The Chinese language is known for its evocative sayings, one of which – 青出于蓝而胜于蓝 – very nicely captures the sentiment I wish to convey in this short foreword marking the publication of Samuli Seppänen's book Ideological Conflict and the Rule of Law in Contemporary China: Useful Paradoxes. Drawn from the writing of the philosopher Xunzi (approximately 310–235 BCE), a somewhat textualist translation of this phrase would read that “the blue that emerges from the indigo plant is even bluer than the plant itself,” with the larger meaning being an acknowledgment that the scholar in question has surpassed those with whom he studied.

Useful Paradoxes represents an extraordinary achievement. Its genesis lay in Samuli's skepticism, informed by critical legal theory, of the pieties surrounding liberal legality and of associated conventional understandings of the idea of the rule of law. This gnawing intellectual curiosity led Samuli first to look toward China, with its abundance of self-proclaimed efforts to reimagine what a rule of law might be in the hope of finding alternative understandings capable of resolving such tensions. The very scrupulousness that drove this undertaking, however, kept Samuli from easily resting content – and so, unable to find what he had thought he might from the writings of leading Chinese thinkers of the day, Samuli next took it upon himself to decamp to China, there personally and at length to engage a host of the most important and innovative thinkers about law in the contemporary PRC.

Samuli's exploration did not yield what he would consider a normatively or conceptually preferable alternative vision of what a rule of law might be – but it did lead to a groundbreaking study of the range and character of contemporary Chinese legal thought. Useful Paradoxes deserves praise for the empathetic but rigorous manner in which it delves deeply and deftly into the thinking of a bevy of major and quite varied thinkers in law, including, but not limited to, such major figures as Cui Zhiyuan, Deng Zhenglai, He Weifang, Ji Weidong, Jiang Shigong, Li Buyun, Luo Gan, Sun Guohua, Wang Liming and Zhu Suli. There is no better critical guide in a western language to the leading figures in early twenty-first century legal thought in China.

Introduction

The two previous chapters provided examples of ideological projects that both make use of and are destabilized by various paradoxes, contradictions and conflicts. This chapter considers Chinese “avant-garde” scholarship, which, in contrast to the other three ideological positions, foregrounds paradoxicality. A strand of Chinese avant-garde scholarship identifies an element of paradoxicality in its own ideological project and explains this as a necessary and positive consequence of ideological renewal. The avant-garde tolerance for paradoxicality is caused by the discrepancy between the radical role that Chinese avant-garde scholars have assumed and the actual results of their scholarship. Instead of settling for existing rule of law conceptions, avant-garde scholars look for means to increase social integration and harmony, to facilitate self-discovery of the Chinese people and to expand Chinese and global intellectual horizons.

As such, there need be nothing utopian or unrealistic about such ambitions. It is certainly possible to imagine a form of social order that differs radically from the models presently promoted by Chinese conservative socialists, mainstream scholars and liberals. One only needs to look back to the 1970s to find a model for society that was not based on the conservative socialist dichotomy between autonomous law and the Party's will, on the mainstream notion of individual freedom and equality protected, to a limited extent, by rights, or on the liberal ideal of procedural justice. In the 1970s urban China was built around the “work unit” or danwei. The danwei was a cellular society (a factory or a hospital, for instance) that was often literally enclosed by walls.

