The Rule of Law - Essay Example

Jooyoung Kim WRIT122 Manning 2 06 The Rule of Law In the dialogue between China and the West, the Oriental country had been opposed for a long time to the concept of the Rule of Law in favor of the Rule by Law. China’s leaders used to considered that the Rule of Law goes against the class struggles in society so they favored a different concept of Rule by Law instead of Rule of Law. There has been a long debate about the Rule of Law in many countries besides China. Many people argue that the Rule of Law is just political rhetoric, so there is no need to talk about it in our society. Many people are also confused on what the Rule of Law really means. The Wikipedia gives its own definition of the Rule of Law according with the following ideas: “The rule of law implies that government authority may only be exercised in accordance with written laws, which were adopted through an established procedure. The principle is intended to be a safeguard against arbitrary rulings in individual cases. Thus, those who make and enforce the law are themselves bound to adhere to it.” (Wikipedia, 2006). This last point is very important in order to understand the significance of the Rule of Law. The lawmakers have to obey the law. That point is the main characteristic of the Rule of Law, because there are some countries in which the government officials behave as if they shouldn’t obey the law. In undemocratic societies the people from the government are above the law. That is a very serious situation. That is why they don’t have democracy and many times that is why they are underdeveloped countries. Later on we will take a look at some examples in the case of China regarding this topic. During the last decades a lot of money has been spent trying to apply the Rule of Law in countries with undemocratic societies and in underdeveloped countries. The People’s Republic of China is one of those countries. As we can see, the Rule of Law is a very conflictive topic for a lot of people in our present society. We really think that the Rule of Law is very important in order to establish democracy and development in any country. But first let’s see what the Rule of Law is. Tom Glass defines the Rule of Law according to the following concepts: “Government decisions are made according to written law and rules; Government sanctions cannot be made up after the fact (ex post facto); Rules are applied as much as possible consistently to all; Courts provide citizens consistent, written process (due process) before life, liberty, or property is taken; Courts provide reasons based upon the law for their decisions.” (Glass, 2005). Chinese people couldn’t get the ideas behind these points due to the fact of their Confucian background in which there was a heavy dependence upon the clan or the group. As the UN China puts it: “Under the philosophy that the government represents the people, internal government procedures regulated conflicts between the government and the individual, not laws.” (UN China, 2001). There was a rule of man, rather than a rule of law until recently when Chinese leaders have recognize the rule of law as necessary for the establishment of a democratic society. The Rule of Law is extremely important as a pre-requisite for democracy and development in any country. In a society with a solid Rule of Law we can trust the government officials and everybody feels secure in such an environment where the Law rules. People who opposed the Rule of Law like China’s leaders were in favor of the Rule by Law, or in other words, the Rule by Power, or the Rule of Power. For example, general elections are held commonly in China, but only in rural areas, not on a nation-wide level, just on the village level. For example, free expression, association and assembly are constitutional rights, but administration on a real level is often governed taking into account aspects of control rather than the requirement to maintain the constitutional rights in the first place. For example, “the Criminal Procedure Law was revised in 1996 to state that "no person shall be found guilty without being judged as such by a peoples court according to law", but old practices, which did not clearly separate the functions of the judge, the procurator and the defence counsel, and giving the judge an independent and impartial status, are hampering the implementation of these new procedures” (UN China, 2001). The importance of the Rule of Law for establishing democracy and for the operation of the free markets is very significant, and it is quite relevant in our present times of globalization in our fight against terrorism. Diversity and tolerance are needed in a global society, and it happens the same with the Rule of Law. If there is no Rule of Law, then there is Rule of Power or Rule by Power. This is what we try to avoid when we speak of implementing the Rule of Law in order to have a better democracy and a higher degree of development. China’s leaders had a different point of view until recently as we can see in the Wikipedia: “In the Anglo-American legal tradition rule of law has been seen as a guard against despotism and as enforcing limitations on the power of the government. In the Peoples Republic of China the discourse around rule of law centers on the notion that laws ultimately enhance the power of the state and the nation, which is why the Chinese government adopts the principle of rule by law rather than rule of law.” (Wikipedia, 2006). That was Chinese position until China’s leaders made the commitment of adopting the Rule of Law at the end of the 1990s as Eric W. Orts stated: “The current generation of Chinese rulers has promoted “the rule of law” to the extent of adopting a constitutional amendment in 1999 to enshrine the principle.