‘Rule of Law’ in China: The Confrontation of Formal Law with Cultural Norms

This Article will be one of the first to fully examine the adoption of the first part of China’s long-term quest to enact a grand civil code. It is primarily an examination of the interaction between law and culture— this interaction is most visible when law is transplanted from one legal tradition (Western) into a country of a different legal tradition (Eastern). The General Rules of the Civil Law of the People’s Republic of China took effect on October 1, 2017. This enactment of general principles is the first step in what is expected to take up to five years to create a European-style civil code. There are multiple, interlocking themes to this Article. First it focuses on the general principles of contract law, comparing the current Chinese Contract Law of 1999 with the General Rules of 2017. This analysis of general principles is not merely confined to contract law but reflects the values and goals of Chinese society. A second theme explores the effectiveness and inherent problems of legal transplantation from one legal system to another. China is a unique example given the great mass of laws adopted in its transition to a socialist-market economy. The review of general principles and analysis of the effectiveness of China’s transplantation of Western-style laws provides the basis for examination of the status of the “rule of law” in present day China. The rule of law is generally associated with public law, such as criminal and constitutional law, and concepts such as due process. This Article demonstrates the importance of the rule of law in the more mundane area of private law, in this case, the law of contracts. The examination of the rule of law in Chinese private law also has different dimensions. First, the Article examines the pivotal role that Chinese cultural norms— Confucian and socialist principles— has had in diminishing the rule of law in China. Second, the continued influence of government agencies and the low quality of the Chinese judiciary has also held back the implementation of a rule of law system in the private law realm. The Article concludes with the use of a hard-soft law paradigm to best understand the interaction of formal law and cultural norms in modern China