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Democratization versus Rule of Law

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  1. The concept of Rule of Law has a very powerful meaning beside people today in China
  2. The Rule of Law, only a transition
  3. Conclusion

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 Has the democratic ideal really been replaced by the day-to-day progress of Rule of Law?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?

[...] Furthermore, the Party has been thriving for more than a decade on the premise that Rule of Law is suitable to single-party rule, and that China is able to develop its own path towards modernization, no matter what it means. This was a way to reassert China's specificity in comparison with Occidental Countries, and a way of telling people that their problems could be resolved, laying the emphasis on rationality and efficiency. These changes can lead us to cast doubt on the real democracy forces in China, apart from a minority of students and pundits. [...]


[...] More worryingly, as Qianfan Zhang remarks, judges' salaries and the funds for court operations come mostly from the local government budgets and are subject to the threat of reduction whenever the court decisions adversely affects the local interest.? In these conditions, the application of Rule of Law seems to be difficult, both parts having a vested interest in not abiding by the rules. Finally, local protectionism completely weakens the ability of the judges to enforce a uniform law. Of course, the head of the CCP is not threatened by these abuses, because peasants and workers whose rights have been violated distinguish between local officials and higher officials: they ask the party to retaliate and repeal unacceptable measures such as the C&R measures. [...]


[...] 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? We will see that the concept of Rule of Law has a very powerful meaning beside people today in China, because it shifts the desire for change from the will to participate to the political order to the will of not having the state disrupting illegally one's private sphere yet, most scholars agree that the Rule of Law is only transitional, because it is intrinsically insufficient, and it is therefore shadowed by a lot of drawbacks in its application (II). [...]

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