[5] President Jiang Zemin now proclaims that the Chinese Communist Party is fully committed to “govern the country according to law”. (Orts, 2001). China’s leaders were used to taking a different approach to this dilemma, but in the West the Rule of Law is considered necessary for democracy as it is stated in the Wikipedia: “However, the "rule of law" is considered a pre-requisite for democracy, and as such, has served as a common basis for human rights discourse between countries such as the Peoples Republic of China and the West.” (Wikipedia, 2006). Brian Z. Tamanaha studied this topic in great detail in a famous paper entitled “The Rule of Law for Everyone?”. With clear words Tamanaha emphasizes the importance of the Rule of Law even though some people don’t agree with what the Rule of Law really means in their specific contexts. Tamanaha stated the following in his paper: “Agreement thus exists on all sides that governments should be adjudged by their adherence to the rule of law. No one says that the rule of law is an elixir for all ails. But many apparently believe that it is a fundamental component of any successful recipe for political and economic stability and progress, as well as a standard by which to evaluate government legitimacy”. (Tamanaha, 2003, p. 5). This is the main reason behind the acceptance of the Rule of Law by China as the new scenario will enable Chinese society to be part of the international community. That way China will integrate itself to the United Nations and especially to the World Trade Organization. Accepting the Rule of Law by China and all the necessary reforms that the new process will bring about is the first step to democracy and progress on a higher level in China. It is true that the term “Rule of Law” is confusing for some people because they interpret the term in many different ways, but it is also true that the Rule of Law is necessary for political stability and social progress. No one should be above the Law. That is the main idea behind the Rule of Law, and it is a very good ideal to have the Rule of Law implemented in any society. We think that our efforts should be directed toward applying the Rule of Law in each and every society so that a true democracy can prosper efficiently. With a true democracy all the citizens will feel respected and economic development can be a reality, especially in the underdeveloped countries. Many investors will feel confident when they invest in a country where there is a true Rule of Law implemented. Everybody will benefit from the Rule of Law. There is no doubt about it. The problem seems to be how to apply it in different societies, because there are many influential people in the governments against it. Belton solution of dealing with the Rule of Law as a system is a very good solution. We have to continue arguing in favor of the Rule of Law as it is beneficial for everybody in a democratic and developed society. China has taken the first step towards implementing the Rule of Law. The road to this goal is not easy. There are many traditions that get in the way. People always resist any change in society. Yun Zhou states it clearly with the following words: “The question is how to implement the rule of law in Chinas current social and political environment. We must understand, however, that to expect a culture of several thousand years to adapt to a drastically different system within a few decades is all but a naïve -- although enthusiastic and patriotic -- dream.” (Zhou, 2001). We have to be realistic when dealing with the Rule of Law in China as this process will need many reforms in the government and society as well. Individuals have to see Law from a different point of view, not at belonging to the government, but as a common property of all the citizens of China. Works Cited Glass, Tom. “Toward Liberty and Justice for All”. (9 January, 2005). 22 January, 2006. . Orts, Eric W. “The Rule of Law in China”. (2001). Vanderbilt University. Law School. 10 Feb. 2006. . Tamanaha, Brian Z. “The Rule of Law for Everyone?” 28 February, 2003. St. Johns University. School of Law. Social Science Research Network (SSRN). 21 January, 2006. . UN China. “The Rule of Law in All Aspects of Chinas Changing Society”. United Nations-China. (12 December, 2001). 10 Feb. 2006. . Wikipedia. “Rule of Law” Wikipedia January 28, 2006. 22 January, 2006. . Zhou, Yun. “Towards the Rule of Law in Contemporary China: An Educational Approach”. (31 August, 2001). In Perspectives. Volume 3, No. 1. Overseas Young Chinese Forum. 10 Feb. 2006. . Read More