Three generations of Chinese legal scholars

This chapter places the four ideological positions of Chinese rule of law scholarship into a historical and political context. At the outset it must be recognized that there is no single way to map the different ideological positions in Chinese legal thought. Chinese scholars are nearly unanimous in their belief that no “schools of thought” (学派) exist in China. At the same time, a number of Chinese scholars believe that there are specific research “paradigms” (范式) within Chinese legal academia. The distinction between the two concepts is categorical to many Chinese scholars, but its meaning appears to be one of degree. “Schools of thought” suggest more permanent and stronger institutional divisions than do “paradigms.” The paradigms within Chinese legal academia are usually defined with reference to notable legal scholars: the names Zhu Suli and He Weifang often come up, for instance. Professor He Weifang's name generally stands for the wholesale reception of Western legal institutions (such as strengthened constitutionalism). Professor Zhu Suli forms the counterpoint to He Weifang's liberalism. Zhu is best known for his concept of “native resources” and his application of various aspects of Richard Posner's legal thought to the Chinese context. Other names come up more randomly. In addition to the scholars on whom this book provides specific sections (Cui Zhiyuan, Deng Zhenglai, Gao Hongjun, Ji Weidong, Jiang Shigong, Li Buyun, Wang Liming and Xia Yong), these include, among dozens of others, Cai Dingjian, the late liberal-leaning constitutional scholar; Liang Zhiping, an advocate of cultural explanations of law; and a number of other scholars such as Chen Duanhong, Ling Bin and Zhao Xiaoli. The bêtes noires for liberal and mainstream Chinese scholars are China's conservative socialist leaders and the most vocal of the neoconservative scholars. In the background of the academic discourse is the official dogma of the CCP.

Introduction

The aim of this chapter is to demonstrate the potentially destabilizing effects of theoretical paradoxes, contradictions and conflicts in rule of law scholarship. To this end, the chapter is built around two specific narratives about the rule of law. First, there is the narrative of ever-expanding and ever-thickening rule of law conception, which mainstream Chinese legal scholars have used to great effect to establish a notion of continuous expansion of the autonomy of the law and rights protections. These scholars justify the expansion and thickening of the rule of law with regard to a deepening value consensus. Some of them describe the rule of law as an inherent part of the civilization process or of modernization; others see it as an element of the expansion of the “humanistic spirit”; and yet others associate it with a “faith” in law that has emerged in the course of human history. In order to illustrate this mainstream narrative, this chapter makes excursions into the writings of two well-known Chinese law professors. First, it describes legal theoretical strategies adopted by Professor Wang Liming. Wang is an eminent figure in the development of Chinese civil law and is perhaps best described politically as a liberal-leaning centrist. Second, it examines the development of rule of law theories in the scholarship of Professor Li Buyun, a well-known specialist on constitutional law. Professor Li's work spans the Marxist political theory of the 1970s, the professionalization of the legal discourse in the 1980s, the human rights ideology of the 1990s and the turn to neoconservative values in the 2000s. Analyzed together, Wang and Li's texts illustrate the various argumentative strategies through which mainstream legal theorists have pushed the boundaries of autonomy of law to new fields.

A change of perspective

This book seeks to participate in the study of global legal thought by examining ideological conflicts in Chinese legal scholarship. More specifically, it studies arguments about the so-called “rule of law,” which is nowadays often translated into Chinese as 法治. Scholarship on the rule of law is vast, both in China and abroad, and the concept has been declared passé on many occasions during the past decades. This book attempts to present a modest perspective change to the study of the rule of law phenomenon. First, it seeks to describe the internal dynamics of the Chinese rule of law discourse, instead of comparing Chinese conceptions of the rule of law to one or another external standard. To this end, it examines ideological divisions within Chinese legal academia, as well as their relationship to legal theoretical arguments about the rule of law. The book describes the argumentative strategies used by Chinese legal scholars to legitimize and subvert China's state-sanctioned rule of law ideology, and it examines the efforts of Chinese legal scholars to articulate alternative rule of law conceptions. In addition to this descriptive project, this book advances a more general argument about the rule of law phenomenon. On the highest level of generalization, and with certain far-reaching qualifications, it insists that many interventions in the rule of law discourse are better seen in terms of their performative qualities rather than as analytic propositions, descriptive statements or as good faith arguments about the nature of the rule of law. In order to illustrate this argument, this book demonstrates that various paradoxical, contradictory and otherwise implausible arguments about the rule of law discourse play an important role in the Chinese debate about the rule of law.

