Emma Schulte, Research Assistant at the University of Groningen and Editor of the Groningen Journal of European Law
‘We cannot invent universality as fully realized and present but must discover it in the internal limit that every society confronts’ — Todd McGowan, Universality and Identity Politics
The internationalisation of the rule of law – particularly its western-centric content – often causes a rift in the international dialogue regarding its application and promotion. This post reflects on the universalism of the rule of law and proposes a new approach to its effective internationalisation. The strategy it proposes is a transnational rule of law framework which, as opposed to exportation strategies, is more effective at promoting the rule of law on a global level. This post lays the groundwork of the meaning of ‘transnational rule of law’ and its proposed framework, before briefly applying this to Chinese law.
What is the Rule of Law?
The first part of the puzzle, and as is almost customary for anything written on theoretical rule of law approaches, is to define the rule of law (for some creative approaches, see here, here and here). Being an essentially contested concept, there is no clear definition of its meaning. In contemporary western jurisprudence, ideas often range from formal to substantive conceptions of the rule of law – from ‘thin’ to ‘thick’, as it’s also commonly put. Proponents of a formal formulation, including Dicey and Fuller, focus on the regulation of authority through legislative traits including clarity, generality, and consistency. Proponents of a substantive formulation, such as Dworkin, are not opposed to these traits but believe the rule of law should also include a concernment for individual rights.
Not only is its content debated, but the universality of the concept is likewise contested.
It is preferable to interpret the concept along the lines of a ‘Schrödinger’s’ rule of law: We cannot establish either a ‘thick’ or ‘thin’ sense of the concept, so rather than being a proponent for either, and spending our energy on disproving the other, we should accept the reality of both and act according to this – in other words, adopting a relativist approach.
What is the ‘Transnational’ Rule of Law?
The rule of law has different meanings when applied in a domestic and international sense. In the former, it regulates the behaviour of a state’s centralised power vis-a-vis its citizens; whereas the latter is understood as applying horizontally between states. In this understanding, both spheres are self-containing and do not contaminate or impact each other. However, there is a third sphere, or rather an overlap, between these two dimensions. Nollkaemper refers to this as the ‘internationalised’ rule of law, which he effectively describes as the reciprocal normative influence between the domestic and international sphere. While accepting Nollkaemper’s idea of an overlap being a third dimension, it seems preferable to use the term ‘transnational’ rule of law. This term, following Koh’s definition of transnational law, denotes an additional aspect to this overlap: namely, the direct emigration of norms between national legal orders. Borrowing Koh’s terminology, the transnational rule of law can thus be described as meaning the ‘uploading’, ‘downloading’ and ‘transplanting’ of rule of law norms between the domestic legal order and international legal order.
One of the challenges of a transnational rule of law is that its foundation is entirely built on western jurisprudence which is then exported to non-western regimes. This dominance of western norms causes two issues. Firstly, it disregards fundamental non-western legal concepts. Because of the universalist approach that is often taken in scholarship (see for example, here and here), it is common to view other legal systems by their relationship to western concepts. While it is true that even western formulations of the rule of law have successfully diffused into non-western states (an example of transplantation, often the result of student migration and donor programmes), it is simultaneously true that this perverts the reality of these legal orders. Not every non-western norm has a western counterpart and viewing these concepts through this lens hinders the effective ‘upload’ of these norms to the international sphere: domestic norms that reflect western standards are uploaded, while norms that feel foreign are excluded. This leads to the second issue, the hindered ‘upload’ makes international rule of law legislation largely redundant, and unpopular, in regimes whose people would benefit most from a strengthened rule of law, such as China.
Referring back to Nollkaemper, he suggests that utilising the reciprocity between the domestic and international legal sphere will make rule of law promotion more effective. Particularly, that a domestic legal order’s receptiveness to international law is an indicator of how effective promotion can be. Nollkaemper is right in this aspect, however, rather than focusing on an effective normative ‘download’ (which, again, is a focus on exportation), the focus should be on removing hindrances to the normative ‘upload’. This study therefore suggests the following framework:
- To facilitate the upload of norms, a greater inclusion of non-western legal orders is needed. Both scholarship and legislation should shift from basing solutions on sameness – thus, to shift away from universalism – and approach the issue from a normative relativist perspective. Just as there is no correct answer to formal versus substantive rule of law formulations, neither is there a correct answer between western norms versus non-western norms. The Goliath’s head in this aspect is the lack of diversity in research and exposure is the remedy. Developments such as the increasing interest in Third World Approaches to International Law and the active minimisation of academic gatekeeping are all important factors that can facilitate this shift, as they both lead to a greater inclusivity of non-western voices and ideas
- The second step is to tether norms of non-western regimes to ‘international norms’ or alter existing international norms to make room for these ideas. This way, inclusive norm building would replace the globalisation of a western agenda. This will facilitate dialogue between states and will allow for an easier ‘download’ of these inclusive international norms.
