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NOTE: This is not really an outline. It’s a summary of all of the readings in “WHY LAW? CHINA…” in the spring of 2008. You are welcome.
Unit I: Introduction
Class 1: Introduction
Executive Summary: These readings set up the big questions: What are the major challenges facing China? To what extent can China be compared to other countries? How does China’s history influence modern developments? Is China moving in the “right” direction?
Excerpts from Hu Angang, “Equity and Efficiency”
One of China’s leading economists discusses China’s challenges and proposes some solutions.
• Modern Chinese transformation is characterized by:
o Societal change: Population growth and massive migration from rural to urban areas.
o Economic change: huge economic growth and movement from planned economy to market economy
o Political change: movement from centralized government to “socialist democracy”
• Rural Urban inequalities/divisions/contrasts:
o Political contrasts: There are different institutional structures in rural and urban china. Although a minority of the population lives in the cities, the cities get the lion’s share of governments budget and are over-represented in representative government.
o Economic contrasts: The large cities in China are comparable to “first world” cities, medium sized cities are “second world,” while rural China is still “third world”
o Sociological differences: Small Urban Chinese populations are more educated than vast rural/agrarian populations.
• Hu’s Political Solutions:
o China should model itself on a W. European social welfare state, ensuring the availability of public goods and providing social services and social security.
o The government should be federal (split power between national and local governments to allow for regaional/ethnic differences)
o Hu also likes separation of powers/checks and balances
o Other reforms: transparency, independent journalism, smaller gov’t funded through taxation, limit on the power of the army on the gov’t (while keeping it strong)
• Hu’s Economic Solutions:
o Focus on human development
o China should trade and take advantage of comparative advantage
o Change social norms to avoid materialism and “get-rich-quick” mentality.
• Hu’s Social Solutions:
o Government (rather than public or private enterprises) should provide social security, healthcare, unemployment insurance, social safety net etc...
Wang Shaoguang, “The Problem of State Weakness”
This article argues that the Chinese state is weak and that the state needs to be strengthened before democratization.
• How is the Chinese state “weak”? It can’t meet 6 basic functions of gov’t:
o (1) No monopoly on the legitimate use of force—lawlessness exists in many parts of China and police officers are often outgunned by gangs.
o (2) Bad finances: Tax burdens are high, but revenues are low.
o (3) Weak national unity: there is a “spiritual void” in China
o (4) Bad/Ineffective Regulation: evidenced by rampant counterfeiting.
o (5) Government lacks internal coherence: Public corruption—failure make businesses obey the law because officials fear unemployment.
o (6) Failure to redistribute: China’s rising tide hasn’t lifted all boats.
• Wang argues that these problem must be solved before Democracy could work in China. The state will have to have effective institutions to deal with legitimate popular demands.
John Thornton, “Long Time Coming: The Prospects for Democracy in China”
Thornton thinks that China is moving toward a form of Democracy, but that Chinese democracy may be very different from Western democracy. There are three areas where important reforms are being made (we’ve talked about these reforms in other classes, so I’ll keep this brief):
• (1) local elections: China is making some baby-steps with township elections, intra-party competition/elections
• (2) judicial independence/rule of law: judges are a lot better trained and more professional than they were in the past
• (3) Party oversight:
o some paths are being created for citizens to challenge government/party decisions
o restrictions on investigative journalism are being relaxed
Daniel A. Bell, From Marx to Confucious: Changing Discourses on China’s Political Future
• Marxism is still the official ideology of the CCP, but it is hardly ever talked about anymore.
o To the extent that Marxism plays a role in the modern CCP, it exists to explain that communism is a distant goal that will follow a period of capitalist development (i.e. what China is undertaking today).
o In broader Chinese society, Marxism has been “so discredited by its misuses that it has lost almost all legitimacy” (p. 3).
• What is filling the “moral vacuum”? Confucianism.
o Confucianism is deeply ingrained in Chinese society: Bell argues that some aspects of the CCP program (placing the state over family ties, for example) failed because they didn’t “resonate” with Confucian ideals.
o The party’s “harmonious society” program has affinities with Confucian thought.
• Is Confucianism a challenge to “Western Style Democracy?” Maybe yes, maybe no.
o Some thinkers have equated Confucian ideals with democratic institutions such as “parliamentary systems, elections and equal rights” (p. 4), but others use Confucianism to advance less democratic governmental arrangements.
Roberto Unger and Zhiyuan Cui, “China in the Russian Mirror”
This short piece argues that China should learn from the Russian experience, which proved that simply development cannot be achieved by simply “imitating...Western economic and political institutions” (p. 1). Rather, to succeed, China will have to be innovative and build “on its own peculiarities and inventions” by “deepening democracy” (i.e. involving the populace in politically meaningful ways) and allowing for democratic “experimentalism”.
James Mann, “Who’s Integrating Whom?”
This is a pretty cynical view compared with the rest of the articles for this week. Mann argues that American military and business interests prevent us for seeing the Chinese government for what it is—a brutal Leninist regime bent on stifling “political pluralism” (p. 106). The author argues that the American push for increased “rule of law” may help American businesses (by giving them secure property rights in China) but it will not necessarily result in increased rights for Chinese citizens. In fact, increasing the efficiency of the Chinese legal system may just make oppression of Chinese citizens more efficient.
Unit II: The Chinese Legal Tradition
Class 2: The Intellectual Foundations (1)—Confucianism
This assignment outlines the elements of Confucius’ thoughts, and those of his two most noted disciples: Mencius and Xunzi. The article on the history of the western philosophy juxtaposes Locke’s idea of a social contract as the justification of government, with Confucius’ belief that the family is a source of power for government and that filial behavior reinforces government.
1. Intro note on Confucius, from Sources of Chinese Tradition, Bary/Bloom (1999)
• Confucius’ followers were identified as ru. He emerged as a scholar responding to a crisis of civilization from warfare due to contending states fighting for territory and power. The law wasn’t his primary concern (Confucius tried to dissuade people from resorting to litigation)
• He advocated for the perspective of the ru and tried to promote the styles and manners of the noble person (gentleman) (junzi) and the efficacy of moral force or virtue (de), rather than violence and coercion, as a strategy for rulers. (rulers should not be violent/cruel in their positions)
i. Here Junzi refers to a noble man whose nobility derives from personal commitment & a developed moral power (de). From Confucius’ perspective, anyone could become a junzi, although you have to pass stringent moral requirements that applied to attitude, motivation, and behavior.
ii. 3 most important kinds of conduct that Confucius associated w/ moral nobility (expected of the junzi): (1) filial devotion (xiao) (family devotion) - family as the heart of everything (parents have responsibility of being benevolent & take care of kids, kids = responsible for showing reverence & respect). (2) humaneness (ren) (3) ritual decorum (li)
• The Analects is a selection of conversations compiled by followers, some weren’t contributed to the written record until over a century after Confucius lived. Confucius did NOT write the Analects. Confucius was NOT influential to others (besides his student) during his lifetime, but became influential through his disciples after he died.
i. After the Cultural Revolution, the PRC began pushing the values of Confucianism as a way of rebuilding & moving forward. Confucianism has become commercial in the PRC
• Confucius sees government as modeled on the family and sees the practice of filial devotion to have a bearing on the stability of society as a whole. He believes that filial devotion practiced in one’s family has wide scale ramifications.
• Leadership: “From a Confucian perspective, perhaps the most important capacity that a ruler can have is the capacity for recognizing that he must treat the people as he himself would want to be treated in their position”- p.43
2. Selections from the Confucian Analects. Book 2, 12, 13
• BOOK 2: Confucius says: if a leader guides people by virtue and keeps them in line with the rites (rituals/traditions), they will have a sense of shame (for what they’ve done wrong) and they will reform themselves. This indicates that there IS a place for law (society has both morality & law), but the most important thing= for the citizens to be persuaded to be a certain way.
i. The importance of being filial (complying with traditional notions of respect w/in family to elders, etc.): (1) show reverence, take care of your parents, comply in the rites in serving parents (2) belief that being filial is a way of exerting an influence upon government. Being filial reinforces gov’t.
• BOOK 12: Importance of a leader having the common people’s trust.
a. A leader doesn’t need to be violent, just be good to her people and be a virtuous gentlewoman
• BOOK 13: Government:
1. Leaders should set an example for people and it will encourage them to work hard
2. Show leniency to minor offenders and promote men of talent
3. Rectification of names: (1) Represents a need to understand the language being used in order to run a country (a unity comes w/ a shared understanding of terms so rectification can mean getting the names/titles right). (2) Also, this could mean that if rulers want to act like kings- have to sort out those who are true rulers from those who aren’t- telling rulers to ‘shape up’ in order to receive the legitimacy they seek. Moral call to live up to titles.
3. Excerpt from Betrand Russell, A History of Western Philosophy (1945)
• Locke represented a theory about the origin of government that maintained that civil govt = the result of a contract & that it is NOT established by divine (God-ordained) authority.
i. Served as an explanation for why people should obey governments. According to Locke, the govt is a party to the contract & can be justly resisted if it fails to fulfill its part of the bargain.
ii. Locke held the view that those who do not have property are not considered citizens. He assumed the exclusion of women & the poor from the rights of citizenship, as well.
iii. Locke believes that the power of the government contract never extends beyond the common good. But Locke didn’t ask who would be the judge of the common good, it is presumed that he would say that they majority of citizens is to be the judge. B/c Locke sees compliance w/ the govt as a social contract b/w citizens & the govt, each citizen must consent to the contract. “The civil compact which institutes govt binds only those who made it”-p. 631.
iv. Locke says the supreme power can’t take a man’s property w/o his own consent. The authors note that the social contract that Locke speaks of is mythical but there is some measure of truth in it as a justification of govt.
4. Intro note on Mencius from Bary/Bloom (1999)
• Both Mencius & Xunzi reflect on matters of governance & personal cultivation & the direct relationship b/w the 2.
• Mencius – Confucius’ first great successor: The Mencius = a record of conversations b/w Mencius & rulers of the contending feudal states, disciples, & philosophical adversaries. Many of the exchanges are arguments. Mencius says that humans have certain basic needs (food shelter clothing education) that must be met in order for their existence to be possible. He directly criticized rulers for instigating warfare and for not being more humane. Mencius believes that human moral potential is great, and that human tendency is to do good but force of circumstances may bring men to do evil. He discusses the 4 beginnings that every man is capable of exercising (because they’re innate): humaneness, righteousness, propriety (decorum) & wisdom. And a *natural human tendency toward sympathy to others* which is 1 of his most important contributions to later Chinese thought. Mencius on government: the focus should be on humanity and virtuous conduct, not profit and power; the ruler counts the least, the people rank the highest. Mencius on the Well Field System: a system of equal landholding where eight households surround a central public field which gets priority in cultivation over individuals’ own fields. Mencius believed, like Confucius, that the foundation of the state lies in the family.
