If we “rule by virtue,” where is the law?

China released a communique late yesterday from the Fourth Plenum of the 18th Central Committee of the CCP. The document, which offers a preview of the full “Decision” to come in the next couple of days, deals with the “comprehensive advancement of rule of the nation by law (依法治国), with the overall goal of building a socialist system of rule by law with Chinese characteristics, and the building of a socialist country ruled by law.”

What does that mean? It’s difficult to say — and it’s certainly premature to speculate before the full decision is released.

However, it is worth noting that the communique does include a pair of political phrases CMP director Qian Gang (钱钢) analyzed at some length back in September: “ruling the nation in accord with the constitution” (依宪治国) and “governing in accord with the constitution” (依宪执政). For more, readers can see “The Missing Speech” and “Xi’s Missing Terms Emerge Again.”

Here is what Qian Gang wrote about the terms in the first of these pieces:

These were Xi Jinping’s most jarring slogans after taking the Party’s top post in 2012, and they were closely tied to the subsequent championing of “constitutionalism” that we saw among intellectuals in China. The rise and fall of these terms reflects internal political sensitivities. In January 2013 — the month that the Southern Weekly incident erupted in Guangzhou around the censoring of the New Year’s message on constitutionalism — the terms did not appear in the People’s Daily. Then, after appearing once each in February and March that year, the terms disappeared from the paper altogether from April to July. In August, there was one appearance of either term, just as the propaganda tide against constitutionalism reached its height. In October 2013, there was one appearance. In November, two appearances. In February, 2014, there was one final appearance — and since then we’ve not seen the terms at all.

These Xi Jinping phrases seem to be the subject of some degree of internal Party wrangling, and it remains unclear how central they were originally conceived as being to Xi Jinping’s own goals and legacy building. As Qian Gang wrote, the phrase uniting the two terms “was very possibly conceived originally as a Xi Jinping banner term, like Jiang Zemin’s “Three Represents” (三个代表) and Hu Jintao’s “Scientific View of Development” (科学发展观).”

One thing we can say about yesterday’s communique is that it seems to bring these terms back into prominence, and they’re virtually assured prime position in the full “Decision.”

Still, optimists be cautioned. Despite all the talk of “rule by law” in the communique, the Party’s position of dominance remains absolutely clear in the language, and it remains to be seen how Xi Jinping and other Party elites view the notions of “ruling the nation in accord with the constitution” and “governing in accord with the constitution” over and against the supremacy of the Party’s position.

If the hot-and-cold history of the terms themselves is something to go by, that question is a point on which there is a lot of division.

But there is another term in the communique that deserves attention as well. And it is a point in favor of those who lean toward a more pessimistic reading. In graph nine of the communique, the term “governing the nation with virtue” (以德治国) is added to the list of governance principles:

To realize these goals [of ruling in accord with the law], [we] must uphold the leadership of the Chinese Communist Party, uphold the principle position of the people, uphold equality of all people before the law, uphold the combination of ruling the nation in accord with the law and ruling the nation with virtue (以德治国), upholding the [principle of] proceeding on the basis of China’s realities.

What does it mean to “rule the nation with virtue”?

For a precedent for the use of this term we have to go all the way back to Jiang Zemin. Jiang used the term in an almost identical manner when articulating the Party’s governing principles in June 2000. “[We must] uphold the combination of governing the nation in accord with the law and governing the nation with virtue,” he said (坚持依法治国与以德治国相结合).

But after 2000, the term fell entirely out of favor. So we are witnessing the return of a ghost after a 14-year absence.