[This is an article Wang Yongqing 汪永清, the Secretary General of the CCP Central Commission for Politics and Law 中共中央政法委员会, published on the first 2015 issue of Seeking Truth 求是. The original was translated in cooperation with Rogier Creemers and Jeremy Daum].
The question of the path relates to the whole picture and decides its success or failure. The ‘CCP Central Committee Decision concerning Some Major Questions in Comprehensively Moving Forwards Ruling the Country According to the Law’ (hereafter simply named “Decision”) passed at the 4th Plenum of the 18th Party Congress, has clearly declared to the country and the world that we will unwaveringly march along the path of Socialist rule of law with Chinese characteristics. General Secretary Xi Jinping pointed out: ‘The path of Socialist rule of law with Chinese characteristics is the concentrated embodiment of the achievements and experiences of Socialist rule of law construction, and is the only correct path to build a Socialist rule of law country. In the historical process of realizing the great rejuvenation of the Chinese nation, we must rigorously enforce the rule of law, unwaveringly march along the path of Socialist rule of law with Chinese characteristics, and at the same time, we must creatively use the common laws of human rule of law civilization developments in the magnificent practice of our country’s Socialist rule of law country construction, in order to create an even higher-level rule of law civilization. In studying and implementing the spirit of the 4th Plenum of the 18th Party Congress, the most important matter is that we must strengthen our self-confidence and maintain our concentration in persisting in and expanding the path of Socialist rule of law with Chinese characteristics.
The core essence of the path of Socialist rule of law with Chinese characteristics is persisting in the leadership of the Chinese Communist Party, persisting in the Socialist system with Chinese characteristics and implementing the theory of Socialist rule of law with Chinese characteristics. The Party’s leadership is the most fundamental trait of Socialist with Chinese characteristics, and the most basic guarantee for Socialist rule of law; the Socialist system with Chinese characteristics is the basic institutional basis for a Socialist rule of law system with Chinese characteristics, and it the basic institutional guarantee for comprehensively moving ruling the country according to the law forward; the theory of Socialist rule of law system with Chinese characteristics is the theoretical guidance and academic pillar for the Socialist rule of law system with Chinese characteristics, and the guideline for action in comprehensively moving ruling the country according to the law forward. These three aspects determine and guarantee the institutional properties and progressive orientation of constructing a Socialist rule of law system with Chinese characteristics and constructing a Socialist rule of law country.
Unwaveringly marching along the path of Socialist rule of law with Chinese characteristics has been decided by our country’s Socialist system. Legal systems and political systems are closely intertwined, whichever political system one has, a corresponding legal system must be put in practice. Unwaveringly marching along the path of Socialist rule of law with Chinese characteristics is a necessary requirement for persisting in and developing the Socialist system with Chinese characteristics, and the concrete embodiment of the Socialist path with Chinese characteristics in the area of rule of law construction.
Unwaveringly marching along the path of Socialist Rule of law is decided based on fundamental national conditions. Due to historical, cultural and other differences, no other nation’s path is entirely the same. In countries where the rule of law has been achieved relatively well, they have without exception innovated to integrate their national conditions and legal provisions. The path of Socialist rule of law with Chinese characteristics is rooted in the basic national condition that our country is in the primary stage of Socialism, it sprouts from the concrete practice of our country’s reform, opening up and Socialist modernization construction, and is a rule of law path with Chinese characteristics, practical characteristics and the characteristics of the time, which is rich in national characteristics, is open and inclusive.
Unwaveringly marching along the path of Socialist rule of law with Chinese characteristics is the fundamental conclusion our Party has arrived at by profoundly summarizing the lesson [drawn] from the experience of constructing a Socialist rule of law. During the initial stage of the foundation of a New China, our Party enthusiastically used the successful experience of constructing a legal system in base areas during the period of the New Democratic Revolution, to speed up the construction of a Socialist rule of law, and lay the initial foundation of a Socialist rule of law. Later, ‘leftist’ mistakes occurred in the guiding ideology of the Party, and the construction of our State’s legal system underwent a derout, particularly during the ten years of internal desorder of the ‘Cultural Revolution’, the Socialist legal system suffered a serious damage, and paid a heavy price. 党的十一届三中全会以来，我们党把依法治国确定为党领导人民治理国家的基本方略，把依法执政确定为党治国理政的基本方式，开辟了中国特色社会主义法治道路。
Upholding and expanding the path to the Socialist rule of law with Chinese characteristics is a process of in-depth exploration and uninterrupted practice, but its basics are that [one must be] persistent over the long-term persistence and must not sway. Swaying leads to losing direction, losing the definying features, going astray down the road. To study and implement the spirit of the 4th Plenary Session of the 18th Party Congress, unswervingly walk along the path of the Socialist rule of law with Chinese characteristics, the “Five Upholds” must be achieved.
