Chinese Policymakers Turn to the Lawyers

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Almost all Chinese law of any significance is drafted in a way that not only leaves room for interpretation at the margins, but also has scope to push the practical effect of the central provisions one way or another according to what force you give to different bits of it," said a partner at an international law firm in China who asked not to be named.

While significant as a piece of legislation, the perceived loopholes in the antitrust law have left people wondering whether it will actually deliver the level playing field it promises. Concerns are most readily expressed by overseas investors who fear that provisions allowing for national security reviews of foreign acquisitions will be used to shut them out of the market.

WHO'S FREEDOMS?
The idea of a law being used to engineer a predetermined outcome appears to undermine the notion that China's new set of commercial legislation is a response to the demands of an increasingly autonomous and economically free society. Do these laws equip the private individual with any new protection at all?

Valentine's answer is an unequivocal no. People may have more freedoms, he argues, but these are still state-prescribed. The major purpose of these new laws, he says is merely to entrench the current system and "give the government a concrete basis for continuing to do what it has done in the past."

Or, as Jacques deLisle, a professor of law at the University of Pennsylvania who specializes in contemporary law and politics in China, puts it: "The laws give rights to those who hold political power and create opportunities for them to accumulate wealth."

With this in mind, it's not unreasonable to ask how a legally trained leadership would be any different to a technocrat one - especially when the legally trained leaders have never actually practiced law. Ultimately, government edict will always trump rule of law no matter who is sitting at the head of the table.

But the rise of lawyers through party ranks is in itself an indication of the changes taking place in China.

"The issues of the law are only partly related to the rise of lawyers but more to do with the realization that these laws are important to the country," said Li Cheng. "The technocrat leadership was introduced to the country by Deng Xiaoping but he wasn't a technocrat. Hu is no lawyer but he has introduced legal reforms."

There is a hope that the "fifth generation" of leaders will bring with them a sense that rules matter. Li Xiaoming believes this could create a trickle-down effect and reinforce the notion of respecting the law in Chinese society.

"You have to make people feel like the law really matters - that you get punished if you don't comply and rewarded if you do," he said. "Take intellectual property laws: The Chinese attitude towards IP protection is changing as more Chinese themselves are victims of IP theft. They have to be on the other side of the table to appreciate the value of the law."

A CIVIL SOCIETY
Li feels the best way to facilitate this is through the creation of a civil code, which would unite the different elements of the law - property rights, labor contracts and so on - under a single banner.

"A civil code will draw people's thinking away from the vicissitudes of government directives. It will have a strong psychological impact on society," he said.

"Law is a double-edged sword - it promotes rule in a country but also poses limits. With a [civil] law of this complexity, when the government talks about how it will do things, it cannot fail to look at it."

Li and others are generally positive about the direction in which China's legal system is moving. They appreciate that it is unfair to draw comparisons between the centuries-old legislative apparatus of the West and a system with less than 30 years under its belt. Yet there is no denying that China still has a long way to go.