1/ The direction of Chinese law reform, particularly under Xi Jinping, has befuddled observers expecting or hoping China to realise "rule of law". Clearly, something was missed. My new paper argues part of that is Party ideology. Available freely on SSRN: ssrn.com/abstract=32105…
2/ Summary: ideology is often contrasted with rationality, i.e. something that is "ideological" is not in touch with reality or logic. This paper, uses an alternative definition: ideology is a system of ideas, assumptions, objectives and theories used to inform political practice
3/ It does two big things: (1) it explains why the world is what it is; (2) it provides a recipe and direction for change. As such, it contains to major intellectual pillars: (1) an epistemological base, including a worldview, view of human nature, theory of history, etc.
4/ and (2) a political programme, with policies aimed to achieve its objectives in the light of the epistemological architecture. For instance, if one assumes economic wealth is desirable, and markets generate most of it, a pro-market policy is required.
5/ This paper looks at the historical development of three major ideological questions in the Chinese context: (1) what is the purpose of politics, (2) who is in charge and (3), how do they operate?
6/ The purpose of Chinese politics was forged the late 19th Century: the Empire increasingly suffered domestic unrest and external threats, unable to respond. All attempts at incremental reform failed, and as Qing fell, the search began for a way to save the Nation.
7/ The ultimate objective: restoring China's wealth and strength. Successive governments defined this differently: Sun Yat-sen's "Three Principles of the People", Deng Xiaoping's "Moderately Prosperous Society" and Xi Jinping's "Chinese Dream" are all variations on the theme.
8/ This means Party ideology commits China to achieving a goal that is not connected to the pursuit of a particular system of government or a particular approach to the economy. In principle, anything that generates more wealth and strength is fine.
9/ That brings us to the second question: who should be in charge? One major reason the early Republic failed was because of the asymmetry in political power among its major stakeholders: intellectual revolutionaries on the one hand, local military commanders on the other.
10/ The failure of the Republic taught leaders such as Sun Yat-sen that it would be necessary to combine intellectual power with military power, hence the creation of the Whampoa Academy and the Guomindang army. Later on, the PLA would be (and remains) the armed wing of the CCP.
11/ Mao also understood that unity over civil and military sides was necessary, this is what he meant with his dictum that "political power grows out of the barrel of a gun".
12/ Moreover, in pursuit of assistance in governance, the Guomindang received considerable help from the newly-established USSR. Sun was no Marxist, but was very interested in Leninist ideas about Party organisation and rejigged the GMD along those lines.
13/ That the Communist Party took inspiration from Moscow needs no explanation, even if the collaboration was often grudging in real life, and ended in acrimony.
14/ As a result, the Party of today is still deeply influenced by the fundamental tenets of Leninist thinking: to be a small, disciplined organisation of professional revolutionaries dragging the country towards the sunlit uplands of a utopian future.
15/ The Party still justifies its authority in both military (victory in the Civil War) and intellectual terms. More specifically, it claims exclusive command of the theory of history that is Marxism. Therefore, only the Party can bring historical salvation.
16/ So if the goal is to achieve wealth and strength, and the Party are the people who should do it, how should they set about their task? The answer is: science.
17/ The introduction of Western thought in China in the 19th and 20th Centuries brought, amongst others, a very powerful idea: positivism. This is the notion that, like the natural world, human society is subject to objective scientific "laws".
18/ These laws (or guilü) are not only intelligible, they can also be used to predict and control society. Most important, in the CCP's thinking, is Marx's theory of history. On this basis, Mao elaborated the doctrine of contradictions. In short, history is divided into eras.
19/ Historical progress happens through the resolution of contradictions. Each separate era is defined by a "main contradiction", from which all subordinate contradictions flow. A bit like the end boss in a Super Mario game. There are also two kinds of contradictions.
20/ (1) Contradictions among the people, which can be resolved through better education, and (2) contradictions with the enemy, which must be addressed through struggle.
21/ During the Mao era, the second kind was prioritised, leading to the Cultural Revolution. Subsequently, Deng Xiaoping used this tool to signal the Cultural Revolution was over. A new era was begun, in which the main contradiction was material poverty, not class struggle.
22/ This is why Xi's recent announcements are so important: he has officially ended the era that began with Deng in 1978, and inaugurated his own. The major contradiction is no longer poverty, but imbalance. Ideologically, this is the most powerful signal a CCP leader can send.
23/ Deng also heralded a new approach on how to resolve contradictions. Namedropping Mao quotations was no longer sufficient, as Deng stated that practice had to become the criterion for truth, and truth had to be sought from facts.
24/ Science thus became a priority under Deng. Not just in terms of natural science and technology (which was seen as crucial in assisting China achieve wealth and strength, and continues in today's ambitious plans for AI, quantum computing and big data), but also social science.
25/ Remember: the Party sees society as a system governed by objective laws. The task of rulers is discovering those laws and using them to generate progress, in the same way one can put someone on the moon once one has discovered and used laws of gravity, combustion, etc.