Uphold the leadership of the Chinese Communist Party. The relationship between the Party and the rule of law is the core issue in the construction of a rule of law. Our Constitution has instituted the leading status of the Chinese Communist Party, which is the choice of history, the choice of the People. Upholding Party leadership is the fundamental requirements of the Socialist rule of law, and the proper meaning of comprehensively carrying forward ruling the country in accordance with the law. Party leadership is identical with Socialist rule of law. On one hand, Socialist rule of law must uphold Party leadership. Only under Party leadership the rule of law can rigorously be enforced, [the principle that] the People are the masters of their own affairs can fully be realized, and the life of the State and of society according to the rule of law can orderly advance. Only under Party leadership constitutional law can better mirror the will of the People, be in line with objective laws, solve practical problems. At the same time, only if the Party itself acts within the scope of the Constitution and the law, and Party members and cadres take the lead in managing affairs according to the law, implementation of the Constitution and the law can be realistically guaranteed. On the other hand, Party leadership must rely on the Socialist rule of law. If our Party must guarantee the unity of the nation, the unity of the legal system, the unity of government directives, the unity of the market, realize economic development, political purity, cultural prosperity, social justice, a good natural environment, we must uphold the criterion of the law, use the method of the rule of law to better develop the rule of law’s leading and standardizing functions. Only by relying on the Socialist rule of law the positions of the Party will become the will of the State through legal procedure, providing the guarantee of the rule of law to consolidate the Party’s ruling position, the country’s prosperity and development, and its long-term peace and stability.
Upholding Party leadership is not an empty slogan – it must be concretely reflected in the Party’s leadership over law-making, guarantee of law enforcement, support of the judiciary, exemplary [role in] abiding by the law. Through 65 years of explorations of the practice of governing the country, our Party has found an effective method whereby the Party leads the rule of law. These are the ‘Three Unifications’ and the ‘Four Being Good At’: unifying the basic strategy of ruling the country in accordance to the law with the basic methods of exercizing state power according to the law. Unifying the Party’s full responsibility for the overall situation and coordination of all parties with the People’s Congress, Government, Consultative Conference, adjudication organs, prosecutoral organs’ performance of their work and their functions and powers in accordance with the law and regulations. Unifying the Party’s leadership of the People in formulating and implementing the Constitution and the law with the Party’s acting within the scope of the Constitution and the law. Being good at making the positions of the Party become the will of the State through legal procedures, being good at making candidates recommended by Party organizations become leading personnel of organs of the state power through legal procedures, being good at implementing the Party’s leadership over the country and society through the organs of the state power, being good at using the principle of democratic centralism to protect the authority of the centre, and to protect the unity of the entire party and the entire nation. The ‘Three Unifications’ and the ‘Fouth Being Good At’ are full of political wisdom, rule of law thought, and correspond to the regularities of the rule of law, and the reality of China. Only by carrying out these requirements it will be possible to achieve an organic unity among Party leadership, the People being masters of their own affairs, and the rule of law.
To advance upholding Party leadership while advancing the rule of law, since it is required that the Party governs the country in accordance with the Constitution and the law, it is also reuired that the Party manages and governs the Party in accordance with Party legislation. In 1978 Comrade Deng Xiaoping pointed out how: ‘The State must have the law of the state, and the Party must have the law of the Party’. The Party Charter is the most fundamental law of the Party. Without Party laws and regulations, state law would be difficult to guarantee. The ‘Decision’ points out how Party law and Party discipline are stricter than State legislation. Here, ‘strict’ does not indicate that Party law and Party discipline are more severe than punishment under state law, nor does it indicate that the legal force of Party law and Party discipline is higher than [the legal force of] State law, but it indicates how its standards and demands are stricter. Citizens have the duty to abide by the law but members of the Communist Party, besides the duty to abide by the law, must also observe Party law and Party discipline, and undertake the dual duties to observe Party law and Party discipline, and abide by the stipulations of State law. Our Party is the ruling Party, and the entire power of the state is held within the hands of Party members and cadres. Using Party law and Party discipline to regulate and limit the power in the hands of Party members and cadres, in reality is using the law to limit power while at the same time adding a further limitation, which will help in better making power enter the cage of institution[alization]. In this sense, Party law and Party discipline are the major foundations of managing the Party and governing the Party, but they are also a powerful guarantee for the construction of a Socialist rule of law state.
Uphold the dominant role of the People. The ‘Decision’ points out: ‘the People is the subject and the source of strength of the rule of law’. Our country’s socialist system has ensured a dominant role of the People as masters of their own affairs, at the same time ensuring the People’s dominant role in comprehensively advancing the rule of law. This is the superiority of our system, and it is also the basic locus that differentiates Socialist rule of law with Chinese characteristics from other countries’ rule of law.
