Document Type

Article

Publication Date

2005

Abstract

The West believes that without formal legal rules (the rule of law), how society operates is not transparent. This opaqueness in how things get done discourages trade, including foreign investment, which in turn makes overall economic development more difficult. Instead of predictable legal rules, the fear is that the void will be filled with unpredictable and arbitrary human indiscretions. Furthermore, the West believes that the absence of the rule of law makes the basic protection of human and civil rights problematic.

However, the Western view of the rule of law is not the only model. Alternative cultural assumptions about the rule of law exist. In particular, this Article draws on China's historical and contemporary perspective on the rule of law. In contrast to the Western view, China historically and contemporaneously views the rule of law with skepticism.

As this Article explores in Part II, China has for many years analyzed the comparative merits of legal formalism (rule of law) and of cultural norms (rule of people). The Chinese have traditionally framed this issue as a debate between two schools of thought: the Legalists and the Confucians. China's own history and its observations of the West's experience with the rule of law further inform its perennial struggle between these two approaches. Moreover, China's skepticism of the rule of law continues today.

Part III of this article studies two contemporary situations: the protection (or lack of protection) of intellectual property and disputes over the use of land. Both situations offer a window into how the rule of law and the rule of people coexist and often conflict. In Part IV, the implications of the analysis in Parts II and ill are discussed. In particular, the uneasy relationship between the rule of law and the rule of people, prompted both by China's skepticism of the rule of law and by China's comfort with the rule of people is explored.

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