PARAMETERS FOR DISCUSSION: THE RULE OF LAW

In setting out a reference point to ground the discussion of rule of law in China, it is useful first to be explicit about the idea of rule of law in mind. The rapporteur is influenced by Martin Krygier's teleological approach which asks one to start with a question of what rule of law is intended to achieve. For him, tempering power (rather than simply restricting power) and ‘helping to ensure that it is routinely unavailable for arbitrary exercise’ is the key aim of rule of law. Krygier proposes that one should not start with a checklist of attributes of rule of law, be it substantive or procedural versions of rule of law as exemplified by the attributes prescribed by Fuller for the inner morality of law, though as he says ‘we might come to such things’.

This report, while bearing in mind the overall aims of rule of law as tempering power, will come to a consideration of the ways the Chinese version of rule of law engages with the principles of legality articulated by Lon Fuller. This will enable a more fine-grained evaluation of the changing concept of rule of law in China and the way the legal system functions. This analysis is done with reference to Fuller's prescription that law must be general in that it refers to classes of people and circumstances and not individuals, public, clear, non-contradictory, possible to obey, relatively constant, prospective, congruent between official action and the declared rule.