5. Intro note on Xunzi (Hsun-tzu), from Bary/Bloom (1999)
• Xunzi’s view of the world was darker than Mencius’- he challenged Mencius’ positive conception of human nature as fundamentally good. He reaffirmed Confucian values of devotion to learning, culture, & the possibility of human perfectibility. Xunzi focused on Confucius’ commitment to order, hierarchy, personal cultivation, & community organization. Xunzi’s work is a collection of essays, not conversations.
i. He believes that the nature of man is evil & that goodness is acquired. Men wish to be good b/c their nature is evil. A man must submit himself to teachers & laws in order to be just. Xunzi said that rulers should not be impatient & too stern, but not too sympathetic. He believes that gentlemen are the only people capable of such government (no favoritism or partisanship), and that ‘one who truly understands how to use force does not rely upon force’- p. 40.
Class 3: The Intellectual Foundations (2)—Daoism (Taoism) and Legalism
Executive Summary
Building upon Class two, this class attempted to highlight the role of religion in structuring governments and ideas of governance in Chinese history. These patterns of thinking may be relevant to understanding China’s current government structure and approach to legalism. Importantly, think about arguments that the current lack of a dominant religion in China is driving greed, immorality and lack of consideration towards others, leading to the corruptness of judges, local government officials etc that we have read about in class. Is there a role for religion in reforming China’s legal system?
Some questions to think about:
1. What role, if any, might the Daoist skepticism about law and morality play in the current Chinese government’s approach to law, legality, and judicial independence?
2. How might one draw on the Daoist focus on spontaneity and nature to advocate for a “true” market economy with less government interference?
3. How might the Legalists’ focus on uniformly administered laws be used to advocate for more comprehensive laws and stricter enforcement of the same in contemporary China?
4. Does the legalist vision of government conform to our views on “rule of law”? Or is this more a vision that embodies “rule by law”? Is there a meaningful difference between the two? Does each draw on and sustain the other – i.e. does a functioning society need both rule by law and rule of law? We talked about some of the elements of “rule of law” in class: legitimacy of laws, equal application of laws to all, and accessibility of the law to all.
Because this week’s readings are hard to separate, I’ve consolidated the Daoist and legalist readings into two packages. See below:
Introductory note on Laozi and Zhuangzi from Sources of Chinese Tradition, eds. William Theodore de Bary and Irene Bloom (1999). AND Selections from Lao-tzu (Laozi)
Daoism focuses on simplicity, emptiness and spontaneity. See §16 of the Selections from Lao-tzu ( “Attain utmost vacuity.” Daoism criticizes the Confucian focus on hierarchy and multiple distinctions between inter-personal relationships i.e. relationship between father and son, ruler and subject, etc. It views the Confucian idea of striving towards perfection as a reflection of human conceit. Instead, it emphasizes the link between people and nature and assumes that this link reduces the need for government, law, and order.
Introductory note on the Legalists from de Bary and Bloom (1999). Selections from Han Feizi (Han Fei-tzu). AND Introductory note on Li Si from de Bary and Bloom (1999). Selections from Li Si. (Legalists)
The Legalists view Confucian thinking as idealistic and naïve – unresponsive to harsh political realities. They (the legalists) understood humans as inherently evil and unable to cultivate goodness. These values anchor their belief that government should be based on strict laws, with little individual/human discretion.
Class 4: Law and Order in Imperial China (1)
❖ Executive Summary:
These readings introduce us to the Qing code, the legal system of the last great Chinese dynasty. In considering the code we are asked to consider it in contrast to western legal systems. The first reading introduces the Qing code and provides a context in which to analyze it. The selected materials from the Qing code provide examples of areas in which it differs drastically in its focus from western law. The DC code provides an interesting parallel to the considerations of the elderly laid out in the Qing code, and the case of Hsu Chung-Wei allows us to observe its application. Lastly the excerpt from Maine describes the progression of ancient legal systems from a focus on the family to a focus on the individual.
❖ Excerpt from William C. Jones, The Great Qing Code
The Quing Code represents an important foundation of the Chinese legal system. It was the law of the last Chinese dynasty, however, its roots can be traced back though history and numerous preceding dynasties. Study of the code, and of Chinese law in general, is important for comparative law scholars because of the fact that Chinese law developed completely independently from western law. It therefore presents an opportunity to consider the ways in which a completely separate culture sought to solve the same legal problems that we are presented with. One of the fundamental differences between the approaches of Chinese and western legal systems is that Chinese law focused primarily on the interests of the emperor and the government as opposed to the rights of individuals. To this end the structure is organized around the regulation of the various branches of government, and essentially prescribes punishment for failures (at the various levels) to fulfill one’s duties to the empire. To the extent that individual rights are contemplated, they are given legal effect only to the degree to which they might affect the interests of the empire. In short individuals are indirectly benefitted by a primary focus on the interests of the state, while the reverse is true in western legal systems (pg. 9). The code functioned almost like the US constitution in that it represented the central source of law and force behind legal principles, while most decisions were actually made based on precedent.
❖ The Qing Code: Selected Material
Article 1: The Five Punishments – A list of the various types of punishment and their degrees.
Article 2: The Ten Great Wrongs – A List of the ten worst offenses which carry the harshest penalties. While I can’t think of a parallel in western law, I was reminded of the ten commandments, and there is a degree to which these might have a moral/religious influence. The focus of these wavers between moral failings (eg. great lack of respect) and crimes against the empire (eg. treason).
Article 3: The Eight Categories of Persons who are to be given special consideration – These are mostly people who have some connection to the emperor, or did some great service to the empire. This is also unusual when considered in a western context as there is great emphasis on unbiased application of the law in western systems.
The remaining articles go on to list the punishments for various types of people and exceptions for special circumstances. One is forced to note the importance that is placed on family eg. article 18 allows for convicts to escape punishment to varying degrees if they have to take care of their parents or their father’s parents. Women, the elderly, and the infirm often receive lesser punishments, however this and other exceptions never seem to apply to the ten great wrongs. People who confess before their crimes are brought to light may be pardoned or given a reduced punishment (article 25). Such is the emphasis on family that family members are not punished for concealing crimes committed by their relatives (this does not include plotting treason or similar crimes). Also, accusing ones family members (even if it is true) is punishable, even in the case of children accusing their parents, or even failing to obey or take care of them. This emphasis on importance of the structure and hierarchy of the family is probably a parallel to the structure and hierarchy of the society as a whole with the emperor at the head.
❖ The Case of Hsu Chung-Wei [to avoid confusion I’m going to use relationships in the summary instead of names]
After a disagreement regarding an unpaid debt two men began fighting. The end result was that one man suffered fatal injuries and died a day later. To avoid punishment, the killer bribed the father of the deceased to say that his son committed suicide. The father agreed. The killer also bribed the coroner, who in turn convinced the local magistrate that suicide by poison was the cause of death. Meanwhile, the younger brother of the deceased returns home, learns of the treachery, and makes up his mind to report the killer. On his way to do so he encounters friend 1, who advises him not to file an accusation but instead to accept money from the killer. Younger brother pretends to agree and goes on his way. He then meets friend 2 who he asks to draft the accusation for him, friend 2 suggests accusing the magistrate of error so as not to implicate his father. He agrees, pays for the document and files it. Friend 2 then goes to the killer and the father and tells them to stick to their stories for which he receives more money. Upon receipt of the accusation the magistrate summons the parties, however, the younger brother is too afraid to accuse his father and runs away. The magistrate lets everyone else go. Later a cousin of the deceased files another accusation, the parties are again summoned and the younger brother is caught shortly thereafter. The truth eventually comes out after interrogation and the governor suggests punishment for each of the parties according to the code. The governor’s suggestions are submitted to the board of punishments who have the final say. The governor suggests that the killer be sentenced to death, the coroner be deported, and everyone else either be put in prison or caned, with the exception of the younger brother who should be pardoned. The board revises: they agree that the killer be put to death, however, they revise the punishments of father and younger brother based upon the principles regarding family embedded in the code. Father should go free they say, and son should receive 3 years in prison and 100 strokes for indirectly accusing his father. The other players all received blows of the heavy bamboo for their various treacheries and/or failings.
❖ Excerpt from Sir Henry Maine, Ancient Law (1861)
The progression of law has carried with it increased rights and powers in the individual and decreased rights and powers in the family. In short the individual has replaced the family as the salient unit of society. This is most evident in the rise of contract relationships as a means of determining obligations and the relative decline of familial relationships as this basis. Maine posits that to the extent that notions of status were grounded in ideas of familial hierarchy, legal systems have evolved from a focus on status to a focus on contract.
Class 5: Law and Order in Imperial China (2)
Executive Summary
“Until the late 1800s, “the policies of both government and society still reflected the status quo—the essential Confucian values and attitudes.” (Cohen, 1225) Although a Western critic may denounce the Ch’ing system of dispute resolution as antithetical to “democratic values, national unity, and economic abundance…the Confucian-educated elite of China had an entirely different perspective.” (Id.) Cohen’s article, along with all of the assigned readings present a more thoughtful and varied perspective of criminal justice in late imperial China. The writings challenge the reader to discover the successes and social benefits of the Ch’ing system—however different it may be from our own—as well as to understand more clearly why Communist leaders later took issue with some aspects of the system. (1224) As you review these materials, consider whether the informal mediation system is an outdated, backward practice that needs to be abolished or a uniquely Chinese institution worth cultivating and strengthening to confront the unique challenges of the modern PRC.
