our authority, it will go very badly against you. If you want something from us, ask nicely, quietly, recognising our authority and that it is a grant by our good graces. But the moment you demand something as of right, you’ll learn that you have no rights. This is especially in the light that the Sikhs are still permitted to wear their turbans to school, but you can be sure that they are keeping very, very quiet about it.
Again, there is no defending “the principle” of whether everyone is allowed to wear their religious garb or no one is allowed it. The government acts to achieve objectives, not defend rules or principles. Their objectives are to establish their absolute authority and ensure social cohesion and peace. Insofar as is compatible with their authority, they are willing to accommodate you, e.g. they will ban literature offensive to you, but when you challenge their authority, they will put their foot down and vindicate it.
While Singapore is a common law nation, yet its very “Chinese” approach to government policy illustrates the Chinese “legal” mind. The approach which the Singapore government takes to government policy, Chinese judges take to the law. Those of us who grew up watching Chinese period dramas and reading Chinese stories know that in imperial times there was no distinction between a government official and judge. The governor was at the same time the judge, policy administration and judicial activity were one and the same. The law was an *instrument* of the governor to accomplish his policy objectives, he was not so much bound to the law but was given the law as *tools* for him to wield according to his discretion to accomplish the emperor’s intentions or wishes.
Chinese judges today are not enforcers of the law but first and foremost, government administrators whose primary role is to implement government policy. The law is a policy statement of the government, the intention or purpose of the law were more important than enforcing it rigidly, especially when it subverts that purpose. When the Western news reports draconian and authoritative measures taken by the Chinese government against dissenters, the policy objective is actually the same as that of Singapore: you never try to attack or subvert the government itself, they will vindicate their position and authority against you and it will go very badly against you.
However, we don’t hear of the vast majority of cases which Chinese judges deal with which does not concern with direct attacks on the government itself. In such cases judges can exercise considerable discretion and leeway in their application of the law to ensure peace and harmony. As Hang Ng explains:
Chinese judges are used to making political discernment. When they see a case as a dispute between individuals rather than a challenge to the party state, they can be surprisingly flexible in exercising the law. The line distinguishing the two is of course a fluid one but many Chinese judges are adroit at gauging the political sensitivity of a case. It is worthwhile to note that the conventional criminal-civil distinction does not reflect the discernment that frontline judges exercise. Judges are more concerned about whether a case is routine or “problem”; mishandling of the latter would lead to “malicious incidents.” Routine disputes can be civil in legal classification-family disputes, or other kinds of emerging tort disputes can be found in China. Some disputes can also be criminal, such as cases of assaults, theft and robbery, and hit-and-runs. Even though many of these cases are, legally speaking, criminal cases, the party state has gradually moved away from harsh punishments to resolve criminal cases in a “civil justice” way-i.e., the focus is about getting defendants to compensate and apologize to their victims.
While in Western nations there exist “alternative dispute resolutions” or mediation as an alternative means to litigating the matter through the law, the difference is that in the Chinese legal system, the judge who will eventually adjudicate the case through the courts is also at the same time the mediator between the two parties. In fact, a Chinese judge will attempt to mediate between the two parties before allowing the case to be heard, or may even threaten not to hear it at all, and the same judge will continue to act as mediator even throughout the trial process. The judge is not an impartial referee between two disputants but an active agent of the government to secure peace and reconciliation. As Hang Ng puts it: “This procedural arrangement means that to describe Chinese-style judicial mediation as bargaining in the shadow of the law is an understatement. It is literally bargaining in the face of the law.”
This however simply underwrites the point that the Chinese judge is first and foremost, a government administrator, there to implement government policy and help the government achieve its objectives. To achieve the objectives of harmony, peace and reconciliation, Chinese judges would first always press for mediation and even attempt to force a settlement.
The reasons for pushing for more mediation are administrative and political. Many civil cases handled by the grassroots courts of China resemble the cases handled by the small claims courts of this country. Those cases do not involve large sums of money and litigants are unrepresented. The court procedures are similarly uncomplicated and swift. As mentioned, outside of the big city courts, the mediation rate in China is generally higher than fifty percent. In the absence of a prohibitive costs disincentive, this strongly suggests that judges there are more determined to push for settlement.
Since Chinese judges however are administrators of government policy, to aid the government in the accomplishment of its political goals, this means that the Anglo-American distinction between law and politics doesn’t apply to Chinese judges, they wield the law firmly with an eye to its political ramifications and outcomes:
Sensitivity and insecurity to popular opinion and to protesters also contribute to a bureaucratic mentality shared among frontline judges that privileges mediation and reconciliation. As scholars who study the Chinese judicial system have pointed out, the Chinese system spends an inordinate amount of time facilitating and sometimes even coercing mediated settlements. At the height of this mediation movement about a decade ago, grassroots courts typically recorded a mediation rate of over fifty percent, and some of them boasted a mediation of eighty to ninety percent. Even though mediation is less emphasized under Xi, it remains an integral part of “doing law” in the grassroots courts. Courts avoid using the law if possible, particularly so in rural inland regions.
This tendency to placate is particularly pronounced among cases in which larger groups are involved and in cases in which protests may spread to a wider group. Judges are instructed to exhaust all means to prevent the disputes from escalating into social disturbance and “malicious incidents” (恶性事件 exingshijian), such as protests, demonstrations, or in more extreme cases, violent attacks upon judges that sometimes end in the attacker committing suicide. The eruption of “malicious incidents” results in sanctions of individual judges. Courts are also sensitive to media reports. State-owned but market-oriented media not only are acting to uphold the goals of the party state; they also act as arms of the party state to engage in “popular opinion supervision.” In places where social stability is more vulnerable (economically less-developed inland regions), the environment of judging is so uncertain that it leads to a general aversion to adjudication among the courts there. When dealing with potentially disruptive cases, judges lean on diversionary practices such as mediation in civil trials and victim-criminal reconciliation in criminal trials. Adjudication produces winners and losers. The judges’ concern is that winner-takes-all adjudicative decisions run the risk of challenges by losing parties.
