Democratization versus Rule of Law

Résumé du document

Professor Daniel Saadoun distinguishes three features that are deemed essential in a modern democracy: universal suffrage, the inscription in the preamble of the Constitution of a set of rules that the State cannot modify or erase and the obligation for the State to look after all the rules adopted: the State is not beyond the Law i.e, the principle of Rule of Law. As expected, China is far from reaching all these requirements. Any kind of popular expression is prohibited. There is no such thing as a Declaration of Human Rights, because the major tenets of the regime's political philosophy are not based on an abstract conception of the human beings, for example, freedom of religion is unconceivable in China, were Christian parishioners and Falun Gong practitioners are actively persecuted. Yet, the third characteristic feature of a modern democracy, Rule of Law, is being achieved at least partly today in China. Since 1989, the technocratic rule has emphasized the necessity to implement and take care over the rights of workers, peasants etc. These changes can lead us to cast doubt on the real democracy forces in China, apart from a minority of students and pundits. Has the democratic ideal really been replaced by the day-to-day progress of Rule of Law? Is China's mix of economic performance and Rule of Law really viable? Has China staged a new paradigm of modernization? Or, is this move towards Rule of Law something only transitional, periodical, that will not prevent China from democratization, eventually? In this case, should we favor a bottom-up or a top-down approach for China's move towards democracy?

Extraits

[...] This concept of a Rule of Law regime that is now being implemented, though facing difficulties, proves efficient empirically. Indeed, the people are more attracted by a system in which their day-to-day problems regarding employment, hukou, corruption or abuses by police forces are well- addressed, than a system surely virtuous, but full of fanciful ideas that have no meaning for them. With the fast-growing marketization of the economy, employers' violations of workers' interests arose. Yet, in their majority, workers did not choose the street protest to find an exit for their problems. [...]

[...] Besides, Pan Wei does not recommend that China democratize itself after having implemented Rule of Law. If he thinks that it is a prerequisite for those that cherish the democratic ideal, he thinks that democracy is not necessarily the final purpose. Indeed, the answer to the question “Until where can the government intervene in my personal affairs?” (Negative liberty) is essentially different from the answer to the question: governs (Positive liberty) as Isaiah Berlin puts it in his book Praise of Liberty. [...]

[...] Hence, the question of whether democracy will occur in China remains a question of time and means. As Suisheng Zhao notices it, transition toward democracy will only occur if the ruling elite, or a substantial section within it, perceive that the potential advantages of a shift from liberalization to fundamental democratization outweighs the risks of trying to sustain authoritarian one-party rule.” So far, the CCP has succeeded in bridging the gap left by Tiananmen atrocities, substituting economic performance and a nationalist legitimacy to the old Marxist-Leninist theories. [...]

[...] Yet, there is a risk that the Chinese people, if genuine progress is not made, become aware that what is mainly hampering Rule of Law from being implemented is one of the CCP's everlasting features, i.e. control of the judiciary. If the 1982 constitution separates the judiciary from the administration, concretely the judiciary is independent as far as it does not jeopardize the CCP's legitimacy. The Sun Zhigang case was a triumph because it did not put the CCP in trouble. [...]

[...] In this respect, it seems that Rule of Law responds to Chinese people's demands. However, this vision has been mainly sustained by conservative thinkers, blinkered and unable to see, first, that the party is willing to abide by the rules when they do not jeopardize its stability and prominence, as shown in the handling of the Sun Zhigang case, and second, that democratization is unavoidable if Rule of Law is to be truly implemented. As Gunter Schubert puts it, is hardly imaginable that the development of a legal system can be sustained without the concurrent rise of interests groups that address the Rule of Law to fight for their political emancipation. [...]