Alford, “Of Arsenic and Old Laws: Looking Anew at the Criminal Justice Process in Late Imperial China”
Western critiques of China’s formal criminal justice process in the late imperial era characterize the system as “an instrument of state control little concerned with individual justice.” (1184) The system has been attacked for a number of reasons, including “the intermingling of administrative, adjudicatory, and other authority, particularly in the hands of the district magistrates, the manner in which trials were to be conducted, the tenor of the substantive laws administered through the process, and the absence of belief among the populace that the process was a vehicle for securing justice.” (1192) Professor Alford’s article, however, challenges this traditional narrative by “reconstructing…and analyzing one of the most celebrated criminal cases in Chinese history” in an effort to paint a more complete and complex picture of the imperial justice system. (1188)
The facts behind the murder of Ko P’in-lien, a lowly bean shop attendant, and the ensuing trials of his widow Hsiao-pai-ts’ai and her suspected lover Yang Nai-wu are much too numerous to recount here. (1196-1226) It would be easy to criticize the seeming lack of separation of powers, dearth of magistrates with formal legal training, absence of an accused’s presumption of innocence, and the conception of law that “buttressed the authority of the imperial government and family” at the seeming expense of individual rights and equality (1194-1195). Yet one should not miss that the imperial system, much like our own, in practice sometimes fell short of its intentions. It was designed to be a system that safeguarded an accused through four formal checks on the district magistrate’s powers: an elaborate array of penal and administrative laws (1227), an obligatory review system (Id.), an appellate procedure (1228), and supervisory authority by direct superiors and censors (Id.). But complications—like an individual magistrate’s willingness to comply with the rules, the unwillingness of superiors to question subordinates’ judgments, the unfamiliarity of high-level provincial officials with the regions in which disputes arose, a tradition of political patronage and the promotion of incompetent officials, etc.—all thwarted the effective administration of justice. (1228-1242) Despite its imperfections and shortcomings, the substantive and procedural laws of the late imperial era criminal justice system must be thoughtfully reconsidered and cases like those of Hsiao-pai-ts’ai and Yang Nai-wu (where “two seemingly incorrect capital sentences were reversed and officials who acted improperly were punished” (1243)) must be used as launching points for critical reflection as to the tensions and contradictions in the legal tradition that modern China has inherited.
Sanford Kadish, “Methodology and Criteria in Due Process Adjudication—A Survey and Criticism”
Kadish argues that the procedural restraints embodied in our due process tradition concern themselves with two chief aims: the reliability of the guilt-determining process and the respect of the dignity of the individual. As to the former, which is often denominated “fairness,” the chief concern is not so much with the dispensation of a particular individual’s case as with the “integrity of the process of ascertaining guilt or innocence” itself. All of our notions of due process (e.g. notice, confrontation, cross-examination) are meant to promote a free society of free individuals who can choose their conduct in light of the “legal security and certainty” that comes from laws that do not “resid[e merely] in the will of a ruling power.” (347) He also goes on to say that the second objective then rounds out the picture by focusing our attention on the individuality of the accused. Confession by torture or violations of the Bill of Rights are seen as denigrations of the human personality, and these affronts run counter to the very notion of personal, emotional, and intellectual freedom.
Conflicts arise, however, when opposing values clash with our notions of due process. (see examples 347) Although some like Hand and Cardozo have lamented the absence of any uniform standard against which to weigh these competing values, the writer proposes that we push past the impasse by reframing the way we conceptualize these values in the first place. He suggests that “values are not once-and-forever-stated absolutes, but are, after the fasion of scientific laws or principles, tentatively formulated generalizations which explain the resolution of past moral impasses and which serve to give direction to the solution of new ones.” (348) Viewed in this light, it becomes clear that Anglo-American due process procedures have arisen from this very kind of value accommodation. We have a criminal justice system that values both reliability and individuality, yet we realize that it does not guarantee that “the innocent should never be punished or that no man should suffer his privacy and dignity to be impaired at the hands of the state.” (349) Instead, we focus on the common denominator of conflicting values and craft a system where “the guilty be punished with sufficient consistiency to serve the social functions of the criminal law; that freedom of the individual…and the respect for the individual be preserved; and that opening for subversion of the democratic social order through corruption of the criminal processes be prevented.” (Id.) In this way, our system remains flexible enough to meet the demands of new social challenges through the application of reason and knowledge that we have already attained.
Jerome Cohen, “Chinese Mediation on the Eve of Modernization” (1966)
Although some Chinese scholars maintain that “litigation was not uncommon” in late imperial China, there is no question that the people “preferred [extrajudicial] mediation to litigation” for many philosophical reasons. (1212) China’s nineteenth century rulers were strongly influenced by Confucian ideas that “the legal process was not one of the highest achievements of Chinese civilization but was, rather, a regrettable necessity.” (1206) Litigation “symbolized disruption of the natural harmony…in human affairs,” and Confucian values taught that “the functioning of the social order and the maintenance of the group” (as opposed to the rights of the individual) would best be preserved through the art of compromise. (1207) Thus, a dispute resolution system emerged that would be backed by the power of moral persuasion, not sovereign force. (Id.) Even legitimately aggrieved parties were taught to “suffer a little” and “give way” rather than incur the disgrace and social disapprobation of losing face in the assertion of any supposed rights. (1206-07). What’s more, individuals were expected to resolve their disputes within the context of their own social role, thereby reinforcing the Confucian emphases on social status and hierarchy. (1208-09) As a result, “a large area of life in China was regulated by….unofficial organizations or by unwritten customs.” (1211-12)
There were also a number of practical reasons that imperial Chinese avoided the courts. Many Chinese found it difficult to travel to the magistrate’s yamen in the county seat, and many magistrates were considered “corrupt, lazy, and given to following their…emotions.” (1212) Magistrates were also largely untrained in the law (having qualified for their posts by mastering the Confucian classics), served relatively short terms in regions with dialects and customs they didn’t understand, and they were already overburdened with large number of duties—from taxation to promotion of education and culture. (Id.) In addition to being expensive and time-consuming, trials before a magistrate tended to be “degrading and harsh” airings of “personal failing” and “humiliation.” (1214) One was subject to “illegal torture and privations” as well as remedies that were “only available in theory because of the need to rely on the magistrate’s staff for implementation.” (1214) Thus, imperial Chinese were motivated to solve their problems without resorting to the formal legal system. (1216) Informal mediation occurred at all levels of society. Disputes within the family were to be settled by the father or grandfather. When outsiders were involved, a “senior disinterested person…such as a[n]…uncle” would hear the case. (1216-17) Similarly, disputes within the clan were to be solved by elders within that group as well. (1217-18) Villages comprised of several clans would have their disputes resolved by a village headman or constable. (1219) Disputes among guild members (i.e. associations of tradesmen) would be settled by designated officers, an ad hoc panel of guild members, or perhaps the entire guild membership. (1221-22) At every stage, there was tremendous social pressure to use these informal mediation systems rather than turning first to a magistrate. In fact, one who attempted to bypass the system and go straight to the magistrate would often find his case remanded to a local leader at the appropriate stage. Thus, although the Ch’ing Code “did not make extrajudicial mediation a compulsory first step…in the actual context of Chinese life resort to mediation was frequently no[t]…voluntary.” (1223)
Although Westerners generally frown upon such an extrajudicial system, it actually had a host of advantages for imperial Chinese. An individual was able to solve his conflict in “a socially acceptable [way] in the light of the Confucian ethic and group mores” without incurring the hazards and expense of inefficient, inconvenient litigation. (1223-24) Also, both parties were able to “bargain through and with third parties whom they were likely to know and respect…and who might be familiar with the background of the dispute as well as with local norms and practices.” (1224) The government, likewise, promoted the system because of its “contribution to social cohesion, convenience to disputants, and the political desirability of permitting local people to dispose of relatively unimportant local problems” that would otherwise require “drafting [a massive] body of legislation” that would have to be enforced in a country as large and diverse as China. (1225) The system tended to resolve controversies between individuals/families of relatively equal status by reinforcing the “substantive norms of the community—custom, li, clan, guild, or village rules.” (1224) These values tended to be compromised, however, when it came to disputes between members of different social classes. Educated, powerful, and wealthy parties not only used the courts to their advantage, but they also tainted informal mediation by garnering the favor of mediators and pressuring those of lower status into unfair settlements. The Communist system that eventually followed reacted quite strongly against this form of abuse, though it preserved the former system’s anti-litigation sentiments and emphases upon “criticism education” and “self-criticism.” Most notably, the ensuing Communist system radically transformed the mediation system by changing the government’s role from one of a passive observer—content not to interfere with the autonomy of local decisionmakers--to that of an active participant—bent on controlling local groups in their efforts to “transform traditional society.” (1226)
Hsien Chin Hu, “The Common Descent Group in China and its Functions” (1948)
With respect to the well-run society, the Confucian school of thought emphasizes the importance of the li (or “approved patterns of behavior between individuals standing in a definite relationship to each other, and in conformance with a definite system of values relating to such social relationships (53)) and downplays the importance of law. Cherished values include the display of virtuous conduct, filial piety, fraternal devotion, national loyalty, and faithfulness to friends. (54) Rather than prescribing a rigid set of rules that provides punishments for criminal violations, Confucius’ followers take to heart his philosophy that, “Law obliges men to follow it; li transforms men.” (53) Li is carefully inculcated into individuals from their earliest socialization experiences, and it is the family and the tsu (not a civil code) that the central authority trusts to provide the moral education and discipline its people need. In fact, the imperial penal code itself served to reinforce the li which, in turn, grew to become a second albeit informal set of laws. (54).
Tsu elders had significant, autonomous disciplinary powers, and they were entrusted to use the li to adjudicate “quarrels between relatives [that are] of such a complex nature that the law cannot cover every case” as well as serious crimes against the government (54, 56). Using the tsu to settle disputes allows claimants to save both face[1] and money, as well as ensures a more reliable outcome since delicate family circumstances can be taken into account. (56) In fact, one could not formally pursue a case before an administrator without first having attempted a “peaceful settlement” with the tsu leaders. (Id.) A tsu trial is held in the ancestral hall with elaborate procedural formality (57-58) and deals with a long list of offenses that disrupt social harmony[2]. The tsu were empowered to “detect and punish,” persuade the wrongdoer to mend his ways, and even indict the unrepentant offender. (Id.) Tsu punishments varied with the severity of the offese and the traditional tsu rules, ranging from an admonition to complete explusion from one’s tsu, effectively shutting one out “from the community of the living and of the dead.” (61) Various aspects of tsu adjudication could seem both harsh (e.g. near relatives could be punished for one another’s offenses) and merciful (e.g. a reformed offender could be reaccepted by his tsu) at the same time. (62) Nonetheless, the state approves of the tsu’s judicial functioning, and even today the challenge that modern China faces is to inculcuate societal approval for its Western-influenced modern law code that runs as deep as the loyalty that kinship groups show to the institutional control of the tsu. (63)
Class 6: Imperial China and World Order
EXECUTIVE SUMMARY
This class covered the interface between the Chinese system of law and the western world in the 19th century. The interface introduced foreign ideas of law (both domestic and international) into China. China had a strict, hierarchical, authority-based tribute system of trading, which was reminiscent of Confucian ideals. China was forced to soften its hard-line foreign policy in order to participate in a global trading society. We see this again later on when we see China’s difficult accession to the WTO. Also, the pressure to institute extraterritoriality changes the dynamic of the Chinese domestic legal affairs. This, too, is similar to the ways in which multinational corporations changed the way business has been run in China in the 20th and 21st centuries.
