This webiste has been hosting a online discussion for QUT law students on the topic of rule of law (see here). If you have read through the comments and posts from them, you will see how they are thoughtful and how smart they are. There are a few points that I made in the discussion forum and I want to present to you here in case that you are not about to go through all of the posts and discussions.

The disscusion start from several questions including prof. Cohen's lecture "Is There Law in China? Is There Justice?",  What influence does the communist party have on the implementation of the rule of law in China? and Anything in Media Concerning the Chinese Legal System Recently?

The autocracy of the Chinese communist party

Farra points out the autocracy of the Chinese communist party here; I have to disaggree with her/him about the term "autocreacy".

First of all, to understand the rule of law in China, you can not separate it from China's success in the business arena. It is a globalised age which is particularly true in the case of business. The pursuit in free market economy contributes significantly to China's success in the field of domestic and international trade and business. Market economy is based on many crucial rules which are globally applicable. These rules include the freedom of contract, protection of private property, fair judicial system, effecitve legislature, etc.. Without the rule of law, it is hardly possible that the operation of market could be successful.

Second, to understand the rule of law in China, you need to consider the traditional notions and practices concerning law and social norms. The ancient Chinese legal system was very influential for over a thousand of years in Asia. However, it is fair to say that there was no sense of "rule of law" at all, but "rule by law" which means the law was use as a means by which the emperors can control and rule their people. Maybe, today, to some extent, the government still consider law as a means of controlling. However, it has been changing. The political civilisation, to me, is at the centre of human being's civilisation and culture, and is always evolving.

Third, I don't think the terms such as "autocracy" and "dictatorship" can be used to describe the political structure in China because these terms are too ideology-oriented. I believe while talking about socialism, communism or capitalism, "coercion" is a key word. While commenting on Kevin Kelly's article The New Socialism: Global Collectivist Society Is Coming Online (see here:http://www.wired.com/culture/culturerev … ntPage=all), Professor Lessig said "[a]t the core of socialism is coercion (justified or not is a separate question)." (See here: http://www.lessig.org/blog/2009/05/et_t … is_is.html) However, other commentators remind Prof. Lessig that such rules as property law are also coercion.

To me, the question might be the source of the coercion or where the coercion comes. Under the rule of law, coercion should be created through a due process with fair negotiation between citizens. I can see that it has been happening gradually in China because the making of law is getting more and more people involved.

The prevalance of the rule of the law and the evolution of the political civilisation are not solely reliant on a political party but also on the people. Once the spirit of rule of law has taken root in the society, it would not be stoppable by a political party. It is a bit optimistic; however, it is also something that we can believe and pursue.

The Rule of Law in China and Beyond

Many students have put very inspiring and thougtful comments on Prof. Cohen's lecture, for example, see here. As I have said, I'm a little bit surprised not by Prof. Cohen's lecture but by our QUT law students's impressive thoughts. As law students outside of China, your oberservation and thoughts on the legal system in a country like China are really interesting and inspiring.

China's modern legal system is very young and radically evolving. However, in any given society which particularly is rich of traditions, the law is just one of the forces that maintain the social order and sustain social justice. There are many moral rules, customs and other factors that work along with the law.

The situation of Miss Deng Yujiao may upset many people; however, the final outcome of the case should be a little bit encouraging as the public opinion prevail.

In China, there are some proverbs saying only the one who follows the public opinions and the morale of the people could be crowned. That is to say, whoever would be the emperor, he must do something good to win the supports of the people. The public opinions or morale to some extent was functioning as some sort of counterbalance to the dictator's power. That might be how the ancient Chinese society worked; in the case the people eventually cannot take the sufferings caused by an emperor, people would rise up and pull down the dynasty.

The world today is absolutely different; however, the fear of dominant public opinions or morale to some extent are sitll functioning as counterbalance to Communist Party's power.

But, that is not nearly enough at all. The rule of law is the only available alternative approach; I cannot aggree more with LC Davis that we can see the expected progress albeit a little slowly...slowly ...and slowly...

Bridget Lewis asked further "how far does that public attitude have to shift? What is its starting point? And how has that traditional public attitude hindered development of the rule of law in the past? " (see here)

I believe that the key point of democracy is that it allows the voices of the pubic to be heard by the government and the dominant public opinions are appreciated and implemented correspondingly. Democracy enables the public to overthrow the ruling power which brings about too many sufferings without violence and without the death of a large number of people. Democracy allows the people to make decisions BY themselves rather than the dictator to make decisions FOR the people. In this sense, democracy is the most prominent fruit of the evolution of human’s civilization. There might be different approaches to accomplish democracy; however, there is no such thing as socialism democracy or capitalism democracy.

The rule of law is in correspondence with democracy instead of how democracy can be accomplished; in other words, to me, the rule of law is democracy. Therefore, there are no different standards to assess or estimate the achievement of the rule of law in any given society. That is to say, whatever the diversities or varieties of traditions of any given society are, there is coherency for the testimony to the rule of law universally. I believe that is why you, as Australian law students outside of China, are absolutely capable of examining the status quo of the rule of law in China.

The parameters that you have employed such as the police power, the independence of the court, the law-making process, the enforcement of the law, the protection of the minority and disadvantage group, etc. are indeed rational and effective.

As what has been addressed by many of you, there are arising conflicts between the public opinions and the current legal and political system. It is of the implication that there are a great number of serious problems with this system. The rule of law is not nearly achieved at all!

In a given society with the rule of law well established, the public opinion should not affect any particular judicial case and the judge should keep away from public pressure. However, as you can see for Deng Yujiao case, there are bargaining between the public and the government including the judicial unit.

Therefore, in today’s China, the prevalence of the public pressure in a particular case is both good and bad but in a variety of senses.

The gap between judicial outcome in a particular case and the public opinions illustrates that the current political and legal system is far from the expectation of the public. The system should be reformed in accordance to the public appeals.

Since, such reform can hardly be visible in a short term; the public opinions and pressures may play a constructive role, bringing social justice to individuals if they are lucky enough.

In conclusion, the rule of law requires that the public opinions, traditional values, customs be written into the law to an extent as large as possible. Without doing so, the public opinions could be constructive but most likely destructive because if the judge is making decisions not based on the law but on unwritten public opinions the rule of law would be undermined.

To this end, I can say that the starting point of enhancing the rule of law in China is to reform the current political and legal infrastructures and build new ones incorporating the public opinions in the process of law-making instead of at the stage of law enforcement.

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