In East Asia Forum, law professor Donald Clarke explains that to understand the current crackdown on expression and activism in China, one must understand that, “there was never any genuine governmental commitment to the rule of law”:
Since late February, there has been a wave of detentions and disappearances of lawyers, activists and others in China. Especially alarming to many is the government’s apparent disdain for even the modest requirements of its own laws. While some have been detained or arrested in accordance with procedures required under Chinese law, others have simply been picked up by security officials and disappeared. These detentions reflect a deep truth about the system that observers are often tempted to overlook: that China’s legal system has never been about the rule of law. It has been and remains about making government function more effectively.
Other views are of course possible. The ‘Disappointed Optimist,’ for example, sees China, despite repeated setbacks — the Cultural Revolution, the June 4th 1989 Massacre — as on a long-term track toward a recognisable form of rule of law. But In this view, the current crackdown means that China has reneged on its commitment to the rule of law and is moving backwards.
Then there is the ‘Realist Separationist.’ He holds that the system can be divided into two parts: the politically sensitive sphere, where restraints on government are admittedly gauzy at best, and a second sphere of non-sensitive areas such as commercial law, where the legal system has been advancing in great strides.
And then there is the ‘I-Told-You-So Cynic’, for whom any talk about the rule of law has always been a sham.
While different, all of these viewpoints have one thing in common: they start from a rule-of-law perspective. But the current crackdown is better understood by jettisoning that concept entirely. Let us stop asking whether and how far China is travelling along the road to the rule of law, understood here to mean a system of meaningful legal restraints on the powers of government. The reality is that this has never been the ambition of the current Chinese legal system.