Structural preconditions for the rise of the rule of law in China

Martin K. Dimitrov

Journal of Chinese Governance, 2016, vol. 1, issue 3, 470-487

Abstract: This essay advocates for adopting a disaggregated approach when evaluating the progress that non-democratic countries like China are making towards establishing the rule of law. An understanding that the rule of law may develop in some areas, though not in others, allows us to identify the structural underpinnings of a limited rule-of-law system. The essay adopts a procedural definition of the rule of law as rules-based governance and argues that the regularized enforcement of laws and regulations is the key precondition for its emergence. This study defines regularized enforcement as consistent, transparent, and procedurally fair enforcement and identifies the conditions under which such enforcement may emerge. Although bureaucracies with clear mandates can provide this type of enforcement, it is more likely to develop when courts of law arise as the main enforcers of laws and regulations. The theoretical argument about the issue-specific rule of law in China is illustrated through three case studies. The first is of government accountability, where progress towards the rule of law has been minimal. The second is of intellectual property rights, where regularized enforcement has unexpectedly developed, especially for patents and copyrights. The third area is environmental protection, which is explicitly following the model of intellectual property rights. The essay concludes by arguing that an issue-specific approach allows us to grasp more fully the variation in good governance and progress towards establishing the rule of law that exists on the ground in China.

Date: 2016
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DOI: 10.1080/23812346.2016.1213029

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