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Abstract

Politicians, lawyers, and academics alike have long been fascinated with the rule of law, but this fascination has never immunized them from the challenges of defining just what the rule of law is. Indeed, defining the rule of law by citing an example, such as the United Kingdom or the United States, remains easier than articulating why those nations have the rule of law and how other nations can advance the ideal within their own boundaries. Still, modern scholarship has led to the creation of three alternative theories of the rule of law–formalist, procedural, and substantive conceptions. A formalist theory of the rule of law emphasizes the “form of the norms” applied to conduct. A procedural theory of the rule of law turns on institutions and their processes. A substantive theory of the rule of law compels the integration of formal and procedural aspects with substantive political ideals, which are often democratic. These definitions can and often are easily applied to Western democracies, but attempting to apply them to the modern Chinese legal system can leave scholars with more questions than answers about the true state of the rule of law in the 21st century. More than any other nation, China has long been the source of debate regarding its status in the rule of law discussion–is it a perfect example of a rule by law nation, and thus a perfect counterexample to the rule of law? Does it satisfy formalist or procedural definitions of the rule of law but fail to conform to substantive ideals? And if so, might that answer the age-old question of whether democracy truly is necessary for the rule of law? This Note argues that present-day China has taken slow steps towards building a legal and economic foundation of formal and procedural institutions which, at least momentarily, offer the government a rule of law smokescreen. This smokescreen has important implications for evaluating the flaws and strengths of formal, procedural, and substantive rule of law theories. It also places China on a collision course with the ultimate choice–whether to cling to its rule of law by cloak or to follow a natural evolution into a rule of law state.

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