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Heretical Laments: China and the Fallacies of 'Rule of Law'

Columbia University School of Law, New York

While the general consensus is that there is no real rule of law in China, we actually have a great deal of difficulty explaining why. This article seeks to show that none of the arguments commonly advanced as to why there is no rule of law in China are particularly compelling. Some critiques claim that China's rule-of-law insufficiencies are due to deficiencies in her conceptualization of law. But these critiques either depend on false conflations of how individual and collective values work, or on very controversial claims about western conceptions of law, or otherwise identify distinctions that have no real bearing on the development of China's legal system. Other critiques argue that China's failure to achieve or enjoy rule of law is due to particular deficiencies in her legal system. But the structural features upon which these critiques focus seem inappropriate for a country in China's present stage of development. One thinks, all in all, that rule-of-law theorists simply expect too much from law. The question we should be asking is not 'is there rule of law in China?', but rather 'should there be rule of law in China as we currently conceive of that concept?' At least for the present state of China's development, the answer is quite possibly no.

Key Words: China • conceptions of law • law and society • legal development • rule of law

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