If we follow Hart’s distinction between primary and secondary rules, i.e. primary rules are rules which directly apply to people, secondary rules are rules about other rules, how to recognise valid rules and how to change and amend them, then China has a copious lack of “secondary rules”, they do not have much, if any, rules for recognising validating rules or for creating/amending them. While recent years in Chinese legislation has been characterised by an explosion of primary rules, there has been very little secondary rules. Again, this just goes to the mindset of Chinese judges as administrators first who are not bound to apply the law but may exercise their discretion to wield it or set it aside.
…it remains to be the case that the courts behave more like government bureaucracies than judicial institutions. The party state is interested in the instrumental function of law in promoting good governance. It holds a mindset that is more focused on outcome than process. A rules-based approach to procedural justice that values determinacy is often considered too rigid for promoting economic prosperity or reinforcing social stability, at least in the short term… Many litigants did not see their judges as just carrying the law…. In the area of corporate law adjudication, in which there is a strong will to achieve technical competence, it remains to be the case that judges cannot ignore extralegal factors. During the global financial crisis in 2008, when many export-oriented businesses suffered financial hardship, the Shanghai High Court publicly issued a directive calling for heightened sensitivity to the impact of judicial decisions on distressed industries.
In the common law, there is the idea of judge-made law. Scholars debate about the active role of judges in interpreting and developing the law. In the western tradition of jurisprudence, writers emphasize the distinction of jus dicere and jus dare to suggest that the job of judges is to interpret law and not to make law. Yet the active work of judges in China traverses the dichotomy of jus dicere and jus dare because it is not of a jurisprudential nature. It is administrative. Judges creatively interpret the law, or relax the rules, at times expand and at times contract the boundsof justiciability. Along the way they often offer off-the-book ex parte advice to litigating parties. Chinese judges are at their most innovative best when they work around the rules to create an agreeable solution for all parties. This explains why the dichotomy separating the rule of law and rule by law does not manage to say a lot about the everyday operation of the Chinese courts. It works to some extent in revealing the political and repressive character of it in some areas. But it does not articulate what law does for the party state in other areas. The laws can be at times draconian, at times populist; at times well-publicized, at times vague; at times rigid, at times discretionary.
While there is an argument to be made that this Chinese mindset towards the law is the product of its long history and tradition, there are also much more practical considerations, namely, China is a vast country with literally a billion people under a unitary legal system, judges need flexibility from the law to solve a billion permutations of different cases on the ground.
The reliance on judges’ discretion is almost a matter of necessity. The People’s Republic of China is not a federation. It is a single unitary political entity. China has the largest unitary judicial system in the world. There are over 3,000 courts scattered around the country. It is one of the most centralized and certainly the biggest system in the world. Its laws are single unitary laws. There is no major distinction between federal and state laws in China. There is one set of laws that applies across the country. That set of laws is the national laws promulgated by the National People’s Congress and its standing committee. The laws are, on paper, uniform. The purported uniformity of law, however, means that it is ill equipped to deal with the broad spectrum of problems appearing across different parts of the country. For this unitary system to work in a big and varied country with various degrees of economic development and social and communal structures, it has to allow judges to apply the law flexibly. I use the word “apply” rather than “interpret,” because the flexibility of Chinese judges is of an administrative nature. The use of mediation, as mentioned, is one key practice to instill flexibility. But judges also have other unofficial discretions to adapt the law to accord with local situations. The discretions are unofficial or gray because what judges do sometimes seem to go against the spirit of the law. For example, they have discretion in deciding when a case should be heard. They speed up a case when they want to push for a decision, or slow it down when they do not want to come to a decision. Judges also seem to have more leeway in sentencing and offering suspended sentences, compared to their American counterparts.
While a federal system attempts to create flexibility, by creating a system which disperses legislative power at various levels which judges, supposedly, merely enforce mechanically, China simply empowers judges to use their discretion on when and how to wield the law to achieve the government’s policy goals. The law as such on this understanding, is fundamentally just a government policy statement, a statement of the government’s intentions and will.
I began this discussion with a theological consideration and I would like to end it on the same note. Except for the law revealed from Sinai or by God’s Son, prophets and apostles, God himself has ordained no other law. What God has in fact ordained in Romans 13 are concrete powers and authorities, that is, *actual people*, we are supposed to obey and submit to actual people over their instruments like “the law”, the value of “the law” consists wholly in their statement as the will of actual living people. They are not platonic things which exist in the ether, they are not statements of the will of ancestral spirits of Founders long dead, their sole force is in being wielded by the living.
This insight is also what enables the ancient distinction between reverent submission to authorities and disagreeing and even defying their policies and laws. Today since “the law is the authority” to disagree with the law is to subvert the entire “government of laws” since they are one and the same. But in traditional societies the mark of a loyal servant is precisely to risk the ire of his king to point out the errors of his policy, and if necessary risk punishment in defiance of the same when he sees that implementing and obeying it is a threat to the king’s honour nd rule. We cannot appreciate anymore a Cordelia who disagrees with her father the king out of love for him. The collapse of this distinction, ironically perhaps, is what has disarmed so much of the American ability to resist every petty little rule which is promulgated by their government, because to disobey “the law” is to subvert the governing authority itself, which in theory is only “the law”.