The realization of NTCs at international level presupposes the existence of the co-called global constitutionalization of law. In this regard, it is important to shed light on the differences between rule of law and rule by law, argues Jean Yves Heurtebise

Jean Yves Heurtebise´s chapter “Understanding Non-Trade Concerns Through Comparative Chinese and European Philosophy of Law” in the book “China´s Influence on Non-Trade Concerns in International Economic Law” addresses the important issue of understanding – and subsequently overcoming – differences between various legal cultures, namely the Western legal culture on the one hand and Chinese legal culture on the other. This step is seen as a necessary precondition for a proper realization of Non-Trade Concerns (NTCs) at international level. One of the underlying presumptions in this regard argues that a proper implementation of NTCs at international level would require the achievement of the so-called global “constitutionalisation” of law, which might be translated as a recognition of certain universal legal standards, many of which encompass elements associated with the Western concept of rule of law. The point of conflict in this respect might represent especially the discussion about the content of the rule of law. The Western concept of the rule of law is defined at best by the words of Alexander Hamilton and John Jay in “The Federalist Papers.” According to their understanding, governance is based on two crucial pillars: control of the governed by the government and self-control of the government. The obligation imposed on the State to control itself represents the cornerstone of the Western rule of law concept. Without this part, it is not possible to talk about the rule of law, but only about the so-called rule by law, which stands merely for the preservation of social order by the means of legal rules. The concept of rule by law is applied in China and the Chinese government tends to promote this concept also at international level. However, the promotion of the Chinese concept finds little appeal in the Western countries. As Jean Yves Heurtebise argues in his chapter, the different understanding of the rule of law in China is owed also to its indigenous legal traditions, such as Confucianism or Legalism, which did not operate with the notion of accountability in the same way as the Western legal culture. The proper realization of NTCs at international level requires overcoming of these differences. One of the possible ways to reach a common ground might be seen in agreeing on certain fundamental rights, which are not sensitive and controversial, such as subsistence rights. It would be interesting to see, where the beginning of such discussion would lead China on the one hand and the rest of the international community on the other.