Highpoints in the readings are: the Lady Hughes affair (1794), which documents one first conflict between the British traders and the Chinese domestic system of law. The Opium war (1839-1842) is the manifestation of an outgrowth of this British-Chinese clash. The Treaty of Nanking, as well as Wanghia and Tientsin exemplify Chinese forced concessions to Western trade. Finally, the last reading discusses the rise and eventual fall of extraterritoriality in China.
READINGS
1. Excerpt from the introduction to Jerome A. Cohen and Hungdah Chiu, People’s China and International Law (1974).
• OVERVIEW OF SINO-WTERN INTERACTION UP TO THE END OF LAST DYNASTY.
• Until mid-19th cen, China’s traditional view of world order was the tribute system. Emissaries of “lesser rules” were to pay Chinese emperor tribute. Chinese emperor would give gifts in return. Reflection of Confucian ideal of respect for authority and hierarchy. (p. 4 of doc) Europe’s 17th century trade model called “law of all nations.” (p.5 of doc)
• 1839: China attempted to apply principles of Western international law. Commissioner Lin Tse-hsu had certain pages of a French international law document, Le Droit des Gens, translated to Chinese. In these pages, it was stated that a country could stop noxious products from being imported to its territory. Lin used this provision to try to keep unwanted opium out of China. Efforts were not well-received. Opium War eventually ensued. (p. 6 of doc)
• 1861: China’s first centralized foreign office, the Tsungli Yamen, an Interpreter’s College, was founded in Peking. Used to translate Western materials and teach foreign languages to selected students. (p. 7 of doc)
• End of the 19th cen: China accepted and applied international law. (p, 9-10 of doc)
PRIMARY SOURCES Materials re: the Lady Hughes affair, 1784: Letter from Samuel Shaw; Edict to the Grand Councillors.
• Nov 24, 1784: Brit ship, “Lady Hughes,” fires customary salute and accidentally kills Chi fisherman. Conflict b/c Brits don’t want to be tried under Chinese law. Brits eventually surrender the offending gunman. Brits determine never again to allow one of their nationals to be tried for any criminal offense under Chinese law.
• Letter from Samuel Shaw - American viewpoint. Ams supported Brits.
• Edict to Grand Councillors - Chinese viewpoint. Gov Sun Shih-i should be punished b/c he did not handle matter properly. Death pen should have been enforced.
Excerpt from The Cambridge Encyclopedia of China, ed. Brian Hook (1982).
• Canton System: 1760 – 1842. Wtern merchants only permitted to trade in Canton under close supervision of the Cohong. Cohong were a guild of Chi merchants. Ch’ing state did not acknowledge imp of Wtrn trade b/c they upheld Confucian anti-commercial values.
• The Macartney Embassy: 1792. An example of an effort a foreigner made to accommodate Chinese trade customs. Special Ambassador to England, Lord Macartney, sent to negotiate with Chinese Emporer, Ch’ien-lung, concerning diplomatic and commercial relations. Britain’s substantive requests were rejected. Macartney sent home w condescending edicts for King George III. (See Emporer Ch’ien lung’s Letter below)
PRIMARY SOURCE Emporer Ch’ien lung’s Letter to George III (1793)
• Harsh rejection of Brit envoy to China. Shows Chi attitude of isolation. Flagrant language used. Brit and Wtrns referred to as barbarians.
• Quote from letter: “As your ambassador can see for himself, we possess all things. I set no value on objects strange or ingenious, and have no use for your country’s manufactures.” (first page of doc)
• Brit requests for trade concessions such as facilities for Brit ships at Chi harbors, storing and sale of Brit produce in Chi capital, request to dissemenate religion. All were refused, mostly for the sake of tradition, superiority and equal treatment to all Wtrn trading nations.
Excerpt from Hook (1982). Excerpt from Sources of Chinese Tradition, Volume Two, eds.
• The Opium War:
• The East India Company came to rely on monopoly over the production of opium for an increasing share of gov revenue. Opium was produced in India under a British gov monopoly. It was sold on the condition that it be shipped by British traders to China.
• 1839: Qing Emperor appointed Lin Tse-hsu as high commissioner in Canton with the goal of reducing and eliminating the opium trade. On his arrival, Lin Tse-hsu banned the sale of opium and asked that all opium be surrendered to the Chinese authorities.
• Late 1839: Brit gov declares war. Accuses Lin of seeking to suppress opium trade w/o due warning.
• 1842: British finally corner China into negotiating. Results in treaty of Nanking.
PRIMARY SOURCE William Theodore de Bary and Richard Lufrano (2000) (Letter to Queen Victoria).
• There was no established procedure for administration of justice in incidents involving Chinese and foreigners. Brits wanted “extraterritoriality,” or for Brit subjects to be tried by Brit judges b/c they thought Chi officials were inhumane. This conflict, coupled w Lin’s ceasing of trade, lead to Opium War.
• Lin also wrote a letter to Queen Victoria in a plea to stop Britain from trading the drug.
• Quote from letter: “Let us ask, where is your conscience? I have heard that the smoking of opium is very strictly forbidden by your country; that is because the harm caused by opium is clearly understood. Since it is not permitted to do harm to your own country, even less should you let the harm be passed on to other countries – much less to China!” (third page of document, second full paragraph)
PRIMARY SOURCES The Treaty of Nanking 1842. Extraterritorial Provisions of the Treaty of Wanghia, 1844. Extraterritorial Provisions of the American Treaty of Tientsin, June 18, 1858.
• Treaty of Nanking (1842): changed framework of foreign trade
• Foreign trade: The fundamental purpose of the treaty was to change the framework of foreign trade which had been in force since 1760. The treaty abolished the Co-Hong system (Article V) in Canton and instead five ports were opened for trade, Canton, Amoy, Foochow, Ningpo and Shanghai (II). The treaty stipulated that trade in the treaty ports should be subject to fixed tariffs, which were to be agreed upon between the British and the Qing governments (X). Tariffs became a main source of revenue for China.
• Reparations: The Qing government was obliged to pay the British government 6 million silver dollars for the opium that had been confiscated by Lin Tse-Hsu in 1839 (IV), 3 million dollars in compensation for debts that the Hong merchants in Canton owed British merchants (V), and a further 12 million dollars in compensation for the cost of the war (VI). British troops would remain until the Qing government had paid reparations in full (XII).
• Cessation of Hong Kong: The Qing government agreed to cede the island of Hong Kong to the British Queen "in perpetuity" in order to provide British traders with a harbor where they could unload their goods (III).
• Treaty of Wanghia (1844): Concedes a number of extraterritorial provisions to the US. One namely that Chinese citizens guilty of a criminal act towards US citizens will be tried under Chinese law and US citizens guilty of a criminal act towards a Chinese citizen will be tried under US law. (Article XXI)
• Treaty of Tientsin (June 18, 1858) - France, UK, Russia, and the United States were the parties involved. These treaties opened eleven more Chinese ports, permitted foreign embassies in Beijing, allowed Christian missionary activity, and legalized the import of opium.
An excerpt from Wesley Fishel’s The End of Extraterritoriality in China (1952).
• Extraterritoriality: the exercise of jurisdiction over foreign nationals by their consuls and by special courts set up for that purpose.
• British were first to assert extraterritoriality, then the US. Other Wtern nations followed.
• American consular court system: Responsibility for American law in China was given to consuls. Each consul became a judge. A court thus came into being. A total of 18 such courts were eventually established – one for each district. (p. 12 of doc for more)
• The United States Court for China: had original jurisdiction in all civil, criminal and probate cases not falling w/in jurisdiction of consular courts or commissioner’s court in Shanghai and appellate jurisdiction in all cases which had been tried first in consular courts or commissioner’s court. (p. 14 of doc for more)
• The demise of extraterritoriality
• Foreigners took advantage of extraterritoriality because it allowed them to expand commercially under their own system of law.
• Chinese also took advantage by setting up businesses in foreign residences.
• Chinese abused system by faking foreign identity for advantage in business.
• Court system was flawed. (See enumeration top of p. 218)
• National consciousness brings extraterritoriality to an end.
Class 7: Reconstruction (1)—19th and Early 20th Century Style
*note: there are no page numbers because there were none on the document. There wasn’t space to continue going through some of the historical events, but I hit on everything discussed in class
This class focused on the influence of western trade powers on China. The readings include a short chronology of important historical events and movements during the 18th and 19th centuries in China that demonstrate how China was in some ways exploited by western powers and how different thinkers proposed China address these new challenges (see the Cambridge Encyclopedia of China). One such event discussed explicitly in class was the Treaty of Nanking (1842) which opened Canton, Amoy, Foochow, Ningpo and Shanghai to western trade. This treaty was essentially a Chinese concession brought on by the Opium War (1840). In addition to opening up large ports to western trade, the British increased the amount of “free trade” with China, abolishing the Canton system and instituting a uniform set tariff (the Chinese also had to release all British subjects and any Chinese who worked with the British and got control over Hong Kong).
The rest of the readings included excerpts from dominant thinkers of the period
• Prince Kung- focused on the lack of Chinese knowledge about the outside world; most specifically the lack of any foreign language skills. He suggested that educational reform in the foreign language sector was integral to Chinese playing a role in international affairs (and trade)
• Wang T’ao- discussed the superior military (soldiers, weapons, and strategy), and finances of European powers (namely England) as compared with China. He believed that for China to be strong, it needed to learn and integrate western ideas. However, he reconciled this with Chinese traditions by asserting that western methods and systems were in fact consistent with ancient Chinese thinking
• Wang K’ang-nien- upheld the western model, suggesting that China would function better internally if the people felt empowered because they would consequently feel closer to the Emperor
• K’ang Yu-Wei- utopian visionary. Envisioned a world in which the Chinese hierarchy and other social distinctions in Chinese society (such as sex, sexual preference, etc.) would no loner exist. He suggested that the familial hierarchy in Chinese society was a convention rather than inherent in human nature. He was a strong proponent of gender equality and moral relativism. He and his friends took over the government for 100 days in 1898 (after China was defeated by Japan and had to give up Taiwan), but his radical views were not really sustainable
• Chu I-Hsin (an official who withdrew from government to teach) opposed development and the introduction of machines into Chinese working society. He was criticized the west as “barbarians” for failing to recognize and uphold hierarchical roles so integral to Chinese society. He suggested China return to fixed principles of rule rather than attempting to be expedient or focus on utilitarianism
• Yeh Te-Hui- defended Chinese institutions and ideals against western influence. He championed Confucian ethical ideals and emphasized Chinese moral superiority over the west (like Chu, he also quotes Mencius)
• Wang Chung-Hui- looked at the Chinese criminal code, noting and suggesting reforms for criminal punishment. He also noted that China should look more to the continental (European) system of law than the Anglo-American because it is more closely aligned with traditional Chinese conceptions of the family and society as a whole
• Shen Chia-Pen- wrote about the revision of Chinese criminal laws in the context of influence from the west. He made the distinction between different types of law (criminal, commercial, bankruptcy, etc.) and tried to implement a shift from punishment to rehabilitation in sentences for offenders. Specifically, he discussed implementation of a greater variety of sentences for given crimes, and different sentencing for minors/children than adults
• Sun Yat-sen- “the father of modern China”- looked to remedy the major problems as he saw them in China (lack of national spirit/social unity, weak military, ineffectual government, and inefficient uses of resources). He suggested that china give sovereignty to the people, but authority to the government. He though the transition to democracy should be slow, and that the first step was to educate the people. Lastly, he emphasized a government consisting of 5 branches: legislative, executive, “censorate”, and an independent civil servant system.
