Aconsensus is rapidly emerging within China that the rule of law is the single most important precondition for inclusive, sustainable, and long- term peace and prosperity. So it is worth considering how the rule of law differs from China's current institutional arrangements. The rule of law has been defined in a variety of ways, but most authorities agree on certain key characteristics. As Kenneth W Dam of the University of Chicago formulates it in his book The Law-Growth Nexus, the rule of law excludes secret law and legal impunity, while protecting individuals from legal discrimination and enforcing rules that favour them to their benefit. Thomas Bingham, former Lord Chief Justice and Senior Law Lord in the UK, proposed a somewhat more expansive, though clearly compatible, definition. For Bingham, the law must be accessible and – insofar as possible – intelligible, clear, and predictable. Everyone should be governed according to law, insulated from the personal discretion of those in power, and legal disputes should be resolved without prohibitive cost or inordinate delay. There should be equality before the law, together with adequate protection of fundamental human rights. Moreover, state power should be exercised reasonably, in good faith, and for the purposes for which it was conferred, with independent courts and judicial review of legislation ensuring that government does not exceed the limits of its authority. The courts and other official adjudicative bodies should provide fair procedures. And the state must comply with its obligations in international law.

The rule of law cannot be built overnight. In England, the common law tradition evolved over hundreds of years through thousands of legal cases in which local lawyers, judges, and juries played key roles. In Continental Europe, meanwhile, the rule of law appeared in the form of the civil law tradition, which originated from Roman and Napoleonic codes that were revised periodically in response to regime change and revolution. Under both traditions, the rule of law requires a living body of rules and practices that adapts to changes in values, institutions, practices, expectations, and behaviours in a complex social system. This may be why Alexis de Tocqueville's The Old Regime and the Revolution is widely read today in Beijing. Over the last 30 years, China, which adopted the civil law tradition, has advanced rapidly along the path of rule by law, enacting laws and regulations similar to those in the West. It now enforces rules, regulations, and property rights for real estate and other assets, for starting a business, for employment, and for international trade and investment – all of which has made China's economic rise possible.

But, as China's economy and society advance, engagement with global markets and growing awareness of rights have caused expectations to change faster than the law and judicial practices. The Chinese people are no longer satisfied with rule by law and are demanding an end to systemic corruption, inadequate land rights, discrimination against migrant workers, state-owned enterprises’ privileged position, and weak protection of intellectual property. Will China be able to establish the rule of law as it is understood and practiced in the West and elsewhere in Asia? In the absence of an independent judiciary, legal disputes in China are often resolved administratively, which means that discretion and lack of due process are a constant danger: as the Chinese saying goes, it is easy for someone to catch fish in muddied waters. This is why a key Confucian principle holds that one cannot rule the state without exercising discipline over oneself.

香港——中国社会正在迅速形成一 个共识: 法治建设是实现包容、 可持续、及长久和平与繁荣的一个最重 要的前提。因此,我们有必要思考中国 现行体制与法治之间的差距。 法治的定义多种多样,但多数权威已经 就某些关键的特征达成共识。芝加哥大 学的肯尼斯·达姆在其新著《法律与增 长的关系》中指出:秘密法和有罪不罚 违反法治精神,法治保护个人免遭法律 歧视,并对有利于当事人的规则如实执 行且允其受益。 英国前首席大法官兼上议院司法委员托 马斯·宾厄姆曾提出过一个涵盖范围更广 的类似的定义。在宾厄姆看来,法律必须 为芸芸众生提供保护,并尽可能做到简 单明了、可以预测。所有人都必须接受法 律的管辖,并免遭当权者个人裁量权的影 响,解决法律纠纷的时间和物质成本也 应在可以承受的范围之内。法律面前应 当人人平等,同时必须对基本人权给予充 分的保护。此外,必须善意合理地行使国 家权力,并符合授予其权力的本来目的, 同时建立独立法院与立法审查制度,确保 政府不能越权操作。法院和其他正式裁 决机构应确保程序的公平。国家必须履 行其按国际法应当承担的义务。 法治建设不能一蹴而就。英国的普通法 传 统 经 历了 数 百 年 的 发 展,地 方 律 师、法 官和陪审团在数以千计的司法案例中发 挥 了 关 键 的 作 用。同 时,在 欧 洲 大 陆,法 治沿袭了民法传统,其最初起源于罗马 及拿破仑法典,并随着政权变更与革命 时常被修订。