Critics may argue that this approach is too soft and paints a naive picture of international law. However, a similar framework to this has been successfully introduced in IHL; Al-Dawoody, refers to this method as a ‘transversal approach where both research and humanitarian actions are mutually informed by each other’, and involves studying local norms in order to transfer IHL norms. The difference between the method Al-Dawoody speaks of and the method of this study is that the former is based on universalism, while this notion is refuted in the latter. This is simply because, according to both Kant’s Perpetual Peace and Hobbes’s Leviathan, war touches upon a very innate primitive instinct, even if rules diverge across nations, there is not much room for discussion on what constitutes ‘war’; in stark contrast to the discussion on what constitutes the ‘rule of law’.
Applying the framework to China
To show how the proposed framework would work in practice, this section will briefly consider its application in China. Chinese law is a mixture of civil and socialist law, underpinned with a jurisprudence system that combines Chinese legalism (Fǎjiā) and Confucianism, or Ruism as it is also commonly known. (See Chen) The Chinese legal system is a great example of how trying to find ‘sameness’ in relation to western concepts creates a cacophony of theoretical issues, especially regarding the rule of law.
In 1999 the Communist Party of China (CPC), the country’s leading party for over a century, amended the constitution to include a provision on adherence to the rule of law (Article 5 of the Chinese Constitution). Of interest to western onlookers was the confusing translation of the ‘rule of law’. In Chinese, the term used was fazhi (法治); which can be interpreted as either meaning rule by law or rule of law. Since then, a multitude of scholars attempted to apply western standards to attempt to solve the puzzle of China’s rule of law. Wang suggests that Fuller’s formulation is an accurate description, with the key to shifting from ‘thin’ to ‘thick’ being compliance with the World Trade Organisation (WTO). While it is true that the CPC has used the rule of law mostly for economic purposes, and thus in theory would make for a powerful incentive; Wang then suggests only a reform of CPC would lead to compliance to the WTO, which makes his proposed solution unrealistic. On the other hand, there are also those who reject even the existence of a formal conception, citing issues with procedural justice and other western standards.
The methodology applied by these scholars often leads to circular discourse that even a relativist alone could not solve – the issue does not lie in which western conception is the truth, the issue lies in looking for truth in a western conception. Peerenboom, recognising this, argues that ‘the USA and other countries should seek to engage rather than contain China’. This particular viewing of Chinese norms in its relation to western standards is also known as ‘orientalism’. Approaching non-western legal concepts through a relational model based on western jurisprudence is not efficient. Instead, unbiasedly ‘uploading’ domestic norms, processing them at an international level, and then ‘downloading’ a corresponding framework based on ‘local analogy’, is the most effective way of approaching China’s seeming intransigency to its rule of law.
Understanding China’s legal traditions is the first step in understanding its perspective of the rule of law. As mentioned above, Chinese legalism and Ruism have great influence in China, and are often seen as conflicting. Chinese legalism, often regarded as being more influential in present China, is rooted in the idea that the supremacy of the law is a tool to ensure ‘the supremacy of the imperial authority’ – In contrast, Ruists believe true order is achieved through harmonic social relationships, cultivating ‘goodness’, and through the state prioritising the people.
The fact that legalists view law as an enabling tool for the ruler, and by analogy also the rule of law, may sound in contrast with liberal interpretations of the concept. However, it also simultaneously refutes the common western conception that China has a ‘CPC-problem, rather than a rule of law problem’. China’s tendency towards this form of rule is not simply the result of a rogue political faction. Top-bottom hierarchy is deeply intertwined with China’s legal philosophy, in the same way that democracy may be in western legal philosophy. This further illustrates why Wang’s solution of reforming CPC, as mentioned earlier, will not necessarily liberalise its rule of law.
This begs the following question: even if China’s rule of law is not comparable to western conceptions, is there a way to transfigure it on an international level to act as a funnel to alleviate China’s massive and deliberate infringements of fundamental rights? – In other words, can we find sufficient local analogy to ‘upload’ to the international plane, so that rule of law promotion and dialogue can be more effective? This could be achieved by utilising Ruism and its focus on morality and man, instead of rigid law. Particularly, by explicitly weaving both Ruist and Legalist norms into a transnational dialogue. While this path may not lead to a Chinese democracy, it will enable the formulation of realistic solutions, because the problem is approached from a Chinese perspective, rather than a western one.
This study has illustrated why a transnational rule of law framework that emphasises an ‘upload’ as much as a ‘download’, is an effective method of promoting the rule of law and gives us greater understanding of the rule of law in non-Western thought streams. As a last concluding remark, the diversification of transnational jurisprudence is not solely a task that rests on the shoulders of international actors and organisations; it first and foremost starts with diversifying the voices in legal scholarship. It is not that ‘western’ scholars are completely unaware of the legal thinking that exists outside of their own homes or faculties, the problem is rather the hindered access to diverse quality research due to ‘traditional’ publishers still upholding a regional (and gendered) veil — Thankfully the newer generation of academics and publishing outlets often have a greater awareness of this.