Other Important Events/People in the time Period:
• T’ung-chih Restoration (1862-74)- dynastic revival of Emporer T’ung-chih, but recovery was only temporary
• The Self-Strengthening Movement (early 1860’s)- suggested that China should “learn the superior barbarian techniques to control the barbarians” and strengthen the existing order rather than replace it
• Kuan-tu Shang-pan Enterprises (1860’s)- merchant operation under government supervision during the self-strengthening period. Capital came from private investors, but the government might provide loans and often appointed officials/approved merchants to be the head of the enterprises(resulted in lots of bureaucracy and nepotism
• Tseng Kuo-fan (1811-72)- scholar who is best known for his statements suppressing the Taiping Rebellion. He exemplified traditional Confucian virtues, but realized the need for adaptation and change in China.
• Li Hung-chang (1823-1901)- statesman and modernizer who believed that China must change in order to meet the challenge from western influence. He was integral in promoting the “enterprises” (noted above) and the Chinese educational mission to the United States among other things.
• Tsungli Yamen (1861)- a temporary office with no power to create policy but the obligation to execute new policy (from the Emperor and the Grand Council). It was influential due to its political advocates.
• Treaty Ports- by 1912 there were approximately 50 treaty ports- aka, ports that had become open to western trade due to treaties such as the Treaty of Nanking
• Tientsin Massacre (1870)- anti-foreign and anti-Christian riot that resulted in the death of 10 nuns, two priests, and other foreigners. The Chinese Government (under Li) punished the culprits and paid 400,000 silver taes for the loss of lives and propertys and sent an apology mission to France
• Sino-French War (1884-5)
• Empress Dowager Tz’u0hsi (1835-1908)
• Sino-Japaneze War (1894-5)
• The Reform Movement of 1898
• The Boxer Uprising (1899-1901)- peasants rebelled and European powers had to help China deal with it. Resulted in China making many concessions to the west.
Class 8: Reconstruction (2)—Liberalism and Marxism
In the 1st half of the 20th century, Chinese thinkers and activists sought to enlist elements of western political and legal thought in implementing Sun Yat-sen’s vision to address the problems they saw afflicting China.
We discussed 2 of these Chinese thinkers, who divided sharply on the possibility of China assuming western style liberal legality, and focused on the challenges they faced in trying to implement Sun Yat-sen’s vision. We then examined Marxism and Leninism and the reasons why they resonated as well as they did with the Chinese intellectuals, and thus how they came to have such a pivotal role in the CCP.
Other than for the Nanking Government piece, I thought there were quite a few things that Alford tried to consolidate/pull from/add to the readings, so I focused more on those things, while still trying to be cognizant of describing general ideas.
• Nanking Government: (Cambridge Encyclopedia of China) The government at the time. Established in 1927 (following purge of Chinese communists). Of the Kuomintang / Nationalist Party. Directly controlled a portion of eastern central China and indirectly controlled the remainder through cooperation of warlord allies. Fought many wars with varying parts of interior China (internal factions) and was eventually ousted by Japanese in 1937.
Saw its role as to provide political tutelage for the Chinese. Achievements: sponsored financial reform (developed paper currency); developed communication network, roads, rail & airlines; expanded educational opportunities; regained tariff autonomy for China (although a few foreign privileges and treaty port rights remained). Critiques: little benefit to peasants; reliance on customs & urban taxed impeded modernization; militaristic style (high costs).
• Liberalism
2 eminent Chinese thinkers diverged sharply in their sense of the possibility of implanting western style liberal legality in China.
Ch’ien Tuan-sheng: sides w/ the communists. Says that there liberal legality has no place in China.
John C. H. Wu: sides w/ the nationalists; faith that law can solve China’s problems.
Challenges to implementing Sun Yat-sen’s vision:
a) practical challenges: There was the formation of a national assembly which could dismiss the President, makes new laws and gave the people power.
b) Coordination/implementation challenges: personnel (sufficient bar and bench?); judicial independence; relationships between the various branches of government; many hurdles in introducing a new legal system (80% illiteracy in countryside, wars, many counties without courts or lawyers); adaptability of foreign legal models; legitimacy of legal system (are there underlying moral or spiritual values?)
Roscoe Pound: less of a formalist. Sought to use the law to solve problems. Becomes a legal advisor for China after his tenure as HLS dean. He weighs the competing values of China and the West. Suggests that in establishing a legal system in China, there needs to be some fidelity to who the Chinese are as a people. Can’t just blindly adopt the West’s methods. Advocated for a dynamic legal system that was ever changing and adapting. Recommended building the legal system using the precepts of China’s history (establishes familiarity between the system and the Chinese), using history as the foundation, and fine-tuning with comparative law.
• Marxism (Leninism)
Marx & Engels’ ideology: Sees the evolution of history as a struggle between the classes and that history develops from feudal societies to capitalism to communism as the proletariat (working class) comes to rule society. What defines society is the means of production (e.g. feudal vs. industrial) and the relationships of production (e.g. capitalist vs. feudal lord). Driving force of society is economic. Law is part of the superstructure. They saw the state reflecting the underlying economic strata, i.e. the ruling, landed class using the state to keep them in power. There was formal equality, but not substantive/actual equality.
Views on China: Interested in how interactions between China and the West will impact Western capitalist society. He thinks that cutting edge advancements won’t be made in China, but rather will be limited to the West. He thinks China will have a role, albeit a small one. Also, he thinks that revolution in China will decrease the amount of Chinese goods on the market thereby exasperating the differences between the industrialized west and the unindustrialized China.
Lenin’s ideology: Builds upon the ideas of Marxism.
a) views on the nature of the state and law: He thinks the state is only needed presently to resolve conflicts between the classes, and as you move towards communism then the need for the state evaporates. He sees the state and the law as an instrument of oppression. The proletariat in socialism will develop socialist legality to benefit their classes.
b) views on the role of the party: the party is seen as the vanguard of the proletariat. Their role is to radicalize and build the working class and enable revolution. The party has to be disciplined and unite tightly and are comprised of a small elite.
c) views on the nature of imperialism as the highest state of capitalism: The underlying theory posits that communism is a higher evolutionary form than capitalism. This is contrary to the advancement of capitalist USA. He resolves the discrepancy by saying that the class struggle is simply transposed to 3rd world countries. The proletariat in the 1st world countries are essentially bought off, and as such don’t revolt. They don’t realize that they’re still being oppressed since they are benefiting from the leveraged 3rd world countries.
Leninism really resonates with Chinese intellectuals in the 1920’s and 1930’s.
o The Chinese were suffering from an inferiority complex with respect to the rest of the world at this time. They saw Lenin as explaining how China’s position resulted from exploitative economic structures and not because of anything inherent in Chinese culture.
o Russia became a role model as embodying Leninism and making radical, fast advancements. They used to be oppressed, but became powerful.
o People were desperate and were more welcoming of radical ideas. They wanted major changes and Lenin promised inevitable success.
o The targets of frustration of Lenin (and Marx) were the same as those of the Chinese, namely the US and UK.
o Although China has only a small role in the overall scheme, it’s still a [special] role.
Class 9: Reconstruction (3) and De-construction—Cultural and Other Revolutions
Summary: (1) A Brief Overview of the Cultural Revolution (CR): (This overview draws mostly from the Albert Chen excerpt and Alford’s lecture.) In 1966, after the failure of the “Great Leap Forward,” Mao had to find a way keep power away from the pragmatists, a group led by Liu Shaoqi and Deng Xiaopeng, who advocated a less ideological approach. Mao was able to frame the struggle by branding his enemies “counter-revolutionaries” who threatened the completion of the revolution. The CR was characterized by widespread civil chaos. Mass demonstrations were held to denounce counter-revolutionary culture; struggle was waged against elements of the capitalist “superstructure”—religion and traditional customs were targeted. The movement was spearheaded by students waving their Little Red Books and fighting their parents and teachers. Many cultural sites and treasures were destroyed in the fervor. Many “counter-revolutionaries” were rounded up by the crowds and subjected to mass public trials. Mao did not play a day-to-day role in the CR; the main leaders of the CR were the so-called “Gang of Four”—a group that included Mao’s wife. Although the worst of the CR ended in 1969, it was not until Mao’s death and the arrest of the Gang of Four (both in 1976) that China began to move on from the CR. (2) The Role of Law in the CR: During the CR, the rule of law was sharply criticized. Articles in major Chinese newspapers praised lawlessness, arguing that the legal system was “feudal, capitalist, and revisionist.” Many legal institutions were suspended. The police and legal apparatus were in some cases active participants in the lawless struggle against the “enemies of the revolution” and, in other cases, passive observers (they were told by Mao not to stop the crowds and demonstrations). (3) The end of the CR and its enduring influence: Emerging from the CR, China sought to distance itself from the CR’s destructive lawlessness. The trial of the Gang of Four was an attempt (if flawed) to reestablish a sense of legality and stability in China. Politically speaking, after the CR, the pragmatists won and came to power. Rule of law became an important part of the overall movement toward development as the goal of government.
1. Excerpt from The Cambridge Encyclopedia of China, ed. Brian Hook (1982).
This one-pager discusses how the early (pre-CR) PRC dealt with five main problems (establishing authority, controlling inflation, restoring the economy, redistribution of land, and defining China’s international position).
1b. Excerpt from Albert H. Y. Chen, An Introduction to the Legal System of the PRC (1992).
Chen provides an account of how the Chinese legal system ebbed and flowed from the establishment of the PRC (in 1949) until the CR. Main points:
• The establishment of a “socialist” legal system required dismantling the old colonial system (24). Old laws and codes were abolished.
• Early PRC laws helped implement the Mao’s communist plans (25-27).
• There were some opportunities for a legal profession to emerge (and support a rule-of-law society), but ultimately, in the lead up to the CR, legal institutions “were merged with public security institutions. And outspoken lawyers were persecuted (27).
