The main empirical issues addressed in this field include the retreat of the Party-state; the evolution of the legislature, judiciary, legal profession and administrative law regimes; and the nexus between rule of law and economic development, democracy and human rights. The ‘law and order’ meta-narrative is visibly played out in Party discourse, Five Year Plans, Constitutional evolution and the astounding pace of development of the formal legal system. The thickest descriptions and predictions of the story are those that also take into account trends and trajectories in popular and Party legal consciousness and ideology.[i]
The basic distinction made in studies of the role of law in maintaining order is between rule by, and rule of, law:
Whereas the core of rule of law is the ability of law and legal system to impose meaningful restraints on the state and individual members of the ruling elite, rule by law refers to an instrumental conception of law in which law is merely a tool to be used as the state sees fit.[ii]
In China, the distinction has proved difficult to make empirically (which is nicely reflected in the lack of a linguistic distinction, both concepts generally translated as fazhi, literally ‘law-ruled’). While generally scholars are in agreement that the direction of legal reform over the last three decades has been away from rule by man and towards rule by law, the extent to which rule of law is emerging empirically, and its optimal nature and role in the Chinese context, are matters of much debate in the literature.
The focus of most studies of Chinese law and order has been fixed on the most visible manifestation of the working out of that nexus, namely institution-building, rhetoric and policy at the central/top level of the Party-state. The rule of law question has been asked through the lenses of globalisation, modernisation, and economic development. Opinions diverge in the literature on whether and to what extent the Chinese polity possess a notion of law that is consistent with that required by rule of law. Alford, for example, argues that ‘the principal state architects of China’s post-Cultural Revolution law reform project have a genuine ambivalence toward their undertaking’.[iii] Dowdle, on the other hand, argues that any such ambivalence ‘manifests itself in practice, not conception. Normatively, the Chinese, including the leadership, are overwhelmingly consistent in proclaiming the supremacy of law over other forms of political authority and over private interests’.[iv]
However, the ‘top-down’ approach, predicated on these meta-narratives, and focusing on official, state-endorsed conceptions of law and order, must be supplemented by increased attention to the experiences and expectations relating to law and order (which I will broadly term ‘legal ideology’) of citizens in society. Traditional and historical cultural factors, in which Chinese conceptions of law and order are grounded, have been discussed in depth in the literature,[v] but tend, like the rule of law debate generally, to be examined at the level of the elite polity. If, as Peerenboom argues, rule of law is a function of both institution-building and legal culture, the question must be asked: to what extent is central law-lauding rhetoric penetrating local spheres in which ‘law’ (fa) is traditionally regarded as an inferior means of social ordering than ‘reason’ (li)? To what extent are Beijing’s winds of change, including the state’s ‘verbal homage to the sanctity of law’,[vi] penetrating the local sphere and popular ideology?
* Anna Kloeden is a PhD candidate in law at the University of Oxford.
BY SAM BYFIELD | MARCH 14, 2012
The first White Paper on China’s aid program was released in 2011. The White Paper noted that from 2004-2009 China’s aid program increased by roughly 30 percent each year. In 2009 China provided over 250 billion yuan (around $US 40 billion) in aid, consisting of approximately 41% in grants, 30% in interest free loans, and 29% in the form of concessional loans. The White Paper notes that China’s aid focuses on agriculture, economic infrastructure, public facilities, education, health care, and, increasingly, climate change. While China itself is still a developing country, this level of expenditure establishes it as a major global aid donor.
In a similar, though perhaps more overt way to the aid programs of other countries, China’s aid program is based on both China and the recipient country benefiting (particularly economically) and is closely tied into China’s broader foreign policy aims. China’s aid has served as a tool to dissuade governments from providing diplomatic recognition to Taiwan, discourage governments from supporting Japan for a seat on the UN Security Council, enhancing its global diplomatic presence and creating warmer relations with developing countries to garner support for China’s policies in international fora. Some commentators have noted that China’s aid program also serves its own development needs, facilitating the export of raw materials to China, and requiring that 50% of project materials and services are sourced within China. This contrasts with the aid programs of the United States, United Kingdom, Australia and most other major aid donors, which are generally removed from their own economic development aims. Many Chinese funded public works – like stadiums, bridges or dams — tend to be highly visible and offer tangible benefits; and such activities are often announced at bilateral summit meetings, acting as a powerful symbol of friendship between China and other countries. Accordingly, Chinese aid can be seen not only as serving ‘hard’ diplomatic and security interests, but also as an example of Joseph Nye’s notion of ‘soft power’.
China’s aid to Africa, which has increased substantially over the past few years, illustrates many of these points. The White Paper indicated that for the 2009 fiscal year, nearly half (46.7 per cent) of Chinese aid was committed to Africa. Chinese aid in Africa can be viewed as contributing to the diplomatic objective of forging friendships with ‘non-aligned’ nations and competing with Taiwan for diplomatic recognition. On this point China has been successful, with only four countries in sub-Saharan Africa still maintaining official relations with Taiwan. By the same token, however, China is hardly unique in linking international development assistance to broader foreign policy objectives.
China’s aid program in Africa is also widely seen as focusing on its objective of securing oil, minerals and broader trade opportunities for its growing economy. An article in the Economist noted that ‘China has become the continent’s most important trading partner after America; trade between Africa and China has surged from just over $6.5 billion in 1999 to $107 billion in 2008.’ African oil reportedly accounts for 80 percent of China’s trade in the region and about one third of its oil imports. China’s aid projects are often backed by the natural resources of recipient countries. In war torn Angola, for instance, reconstruction was helped by oil-backed loans from Beijing, under which Chinese companies have built roads, railways, hospitals, schools and water systems. Nigeria took out two similar loans to finance projects that use gas to generate electricity. As a 2010 article in Foreign Affairs noted, in poor, oil-rich countries, which are often cursed by their mineral wealth, ‘resource-backed infrastructure loans can act as an ‘agency of restraint’ and ensure that at least some of these countries’ natural resource wealth is spent on development investments.’ This leveraging of natural resources in Africa closely resembles the relationship between Japan and China in the 1970s and 1980s, where China leveraged its natural resources to receive loans and access to much-needed infrastructure and modern technology.
* Sam Byfield works as a policy adviser in the in-ternational development sector and was a delegate at the inaugural Australia China Youth Dialogue in 2010.
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