China's Legal System and the Fourth Plenum

11 Pages Posted: 8 Aug 2015

See all articles by Donald C. Clarke

Donald C. Clarke

George Washington University Law School

Date Written: 2015

Abstract

The Chinese Communist Party (CCP) Central Committee’s Fourth Plenum, held in October 2014, was its first meeting specifically devoted to the legal system, and as such attracted much from those interested in Chinese law. But the official Decision of the Fourth Plenum does not represent a conversion to the ideology of rule of law. Even if the leadership were to desire the system of accountability and institutionalized restraint on government that is generally understood by the term “rule of law,” it could not be accomplished any time soon and would require changes in entrenched features of the current political and administrative system. In any case, the Decision contemplates no fundamental reform in the relationship between the legal system and the CCP. It is clear that, institutionally speaking, the party will remain above the law.

But what about rule by law — a system of largely predictable and rule-governed behavior by lower-level government administrators, even if those giving the orders are not ultimately accountable or constrained? This essay argues that the Fourth Plenum Decision does contemplate some genuinely meaningful (and in my opinion positive) reforms, and thus represents modest progress toward that goal. It concludes with a discussion of an important reform that was not made: a reform in the system under which local officials administer rules but do not make them. This system inevitably results in the highly discretionary application of rules, and makes it difficult — perhaps impossible — to develop truly rule-based government.

Keywords: China, Chinese law, Communist Party, CCP, Fourth Plenum, rule of law, rule by law

JEL Classification: K10, K40

Suggested Citation

Clarke, Donald C., China's Legal System and the Fourth Plenum (2015). Asia Policy, No. 20 (July 2015), pp. 10-16; GWU Law School Public Law Research Paper No. 2015-27; GWU Legal Studies Research Paper No. 2015-27. Available at SSRN: https://ssrn.com/abstract=2631042

Donald C. Clarke (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-2830 (Phone)
202-318-4479 (Fax)

HOME PAGE: http://docs.law.gwu.edu/facweb/dclarke/

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