26/ One example of this link is the leadership's embrace of complex systems theory in social governance. @He_Shumei and Borge Bakken have done some very interesting work on this, and the (in)famous social credit system is only one example of this thought in application
27/ To summarize: the core of CCP ideology is that (1) its primary purpose is to achieve a utopian state of wealth and strength, (2) only the Party has the wherewithal to do so and (3) scientific knowledge is the primary basis of policy decisions.
28/ The fundamental assumption is "monism" (h/t Isaiah Berlin). This assumes there is a single truth, whose components are compatible and form a single whole, as one truth can't be incompatible with another. This, in turn, assumes the universe is harmonious and coherent.
29/ It is impossible to understate the importance of this assumption. For if truths cannot be incompatible, it follows there can be no legitimate disagreement on questions of right and wrong. In other words, the assertion of monism inevitably requires intellectual monopoly.
30/ Now what does this mean for Chinese law? First things first, one must be cautious not to overdetermine the point. We will not find the substance of, say, legal provisions on liability of e-commerce sellers for fake goods through reasoning from ideological first principles.
31/ It is also the case that ideology is an oft-abused tool: it can provide a pretext as much as a justification. This is, however, not exclusively Chinese, as the US Republicans' history with the deficit demonstrates.
32/ Nevertheless, it isn't because ideology doesn't mean everything, that it means nothing. Compare: no-one would say the Bible is of no importance in studying Christianity because of child abuse in the Church, or because there are wildly diverging theological interpretations.
33/ We must also unpack the many layers of the ideological onion. For instance, it's often said that Party cadres don't believe in ideology anymore, or that China isn't truly "Communist" anymore. Leave aside for a moment the point that with Communist, we usually mean "Stalinist".
34/ Leave also aside for a moment the huge difficulty of actually getting a proper picture of what cadres believe in or not. Perhaps they don't believe everything Xi Jinping says, but they will be rigorously trained in the jargon and method of CCP policymaking.
35/ `They will see this as the way governance is supposed to be done. Remember, a bit of healthy sarcasm is part of all organisations. Moreover, (and perhaps slightly more controversially) it actually doesn't matter that much whether all cadres zealously absorb Party ideology.
36/ As long as they make the right ideological noises and use correct verbiage, the system holds together. This is one major point concerning ideology: it primarily a tool of discipline, not one of intellectual inquiry or truth-finding.
37/ What does this mean for law? This paper ventures three suggestions: (1), ideology delineates the spheres wherein legal rationality is permitted, (2) ideology defines the nature of particular legal rules, and (3) ideology conditions and constrains legal actors.
38/ What do I mean with spheres of law? In the beginning, I stated that China's leadership doesn't commit to a particular form of governance or economic structuring on principle, only to achieving wealth and strength. This explains major policy swings such as Deng's reforms.
39/ The leadership thus also doesn't commit to a particular form of rule of law, where "law" is seen as a consistent and coherent whole across its entire scope of application. Law is a tool, controlled by the Party, to applied where it will assist in achieving its aims.
40/ Moreover, due to the Party-State structure, entire swathes of what is "law" elsewhere, particularly public law, is located not within the jurisdiction of the State, but within the prerogative of the CCP. Think, for instance, about the anti-corruption tools of the CCDI.
41/ @FloraSapio once wrote about zones of lawlessness in criminal justice. This paper argues that this thinking could be extended across the board: legal rationality in China occurs within specific, well-demarcated spaces. Sometimes, these spaces are huge (economic law).
42/ But there will also be spaces where legal rationality is explicitly excluded, for instance because it is an issue dealt with by the Party internally, or because it is an issue that is dealt with politically, not legally.
43/ Second: ideology defines the nature of law. This is best explained with an example: individual rights. Liberal democracy is based on the idea that all are "endowed by their creator, with certain unalienable rights". This is because liberal democracy is non-teleological.
44/ In other words, the idea behind liberal democracies is that the state is a vessel to further individual flourishing. This requires first and foremost that the state cannot touch fundamental interests of the individual, which we have come to see as rights.
45/ In China, the primary objective is realising collective wealth and strength. As Xi Jinping said: only if the country does well, can individuals do well. If individual actions endanger or harm the big picture, it is ideologically legitimate to curtail or proscribe such actions
46/ Hence, the Chinese legal system does not provide for a way, for instance, for the Constitution to be actionable, or for the constitutionality of subordinate regulations to be tested.
47/ Lastly, ideology conditions and constrains legal actors. As I said before, ideology contains the fundamental viewpoints and methods with which legal actors are imbued from childhood. In all their education and training, they learn specific ideological methods and viewpoints.
48/ So even if they disagree on some points, the likelihood that they will object to the entire canon is small. Moreover, even if they did, they simply lack the language in which to express themselves, as language itself has become a tool for ideological control and rectitude.
49/ Why is this important? 2 reasons: (1) scholars and observers must take the CCP, and its ideology, more seriously than they have done in the past. China does not owe it to us to fit in our mental frameworks. Consequently, these often do not (completely) apply in China's case.
