The Chinese Communist Party (CCP) Central Committee’s Fourth Plenum, held in October 2014, was its first meeting specifically devoted to the legal system, and as such attracted much from those interested in Chinese law. But the official Decision of the Fourth Plenum does not represent a conversion to the ideology of rule of law. Even if the leadership were to desire the system of accountability and institutionalized restraint on government that is generally understood by the term “rule of law,” it could not be accomplished any time soon and would require changes in entrenched features of the current political and administrative system. In any case, the Decision contemplates no fundamental reform in the relationship between the legal system and the CCP. It is clear that, institutionally speaking, the party will remain above the law.
But what about rule by law—a system of largely predictable and rule-governed behavior by lower-level government administrators, even if those giving the orders are not ultimately accountable or constrained? This essay argues that the Fourth Plenum Decision does contemplate some genuinely meaningful (and in my opinion positive) reforms, and thus represents modest progress toward that goal. It concludes with a discussion of an important reform that was not made: a reform in the system under which local officials administer rules but do not make them. This system inevitably results in the highly discretionary application of rules, and makes it difficult—perhaps impossible—to develop truly rule-based government.
Clarke, Donald C., China's Legal System and the Fourth Plenum (2015). China’s Legal System and the Fourth Plenum,” Asia Policy, no. 20 (July 2015), pp. 10-16, available at http://www.nbr.org/publications/issue.aspx?id=319; GWU Law School Public Law Research Paper No. 2015-27; GWU Legal Studies Research Paper No. 2015-27. Available at SSRN: http://ssrn.com/abstract=2631042