A document by the Central Committee published on February 26 orders law schools to oppose “constitutionalism” and other Western democratic fallacies.
By Zhou Kexin
March 2, 2023
No room at the inn for Montesquieu in China. His theory of separation of powers making the executive, legislative, and judiciary bodies independent from each other has just been banned from Chinese law schools. Any theory of the “independence of judiciary” is forbidden. So is “Western constitutionalism.” All these are just “Western erroneous views.” Chinese law students should study comparative law and systems different from their own, but with the aim of criticizing them by applying “Marxist theory” and the unavoidable “Xi Jin Ping thought.”
So say the “Opinions on Strengthening Legal Education and Legal Theory Research in the New Era,” published on February 26 and issued by such a high-placed body as the General Office of the Central Committee of the Chinese Communist Party. Too bad for Montesquieu but if you are a dictator in some developing country you have found the perfect school where to send your brightest law students. They will come back home with their heads unencumbered by stupid Western ideas about democracy, human rights, and an independent judiciary.
However, they will bring home something else. They will study “Xi Jinping thought” and Xi’s interpretation of Marxism. Law schools exist in China to “comprehensively promote the introduction of Xi Jinping’s interpretation of the rule of law thought into textbooks, classrooms, and minds.” They will also learn to “firmly grasp that the leadership of the CCP is the fundamental guarantee for the socialist rule of law, fully implement the Party’s basic ideology, basic line, and basic strategy,” and “consciously strengthen the Party’s leadership.” Law schools should make each student into a “staunch supporter of the Party’s rule.”
Jacques-Antoine Dassier (1715–1759), portrait of Montesquieu (1689–1755). Credits.
The guidelines ask Chinese universities to try to attract more students from the countries that have signed Belt and Road memoranda. They should know, however, that they will study texts such as “Xi Jinping’s Rule of Law Study Outline,” “Xi Jinping’s Rule of Law Study Questions and Answers,” “Chronicles of the Communist Party of China’s Centennial Rule of Law,” all mentioned in the guidelines.
The United Nations define the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated.” They add that the laws should be “consistent with international human rights norms and standards.”
This is not, however, Xi Jinping’s theory of the rule of law that students learn in China. For him, the “rule of law” is the rule of the Communist Party. Judges cannot be independent because they should obey the Party. Laws should be interpreted according to the directives of the Party and applied only insofar as they benefit the Party. Definitely, this is not Montesquieu nor “Western constitutionalism.” Foreign universities who send their students to Chinese law schools should know they may receive something different from the “comparative law” they had bargained for.