Upholding the dominant role of the People means that the interest of the People must be realized, the will of the People must be reflected, the rights and interests of the People must be protected, the welfare of the People must be promoted in the entire process of the rule of law, to make construction of the rule of law truly be for the People, rely on the People, benefit the People, protect the People. In our country the People is not a passive recipient of the law, it is rather [the entity that] formulates the law, that implements it, it is the master of the law. Law-making, enforcement and adjudication must, by taking the safeguard of the People’s basic rights and interests as their point of departure and their final stop, guarantee that the People enjoys an extensive range of rights and duties according to the law, undertakes necessary obligations, protect social fairness and justice, promote common prosperity. Guarantee that the People, under leadership by the Party, manage affairs of the state according to provisions of law, through various channels and forms; manage economic and cultural affairs; manage social affairs. At the same time, it is necessary to make the People aware that the law is both a powerful weapon to protect their rights and a norm of conduct that must be respected; increase the entire society’s awareness of studying the law, respecting the law, abiding by the law, using the law, so that the law is mastered, respected and used for the entire People.
Uphold equality before the law. “High and low, noble and base all must follow the law”. “No distinction between those who are close and those who are distant, no differentiation between noble and base, all depend on the law”, such are the principles of the ancient and modern rule of law. Equality is the basic property of Socialist law, is the basic demand of the Socialist rule of law.
Upholding equality before the law is an important principle confirmed by our country’s Constitution, it is the intrinsic demand of maintaining fairness and justice. Realizing social justice is a constant proposition of our Party. The rule of law is the most important mean and the most effective manner to maintain social fairness and justice. Rule of law not only demands a perfect system of legal norms, a highly effective system to implement the rule of law, a tight system of oversight on the rule of law, a strong system of guarantees of the rule of law. Even more, it demands that fairness and justice are maintained and realized at the stages of law-making, enforcement and adjudication. The common people say that ‘the cup of water must be held leveled’ and if it is not leveled, as time passes, the People’s masses will lose faith in the rule of law. The ‘Decision’ points out how each organization and individual must respect the authority of the Constitution and the law, they all must act within the scope of the Constitution and the law, they all must exercise their authority or rights, perform their functions and duties according to the Constitution and the law, and they must not enjoy privileges beyond the Constitution and the law. This is the complete interpretation of the meaning of equality before the law, and since it already gives prominence to the important point of limiting power, it also reiterates the principle of equality in abiding by the law.
The nature of upholding equality before the law is equality of rights and duties. In our country, all power belongs to the People and it is bestowed by a law that embodies the will of the People. This nature also determines that the exercise of power must take place in accordance with statutory limitations and procedures. The rule of law is ensuring that the use of power corresponds to the expectations of the People through the setting up of boundaries to the exercise of power, the institution of oversights on power, and the specification of the responsibilities which are relevant to power. At the moment, some Party members and cadres still have a rule of man ideology and a high official mentality, and believe that working according to the law poses too much red tape, ties one up hand and feet. They want to have a final say in everything, ignoring the existence of the law. If this phenomenon does not change, implementing the rule of law truly will be difficult. . To comprehensively advance the rule of law, is is necessary to grab the ‘crucial minority’ of leading cadres, and while focusing on standardizing and restraining power, increase the strength of supervision, and firmly correct behaviors whereby there is a law but the law is not followed, the law is not strictly enforced, and violations of the law are not prosecuted. Leading cadres and government officials at all administrative levels must all along have a heart of reverence for the law, keep in mind that the red line of the law must not be touched, and that the basic line of the law must not be crossed, that power must not be used outside the law, and even lees can words replace the law, can power suppress the law, can personal interest circumvent the law. It does not matter whom, and it does not matter who is involved, as long as the law has been violated, their responsibility shall be prosecuted according to the law, and “loops” in enforcement and adjudication will not be allowed.
Upholding a combination of ruling the country according to the law and ruling the country by virtue. The ‘Decision’ points out that ‘The governance of the country and of society requires the simultaneous use of the law and morality’. The law is written morality, which bears social value ideals and their common pursuit. Ethidcs are an internal law which guard the conscience of the human race and the value of self-discipline. A law without ethics will hardly be a good law, and ethics that are not put into effect by the law will hardly become a good governing. Both the law and ethics regulate social conduct, and maintain social order. If history is surveyed, ‘li and fa rule, virtue is central, punishments are ancillary’ , is the quintessence of governing the country in ancient times. The path of combining ruling the country according to the law and ruling the country by virtue has been created by China. Ruling the country according to the law and ruling the country by virtue have their distinctive characteristics in the governance of the state and society; their use cannot be replaced. The law adjusts behavior, while morality adjusts the heart and only by a tight combination of the two, by their complementing each other, can the state be governed in an orderly way and society can function healthily.