2. Excerpt from Mao Zedong, “On Correctly Handling Contradictions Among the People,” 1957.
This is Mao’s famous speech outlining his views on conflict in society:
• He describes two kinds of “contradictions”
o (1) contradictions between “the people” (those who support socialism) and “enemies” (those who oppose it)
o (2) contradictions among “the people” themselves (i.e. peasants vs. workers)
• “the enemies” don’t deserve the same protections as the “the people” (Mao 313)
o “The people” need to exercise “dictatorship” over the enemies
o Thus, counter-revolutionaries should be denied rights like freedom of speech
• But among “the people,” there should be “democratic centralism” (313)
o “freedom under leadership…democracy under centralized guidance”
3. Excerpt from Chen (1992).
This excerpt provides a good overview of the CR. It is summarized above.
4. “Completely Smash the Feudal, Capitalist, and Revisionist Legal System” (1966). People’s Daily, “In Praise of Lawlessness” (1967).
Two CR-era editorials. Alford wanted us to “absorb their flavor”—so here are the highlights:
• These articles present the view of law as an instrument of capitalist oppression. Legal processes and rights are seen as tricks used by capitalists to remain in power.
• In “In Praise of Lawlessness,” the law is put in direct opposition to the revolution. Law “is designed to suppress and persecute the people.” As such, being lawless is the ideal.
• The articles encourage the public to take direct action against “counter revolutionaries” because the law enforcement mechanisms cannot be trusted.
“Self-criticism of Kao K’un-feng: [Self-] Examination by Kao K’un-feng, a Capitalist and the Former Chief Justice of the People’s Municipal Middle Court” (1966).
This is an example of a “confession” given by a “counter-revolutionary” during the CR.
5. Zhu Yuanshi, “The Causes of the ‘Cultural Revolution’,” Beijing Review (1981).
A piece written after the CR by a party official, trying to understand what happened without criticizing Mao too much. The author lists several factors that contributed to the CR.
• Mao’s “mistake in leadership:” Mao overreacted to criticisms of his failed programs and mistook them as counter-revolutionary.
• The CCP was not “adequately prepared, either ideologically or in terms of scientific study, for the swift advent of new-born socialist society.” (Marx was misinterpreted)
• By tradition, China is culturally and historically susceptible to autocratic rule and the members of the Gang of Four were able to exploit that tendency for their own benefit.
6. Fei Hsiao Tung, A Great Trial in Chinese History: The Trial of the Lin Biao and Jiang Qing Counter-Revolutionary Cliques, Nov. 1980 - Jan. 1981 (1981). Excerpts from Office of the United States Chief of Counsel for Prosecution of Axis Criminality, “Nazi Conspiracy and Aggression” (1946). Hannah Arendt, Eichmann in Jerusalem (1964).
These readings relate to the trial of the Gang of Four. Alford included Justice Jackson’s opening address from Nuremberg and an excerpt from Arendt’s Eichman in Jerusalem for comparison.
• The Gang of Four was brought to trial in 1981 in a Special Court Under the Supreme People’s Court authorized by the Standing Committee of the Fifth NPC.
• The piece by Fei Hsiao Tung discusses the author’s role as a judge (like many of the judges he is an academic without legal training). He notes the fact that never before had China held a national leader accountable in this way. He sees the Gang of Four Trial as “a tremendous step forward.” The author distinguishes between “political mistakes” (which were made by many in the party, including Mao, and may not deserve legal punishment) and the criminal liability of the Gang (who exploited for personal gain the circumstances arising from the CR).
Class 10: Reconstruction (4)—Late 20th and Early 21st Century Style
These articles provide an overview of the challenges and goals of the Party leadership after the cult. Revol. & give insight into the opinions of those who disagreed with the route taken by the leadership of the time.
1. Excerpts from Tony Saich, The Governance and Politics of China, Second Edition (2004)
• Reform efforts liberalized party control over the economy & society, but maintained the one-party rule. In attempts to dismantle the personality cult that Mao Zedong created the Party promised a bright economic future for all w/in a relatively short time frame.
• Economic priorities were reordered placing agriculture & light industry ahead of heavy industry (heavy industry would only receive enough funds as necessary for it to adapt to the needs of the other sectors)
o Reversing the policy of the Cultural Revolution, farmers were given the green light to work private plots & engage in sideline production.
o The leaders of China were faced with the dilemma of how to boost productivity w/o increasing state spending. The answer was in the farmers themselves launching the reforms by abandoning the collective and moving away from production quotas & focusing on the household as the basis of production (and contracting) (called ‘production responsibility system’) It’s clear that the central authorities were being led by grass roots level developments
• Egalitarianism was attacked as a notion that retarded economic growth. And there was an unprecedented opening to the outside world in search for export markets and the necessary foreign investments, technology & higher-quality consumer goods. Change was rapid & dramatic in the rural sector, moderate in the urban sector, & political reform was ineffective & ultimately divisive.
• Political Reform: 1978-80 was a high time for suggestions for political reform. To the Vice Chairman of the Party (Deng Xiaoping), it was necessary to ensure that the people as a whole enjoyed the power of supervision over the state in a variety of effective ways. In particular, they were to supervise political power @ the basic level, as well as in all enterprises & undertakings. But this promise of extensive reform wasn’t combined w/ sufficient substantive change & many intellectuals & students were frustrated. The substantive change was ruled out by the refusal of senior party leaders to accept structural reform that would lead to a redistribution of power to other groups & orgs. The experiences of the Hundred Flower, the Great Leap Forward & the Cultural Revol. Led leaders to be suspicious of participation that wasn’t directly controlled by the Party. The Party ultimately defined the limits on what was acceptable political reform. Deng put forward a slogan of “adherence to the ‘Four Basic Principles” which promoted the leadership of the party & adherence to socialism.
o After the Gang of Four were sentenced (1981) there was an official resolution on party history that was adopted which was critical of both Mao & the Cult. Revol.
• In 1985, the abolition of mandatory grain purchases caused prices on the market to drop & forced many farmers back into grain production which they resented b/c they wanted to maintain their new-won freedoms. Production quotas for grain were re-imposed & the attempts to dismantle the state monopoly over distribution were effectively abandoned.
• There was opposition to the far-reaching reforms by several groups, one of which included Peng Zhen: he feared corruption & argued that there would be strong consequences of the liberalization on the social fabric of China. He believed that the party needed to reaffirm its leading role in the realm of ideology because socialism has moral & spiritual goals as well as material goals & only the party could define those goals. These leaders felt that it was the party’s role to dictate the nation’s ethical & moral values.
• Urban anger increased with the higher visibility of official corruption. Student demonstrations were heavily supported by the urban citizenry (they sought more democracy for the people) & the Party was divided on how to respond to the peaceful student demonstrations. (Tiananmen Square Protests). The Party didn’t want to respond b/c they refused to recognize autonomous groups w/in the country.
o In June 1989- a widely publicized campaign against official speculation & corruption was launched. A 7point program addressed issues such as closing down firms that had engaged in potentially corrupt activities, limiting perks derived from official positions (travel abroad, entertaining, special supply of scarce goods, etc.) and 1 of the student’s main demands was met when Deng Xiaoping stepped down from his last official position.
2. Excerpts from Peng Zhen’s speech to the Party’s central school, “Several Questions on the Socialist Legal System” (1979)
• Peng focuses on the importance of having a socialist legal system as the legal system of democratic centralism. He says that democratic centralism represents China’s system of government. He uses the example of what happened under the rule of Lin Biao & the ‘gang of four’ (Biao was free to punish anyone he wanted, frame anyone, imprison anyone, etc.) when there was NO legal system. He says that the socialist democracy cannot exist w/o the socialist legal system. He notes that the laws made since Gang of Four will make it more difficult for that type of occurrence to happen again (now other than public security, procuratorial & law enforcement organs, no person or unit has the power to detain or arrest people).
o Everyone is equal before the law-‘the law we want is the proletarian or the socialist law before which everyone is equal’ p. L5
o The procuratorate & the Court exercise their functions independently & obey only the law
• The procuratorial organ and the court work independently & there’s a system of checks & balances (if the procuratorial doesn’t agree w/ the court’s decision, for example, it can object to it)
• The Procuratorial Organ & the Court must act according to facts & the law so that unified observance of the same law insures unified proletarian leadership over the whole country. The Party’s role is to guide the judgments of the courts to ensure they are based on the facts & the law.
o The stability of the Law- if laws are inappropriate to given conditions they should be changed (flexibility)
o The Party Committee’s Leadership- call for unified party leadership which must make proper investigations & studies, review work, and must lead, supervise, & support the independent public security, & the functioning of procuratorial & law enforcement organs.
o Paying attention to studying Law- To understand law you must study law. Law must be studied by the secretary of the party committee, book by book.
3. Li Buyun, “Certain Questions Concerning the Relationship Between Party Policies and State Laws” (1984)
• Conclusion 1: the laws of the state must be guided by the policies of the party; however, the policies of the party can only guide the laws in principle, not take the place of the laws.
o The law has certain characteristics of its own & plays a role that is absolutely not replaceable by the party’s policy. Some of those characteristics: law represent the will of the state, compulsory enforcement, the norm of conduct & relative stability.
• Conclusion 2: Once a law is formed, it has a more extensive & stable application than that of the policies of the party both in scope & in time.
• Conclusion 3: the party must operate w/in the limits of the Constitution & the laws.
o When the party’s policy is contradictory to state law: ‘when contradictions arise we must act in accordance w/ the law. Whenever there are laws, we will follow them. Only when there is no law for us to follow, we will follow the policies.’ P. 35 ‘The party is a part of the state, is in the state & doesn’t place itself above the state’ p. 36
o The links & distinctions b/w party & state policies: “in order to exercise the leadership of the party in our country, the party’s policies in accordance w/ actual needs must, as a usual practice, be recognized as policies of the State by organs of the State. Therefore, the policies of the party & that of the state are closely linked w/ each other & are inseparable. However, the party must not replace the organizations of the state in exercising the functions & power of state organs equal or else it will be as if the party takes the place of government.” P. 36-37
4. Introduction by Stephen Angle to Wei Jingsheng and his writings: in 1978 a more relaxed & optimistic political atmosphere developed & the new political leadership was determined to restore law& order & rebuild the legal system. A new constitution was adopted in 1978 & the first Criminal Code was put out the year after. Wei Jingshen was one of the most radical human rights advocates during this period- he was critical of the conditions of a Prison which housed many political prisoners (and critical of Deng Xiaoping & socialism as a whole). He himself was arrested when a crackdown on the democracy movement began. He was sentenced to 15yrs on charges of counterrevolutionary activities & leaking military secrets to foreigners.