The audacious scope of this book was more a function of my ignorance than the result of an informed scholarly decision. The body of Chinese scholarship on the rule of law is, first of all, voluminous. This can be easily attested at the All Sages Bookstore in Beijing, which features a seemingly never-ending array of thought-provoking interventions into the debate on the rule of law and legal thought, more generally. After I had learned enough Chinese to appreciate this fact, I also realized that Chinese legal scholars do not write in a vacuum but instead engage closely with global legal theoretical debates. Understanding these global debates is a precondition for understanding the interventions in the Chinese debates on the rule of law. Soon it also dawned on me that many Chinese legal scholars use language suggestively and against a background of implicit, contextual local knowledge. This adds yet another layer of complexity to the interpretation of Chinese scholarship on the rule of law. In the background to all of this is the question of traditional (or traditionalist) Chinese thought and its possible influence on contemporary Chinese legal discourse. And it goes without saying that understanding scholarly arguments about the rule of law is only a small step toward saying something relevant about the subject of the debate itself, the rule of law. This creative practice is the goal of Chinese rule of law scholarship, and to do justice to this scholarship one should set one's goals equally high.

Fortunately, I was able to speak with thirty Chinese legal scholars who were generous with their time and helped to make the project somehow manageable. I will not thank all these scholars here, as I did not obtain permission from many of them to be associated with this book. I must also emphasize that the scholars discussed in this book did not read this manuscript or sign off on my interpretations of their texts. I apologize to these scholars if I have not grasped the meaning of their scholarship, or if they feel that my emphasis is somehow wrong. Any mistakes in this book are solely my own fault.

Some realism about ideological realism

Before turning to the analysis of specific ideological positions, it may be helpful to demonstrate the limits that certain existing traditions of social theory present for achieving the objectives of this book. This chapter makes two simple points: (i) many social theoretical arguments about the rule of law are best understood in terms of their social effects; and (ii) an awareness of this fact should make any interpreter of the Chinese rule of law discourse skeptical about attempts to interpret it – or the “rule of law,” for that matter – through a single social theoretical tradition. This chapter makes these points in conjunction with a discussion of ideological cynicism. As was suggested in the introductory chapter of this book, ideological cynicism is a salient feature of the Chinese rule of law discourse. The reason for this is easy to understand: a consistent, uncompromising ideological slant one way or another (but especially toward liberalism) may have serious adverse consequences for a scholar's career. As a consequence, there is a suspicion within Chinese legal academia that Chinese legal scholars do not make their true opinions about the rule of law known. There is also a conception, held by liberal and conservative-minded Chinese legal scholars alike, that the ideological doctrines of socialist countries (including the People's Republic of China) are particularly disingenuous. The neoconservative Professor Jiang Shigong, for instance, points out that in the course of the twentieth century many of the socialist countries “adopted constitutions more radical in their protection of human rights than Western countries to prove the superiority of socialism over capitalism.”

Introduction

This chapter continues the analysis of the conservative socialist ideological position and its relationship to liberal legal thought. The chapter's specific aim is to demonstrate that paradoxical and otherwise implausible statements about the rule of law may be both constitutive of and useful for an ideological project. As the starting point of this argument, this chapter seeks to reassess the perception that the Chinese leadership approaches law in an instrumentalist manner. By instrumentalism most students of China do not refer to the adjudicative theory according to which law is a means to an end. This kind of instrumentalism was, of course, central to the development of twentieth-century legal thought. “Law as a means to end” connoted the proposition that the empirical analysis of society should influence the legal ought. In China, the approach has been popularized by Zhu Suli's neoconservative legal thought, which seeks to justify a pragmatist approach to adjudication in China. In contrast to this adjudicative theory of instrumentalism, in foreign studies of Chinese law instrumentalism generally refers to those ideological conceptions that concern the relationships between the legal system and other parts of society rather than the form of legal thought within the legal system. In this sense, instrumentalism signifies an ideological conception that regards legal norms and processes not as the final arbiters of social choices, but as tools to implement decisions that emerge from other, supposedly more legitimate sources of normativity, such as the decision-making processes within the Communist Party.