On one hand, rule of law must embody ethical concepts, and the law’s function of promoting the construction of ethics must be strengthened. Noble moral actions of man must be promoted and rewarded through the guiding, evaluative, educational, predictive and punitive functions the law has on human behavior. The use of the law in solving prominent problems in the moral field shall be brought into play, increasing the strength of punishment of such conducts as not helping those in danger, seeing profit and forgetting morality, manufacturing counterfeit goods and selling fakes will lead persons to consciously fulfill their legal duties, their social responsibilities and family responsibilities. The construction of social trust must be strengthened, a mechanism of citizens and organizations’ credit history of abiding by the law must be improved, a mechanism whereby sincere abidance by the law is rewarded and illegal and dishonest conducts are disciplined shall be perfected. Law must be used to ensure the governments’ credibility, social trust, commercial integrity and public faith in the judiciary.
On the other hand, the spirit of the rule of law must be nourished by morality, and the supporting role of morality towards a rule of law civilization must be strengthened. The value orientation of the law must cohere with the value orientation of morality. Only in this way the law will be endorsed by the public, and the law’s requirements can be internalized as a conscious behavior of man. Socialism’s core system of values must be energetically promoted; China’s traditional virtues must be promoted; social morality, professional morality, family morality, individual moral character must be cultivated. Moral factors and moral risks must be given ample consideration whenever the law is to be drafted or amended, and laws that pose immoral demands must be repealed or amended, to ensure that the Socialist legal system with Chinese characteristics will manifest its moral value and moral force even more. The value orientation embodied by legal norms must be correctly understood, and it must be ensure that enforcement of the law does not violate legislative intent, and does not deviate from [the law’s] moral orientation.
What needs to be explained is that upholding a combination of ruling the country according to the law and ruling the country by virtue does not mean that the two can be juxtaposed or that their place is identical but, it emphasizes that morality’s role in comprehensively advancing the rule of law is better used on the basis of the fundamental strategy of ruling the country according to the law.
Proceed from the realities in China. In the final analysis, the choice of which rule of law path to walk and which rule of law system to build up is determined by a country’s basic national conditions. China has historical and cultural traditions, an endowment in natural resources, a unique developmental stage, a system of habits and customs and modes of thought different from those of other countries. To comprehensively advance ruling the country according to the law one must proceed from these realities, and if national circumstances cannot be ignored and stages [of development] cannot be skipped, neither can we keep a diehard conservative attitude or be bound by conventions.
Upholding proceeding from the reality means projecting the characteristics of China, the characteristics of practice, the characteristics of the time. In order to provide ideological guidance and theoretical support to the rule of law, we must summarize and use the successful experience of the Party leading the People in implementing the rule of law, focus on the great theoretical and practical issues of the Socialist rule of law, uninterruptedly enrich and develop Socialist rule of law theories in line with the reality of China, that possess Chinese characteristics, that embody the developmental rules of social development.
In the Spring and Autumns and Warrying States periods our country had a self-contained system of written legal codes, and the Qin dynasty introduced a nationally unified legislation. The Han code started to combine li and fa, and the Tang code was the highest representative of the world’s legal code in the feudal period. A Chinese legal system, which was formed on its basis, flew its banner on a solitary tree among the world’s great legal systems. We must study the successes and failures of our country’s ancient legal systems, unearth the spirit of China’s legal culture and pass it on to future generations, draw our nourishment, seek what is good in it and use it. During the Yan’an era, comrades Mao Zedong and Xie Juezai while discussing the Constitution of the border area said: as for the Constitution we must invite comrades from border areas to do more research, to raise more opinions, [the Constitution must] be a thing of the border areas. Only the water which comes out from a spring is useful, the water which is splashed is not useful. To force of outsider comrades to stir the waters is necessary, but must wait until the water has sprung out. This shows the profound argument that the construction of the rule of law must proceed from reality, and take its own path.
Of course, persisting in proceeding from the nation’s realities is not the same as closing doors while making rule of law. The rule of law is one of the important achievements of the human race, the essence of the rule of law has universal significance for the state and the social governance of every country, and we must study and borrow the achievements of the world’s best rule of law civilizations. However, studying and borrowing does not mean simply taking. We must adhere to ourselves being the masters, using [law] for ourselves, identify carefully and receive reasonably. We must not copy word-for-word, we must not use other states’ rule of law models and rule of law standards to measure the success or failure of rule of law in our country.
Comprehensively promoting the rule of law is an extensive and profound revolution, and on the path ahead we will encounter this kind of risks and challenges. As long as we unswervingly take the road of Socialist rule of law with Chinese characteristics, without fearing any risk, without being confused by any interference, we will be able to construct a rule of law China and achieve the China Dream of a great rejuvenation of the Chinese nation.