5. Excerpt from Wei Jingsheng, “The Fifth Modernization” (1978); excerpt from Wei Jingsheng, “The Rule of Law and Democracy.”
• Wei argues that the old political system hasn’t changed because talks about democracy & freedom is forbidden. He advises that the people do not believe the political hype anymore & that they figure out for themselves what should be done. He suggests:
o “we must reject the dregs of Confucianism…the fantasy that tyrants can ever be persuaded to practice benevolent government. But the essence of Confucianism, which we do want to keep, is the concept that people are born w/ equal rights.”
o “a benevolent government” is only a means to an end, and that end is the realization of human rights which can be achieved only by democracy.”
o He argues that the Marxist socialist experiment of using dictatorship to achieve equal rights has been shown to not work & that “dictatorship of the majority” is a Utopian dream b/c anytime power in a dictatorship power is bound to fall into the hands of a few ( & therefore used to control the people)
• Wei contends that ‘the people must attentively watch the progress of lawmaking & be sure that the law being adopted is the kind of law designed to protect equal rights.”
2. Shen Yuanyuan, “Conceptions and Receptions of Legality: Understanding the Complexity of Law Reform in Modern China,” The Limits of the Rule of Law in China, eds. Karen Turner et al. (1999).
• Initially after the cult. Revol. Efforts at law reform were called the ‘legalization movement’ which was primarily aimed at fostering economic modernization.
• Some of the problems China has faced in its law reform:
o Although Chinese govt had moved from a centralized, planned economy, it hadn’t yet managed to create a legal structure that could sustain a mixed economy. Ex: china didn’t have a single law regulating business orgs so significant parts of the urban economy operated w/ few regulatory restraints & it led to chaos, corruption & massive consumer fraud.
o Many newly enacted economic laws didn’t serve their function b/c they didn’t appropriately address these problems: ex: under the centrally planned economy, Chinese enterprises weren’t provided w/ the degree of freedom of contract that a market system requires.
o China’s success in implementing law must be questioned. The failure of law to transcend politics is evident when the enforcement of law conflicts w/ the Party’s authority. Party officials’ interference w/ judicial decisions has continued.
o Enforcement problems; Law is intended to function as an instrument of Party control.(this is idea can be traced back to the Confucianists’ times)
o Law as a restraint on Government Power: Under this structure Gov’t is seen as subject to law. China’s difficulty in attaining this type of legality is attributable to its political structure: the “party dominance” features a charismatic domination that justifies the authority of the Chinese Communist Party. Under this structure, law is accepted by the people b/c it originates from Party leaders who promise social progress rather than b/c it’s a result of rational enactment. Local officials have no incentive to direct their loyalty to law instead of policy b/c their power & prestige comes from their roles as policy makers rather than as law enforcers.
o Law as Formal & Procedural Justice: China’s legal processes fail b/c of a lack of commitment to formal rationality or formal & procedural justice. Formal Rationality= measures the extent to which the criteria of decision are intrinsic to the legal system, including all rules, procedures, & decisions, & can be deduced from the legal system itself. Weber observed that China’s unique social structure & political organization discouraged the emergence of formal rationality b/c the traditional Chinese political structures is “patrimonial” & law couldn’t have formal rationality b/c the need to legitimate charismatic authority impeded law’s rational operation. P. 32.
Unit III: Institutions, Processes, and Personnel
Class 11: It’s (Communist) Party Time!
Executive summary
This class focused on illuminating the nature of the Communist Party of China its functions and role vis a vis the Chinese state/government. The readings suggest that the CCP IS the government and it is the dominant influence over everything political, judicial, and executive (if there is a difference between the three) :-).
People’s Daily, “The Communist Party of China (CPC) Official Introduction
The CPC describes itself as the “sole party in power in China.” And it is. It also describes itself, respectively, as the “vanguard of the Chinese working class, the faithful representative of the Chinese people of all ethnic groups, and the core of leadership over the socialist cause of China.” It subscribes to a philosophy of “democratic centralism,” which means that there is some freedom, but within strict bounds, for individual party members to espouse differing opinions. Ultimately, each individual party member is subordinate to the Party Organization. Structurally, the Party is similar to hierarchical imperial China. Party organizations at “a higher level” are expected to receive complaints from lower level organizations, listen to their opinions, and solve all problems “without delay.”
The leading organ of the Party is the National Party Congress and the Central Committee is elects. Anyone 18years and above may apply for membership, but Party committees also directly “accept” members – often government officials or other civil society leaders co-opted into joining the party.
Excerpt from Colin Mackeras, The New Cambridge Handbook of Contemporary China (2001)
This reading deals with the party and political structure in contemporary China. It highlights the dominant role of the CPC in the Chinese political scene – the CCP structure extends all the way down to the very lowest level. Mackeras also highlights the increasing levels of corruption (since the Cultural Revolution and the beginning of economic reforms) within the CCP and the efforts by the party to curb it. These efforts have largely involved expelling Party members for corrupt practices (40,000 expelled between 1983 and 1986; in 1987 109,000 were expelled). The Party has also prosecuted and condemned corruption through the courts, including targeting some very high profile party members for prosecution. The SPC has gone as far as to sentence embezzlers to death or life imprisonment and others to prison terms (including party members). The measures seem to have had very limited deterrence value as corruption continues to increase within the Party. The CCP also has a body with the primary aim of curbing corruption: Central Discipline Inspection Commission.
Excerpt from Zhu Suli, “Political Parties in China’s Judiciary,” Duke Journal of Comparative and International Law (2007)
This very interesting article emphasizes the inextricable link between the CCP and the Chinese state. Suli notes that government officials often serve concurrent roles within the CCP organization at that level. To Suli, it is impossible to distinguish between political influence from the CCP and that from other sources because CCP influence permeates everything, consciously or unconsciously. Suli goes further to question the value of making this distinction (between CCP influence on government and the legal system and influence from other sources), pointing out that the current state of China and the judicial system is largely due to the modern revolution and economic development led by the CCP. He questions the Western assumption that political influence on the judiciary is necessarily a bad thing: “I do not see why the legal perspective is necessarily more moral and more reasonable than the political perspective, and why the juridical position should always be privileged over the political position.” To these questions one might add: aren’t judicial stances often political ones, even in the United States? Suli points out that in Western countries, judicial independence is often guaranteed by party politics. [Think of judicial appointments by administrations held by differing parties, opposition to the legality of the war in Iraq led primarily by Democrats, etc] Suli ends the article by asserting that the party’s objective is social transformation and forces his reader to consider what the alternative to the CCP might be. In other words, would abolishing the current system of CCP leadership make China better off or make it develop faster in the future? Essentially, he wants to do a cost-benefit analysis: weigh the benefits of the CCP against its disadvantages. E.g. “In the absence of alternative institutions that are not yet fully in place during this time of social transformation, to some extent Party control has limited the corruption, laxness, and partiality of the judiciary.”
Dr. He Baogang, “How Democratic are Village Elections in China?,” presentation to the National Endowment for Democracy (2003). Congressional-Executive Commission on China, “Chinese Village Elections” (2004)
These articles discuss village elections in China. Village elections were initially introduced in 1978 and subsequently conducted on a trial basis from 1988 onwards. These elections were initially viewed as a tool to restore some legitimacy to Communist rule, curb rural instability, and more effectively control the over 900,000 Chinese villages. Elections helped to identify popular local leaders who could be co-opted into the Communist power structure (see above on CCP membership). However, by 2003, these elections seem to be taking on a life of their own and involved approximately 3.2million village leaders in over 700,000 villages. Yet observers note the absence of any form of party politics at the local level (elections are restricted to between individuals only) – only the CCP is present as a party at this level.
Interesting developments regarding village elections (Dr. He article)
✓ Issue of village citizenship becoming increasingly important as peasants who have moved out of villages (particularly ‘married-out’ women) demand the right to vote in their native villages
✓ Changing conception in peoples’ conception of a good election. Initially an election was considered good if there was no violent confrontation, disturbance, or kinship fighting. Recently, people are more interested in ensuring that there is meaningful competition and that elections follow a set of sound procedures
✓ Unfortunately, women’s issues still absent from campaigns
✓ View that village elections, while allowing greater legitimacy for village heads vis a vis party leaders, are consolidating CCP’s rule as CCP leaders may claim some legitimacy through these elections
✓ However, there is recognition that village elections are paving the way for a democratic transition. Some villages have even introduced direct elections for the part secretary in response to the increased legitimacy created by elections of the village chief
✓ Elections are evidence of significant transformation occurring in present-day PRC. National Party refuses to share power, but village party receptive to representative institutions and democratic procedures. Dr. He suggests that a local-to-national model of democratization is perhaps the most appropriate framework for understanding China’s transition.
Kellee S. Tsai, “China’s Complicit Capitalists,” Far Eastern Economic Review (2008)
Woodrow Wilson School of Public and International Affairs, Princeton University, “The Chinese Communist Party: Bent, But Not Broken,” event summary (2007); Xinhua, “Official: Communist Party inspectors play key role in fighting corruption” (2007).
Xinhua, “Chen Liangyu expelled from CPC” (2007). Melinda Liu and Jonathan Ansfield, “A Princeling of the People,” Newsweek (2007).
These articles note the tensions and challenges China and the ruling Communit Party face.
✓ CCP has been fairly successful in co-opting new business elites. 35-40% of private entrepreneurs are Party members – Red Capitalists
✓ U.S view that with increased economic interaction and wider economic ties, China would move further and further towards democracy. However, the CCP is still very much in control and its monopoly on political power does not appear threatened
✓ One of the most important areas of Party activity is in human resources – who to select, who to promote, etc. Corruption is a huge problem here too. But there have been important reforms in this area including mandating public announcement of available positions. Also, voting to select a candidate is done by a show of hands – historically done in secret. Yan Sun (Princeton even summary) argues that corruption may be inevitable in a personnel system that is non-competitive. She also notes that it is generally very difficult for corruption to flourish at the center/in ministries – more corruption generally toward the interior and at local government levels
✓ Melanie Manion (Princeton conference) notes that party leaders are aware that their rule is undermined by poor leaders so they strive for excellence. It is now policy to strengthen the CCP by empowering local legislatures to monitor local government leadership.
✓ These developments evince a willingness to sacrifice some power in return for more legitimacy for the CCP (smart move on the part of the Party)
✓ Populist vs elite factions within the CCP leadership circles…
Excerpt from Xinhua, “Full Text of Hu Jintao’s report at 17th Party Congress” (2007)
This speech announces a new commitment of the CCP to develop “socialist democracy”, promote political restructuring, and adapt to the “growing enthusiasm of the people for participation in political affairs. President Hu also pledges to “develop primary level democracy and ensure that the people enjoy democratic rights in a more extensive and practical way.” Finally, he pledges to “comprehensively implement the rule of law as a fundamental principle” as well as to reform the administrative system and “build a service oriented government.”
Class 12: Of Constitutions and Constitutionalism
Executive Summary:
The readings for this class centered on the Chinese constitution of 1982, its development, implications and effects. The first article introduces the constitution and provides a context in which to regard this document. The Chinese constitution represents a stage in the progression of Chinese legal development. It is suggestive of a compromise between strict socialist ideals and the need for the development of a rule of law to accommodate the growing need to greater individual rights as China’s market economy develops. Though initially discounted as a purely political document with little legal force, the Cai article informs us that recent years have seen a surge of public interest in constitutionalism. It cites the growth of the market economy and the subsequent interest in property and other individual rights, as well as increased political scrutiny by the press as motivating factors behind the public demand for the rights and freedoms guaranteed under the constitution. The remaining articles provide examples of cases that highlight the increased significance of the constitution with the legal sphere.
1. Excerpt from Yash Ghai, Hong Kong’s New Constitutional Order (1997).
The degree of influence that a constitution has on the exercise of political power in a country is often questionable. Even in western countries, which often place a high value on constitutionalism, the constitution sometimes provides little more than a framework for the application of political power, and the espousal of political values.
Liberal democratic constitutions are based on the theory of the social contract. Implicit in this is the notion of separation between the state and civil society. The contract serves to limit the power of the state and prescribe the means for its application so as to preserve the rights of civil society. It uses separation of powers, democratic principles, and judicial review to achieve these aims. Certain values are validated by the constitution and these are used to create a framework of laws. The rule of law is the governing ideology, and the values that are chosen to create the laws are specifically geared towards promoting a capitalist market economy.
Socialist constitutions are literally that: a series of constitutions drafted to reflect the changing times and areas of focus in the progression towards a truly communist state. The first constitution (post-revolution) will be strong on ideals (mainly espousing Marxist/communist principles) but weak on institutions. As a result much of the institution building required to rebuild society in the wake of a revolution will take place outside of the scope of the constitution. The next constitution takes into account the political and economic progression that has taken place and attempts to consolidate them in an effort to plan the next steps of the progression. With each new constitution the socialist principles are further legitimized as equal rights and full citizenship are granted to the people.
Liberal constitutions shy away from a consolidation of political power while socialist constitutions embrace it. This is evident in the liberal constitution’s emphasis on the separation of powers, while the socialist constitutions acknowledge the monopoly of the party.
Early Chinese constitutions progressed in much the same way as suggested above. Notably, however, the death of Mao Zedong in 1976 left room for greater influence from the pragmatists. As a result the 1978 constitution emphasized economic development and stability. The 1982 Constitution represented a significant change from previous constitutions, however. The constitution is made binding on all persons including the communist party. The NPC’s supervisory role is firmly established and a limit of two terms is implemented for its key posts. The rule of law and decentralization of the government receive unprecedented emphasis which is somewhat in conflict with traditional socialist ideals. The force of the constitution is located in the preamble as opposed to the actual provisions as many of these require implementing legislation to give them the force of law. The preamble, however, describes the principle aims of the constitution and the system and method of rule for achieving them.
2. The Constitution of the PRC (1982) [we are asked to focus on the preamble, Articles 1-6, 19-32, 33-56, 57-58, 62, 67, 126, 135, and the bracketed parts of the Amendments that follow the original text of the 1982 Constitution.]
As indicated above the preamble is the most important part of the document. It discusses the history and founding of the PRC and then discusses at length the goals for the nation in the years to come in its progression towards socialist modernization.
The articles then lay out the responsibilities of the people and the state. In doing so they promote ideals of equality in rights and status for all people, and state development of the country through progressive steps regarding technology, literature, art, agriculture, education etc.
3. Excerpt from Ran Hirschl, Toward Juristocracy: The Origins and Consequences of the New Constitutionalism (2004).
Hirschl noes that scholarly discussion of constitutionalism often focuses on the US constitution and process of judicial review as though it were all that is to be considered. He reminds us that not only is the US constitution not the only constitution worthy of consideration, it is perhaps not the most helpful in terms of critiquing constitutionalism because there is little basis for comparison to a previous system in the US context. In countries that have more recently constitutionalized rights and established judicial review, we can more easily observe the effects of these changes.
Hirschl uses examples of such countries to illustrate his six scenarios of constitutionalization:
• The reconstruction wave: constitutionalization as a result of govt. reconstruction post WWII. Eg. Japan
• The Independence scenario: constitutionalization as a result of gaining independence from a colonizer. Eg. India
• The single transition scenario: adoption of a constitution as a part of transition to a democratic regime. Eg. South Africa
• The dual transition scenario: constitutionalization as a result of transition to democracy and to a market economy. Eg. Poland (and other post-soviet countries)
• The incorporation scenario: constitutionalization comes as a result of the incorporation of international law into domestic law. Eg. Denmark
• No apparent transition scenario: Constitutional reform has come with no apparent change in political or economic regimes. Eg. Mexico
4. Dingjian Cai, “The Development of Constitutionalism in the Transition of Chinese Society,” Columbia Journal of Asian Law (2005).
Cai explains a series of phenomena that have taken place in recent years in China that are indicative of Chinese citizens quests for human rights and democracy and suggests that these are to become the bases of constitutionalism in China:
• Ordinary citizens registering to be candidates for election to positions as representatives.
• Current representatives are more accountable today than in previous years due to more voter influence and less party appointment, as such they are now increasingly responsive to the will of their constituents.
• Greater public participation in administrative and legislative hearings.
• Media oversight of political and legal processes has stimulated public interest, and subsequently public influence over these various processes.
• Review of constitutional rights has become more prevalent since the 2001 Qi Yuling case[3]. This case opened the door to constitutional litigation in China, indicating that the Supreme People’s Court (SPC) was willing to protect constitutional rights via adjudication. Prior to this the constitution was merely regarded as a political document as opposed to means for the protection of citizen’s rights.
• Similarly anti-discrimination law suits have also been used to promote constitutionalism as these suits are based upon the protections against discrimination that are found in the constitution but were previously not acknowledged as significant.
• Establishing a rule of law government. This includes greater transparency in the government and greater accountability of government officials to the public.
• Increased auditing of administrative agencies and central government departments as a means of increasing scrutiny and ensuring that duties are being carried out in the interest of the people.
Class 13: Making Law for the Nation
Executive Summary
China is a unitary state with a legal system that blends feudal traditions, communist ideology, and Western legal norms. Cohen says, “The problem is not…that China lacks law—it is that China has too many rules and regulations at too many levels with inadequate systems of prior checking, supervision and annulment.” (370) As you review these summaries, consider the what reforms you’d suggest for China given the challenges posed by China’s hierarchy of legal norms, the lawmaking function of both the NPC and its Standing Committee, the Law on Legislation, and PRC’s organization as a unitary state.
Creation and Application of Law in the PRC by Peter Howard Corne
• All major legislation should originate from central power organs, though in practice much legislation comes from local govts., esp. given China’s size and diversity.
• Two official lawmaking organs:
o legislatures (aka state power organs or guojia quanli jiguan, i.e. National People’s Congress, Standing Committee, and local people’s congresses of provinces, municipalities, and big cities)
o administrative organs (aka xingzheng jiguan, i.e. State Council, its departments and commissions, local people’s governments at same level as the local people’s congresses, provincial capital governments.
▪ can be entrusted with legislative power (372) or specially conferred power (373)
• “Unofficial” lawmaking also done by central and local government departments.
o Poor delegation of power doctrine. (370) Admin. organs given unlimited discretion, but always subject to revocation by legislative body at the same/higher level, or by a higher admin organ.
• Chart p. 372 -- explains different types of legislation (e.g. basic law v. law)
• Legal drafting – laws often vague, ambiguous, broad, general etc. to preserve socialist values of short-term flexibility and fluidity in application (374)
o Uncertainty hinders long-term economic development and enforcement.
▪ Laws are never struck down on the basis of uncertainty.
▪ Implementing authorities left with too much discretion. (376)
▪ Little procedural law to act as safeguard. (Id.)
• No underlying principles of fairness, natural justice, or due process. Difficult to review for abuse of discretion. Courts rarely overrule admin. decisions on procedural grounds to help the agency “save face.” (377)
• NPC trying to bring greater “stability” to the law. (375) But there is little popular input into lawmaking.
o NPC = highest legislative authority; elected 3,500 member body that meets once a year
▪ revises Constitution, creates “basic laws”, issues resolutions, etc.
▪ delegates elected through provincial people’s congresses from a CCP-approved list of nominees
▪ delegates usu. have an elite perspective (i.e. don’t represent the general constituency)
▪ CCP control over party legislation has waned, though still can be felt. (380)
▪ Elites at all govt. levels get to put their input into NPC proposed legislation. (379)
o Standing Committee = elected by NPC, 130[4] people, meets every two months
▪ enacts “law”, creates regulations, issues resolutions, and may revise NPC’s basic laws
o NPC drafting institutions are NPC Law Committee and Legislative Affairs Commission (378-79)
o NPC also elects the State Council (admin organ), the head of nation’s executive (381)
▪ possesses legislative and executive power
▪ empowered by Art. 89 to adopt administrative measures, rules, regulations, and decisions
Resolution of the Standing Committee of NPC Providing An Improved Interpretation of Law (1981)
These guidelines were issued to “improve the socialist legal system” in response to requests from various localities for the interpretation of NPC laws. Excerpts include:
• “...Standing Committee of NPC shall provide interpretations or make stipulations by…decrees.”
• “Specific application of laws and decrees in court trials shall be provided by Supreme People’s Court.”
• “Specific application…in procuratorial work…shall be provided by Supreme People’s Procuratorate.”
• “If interpretations from SPC and SPP…var[y]…Standing Committee [will interpret or decide].”
• (For locally enacted rules and regulations) “Standing committees of people’s congresses of the provinces, autonomous regions, and municipalities shall provide interpretations…”
• Because of the “serious sabotage of the socialist legal system caused by…Lin Biao and Jiang Qing…state institutions at all levels and all people’s organizations should do more to publicize and educate people in the socialist legal system…in a planned way with actual problems in mind, using typical case studies, so that…basic legal knowledge can gradually be popularized. [Also]…law-enforcement personnel in public security organs, procuratorates, and courts should be educated…[to] observe and correctly apply laws, handle disputes…, and use the law as a weapon against all criminal acts that undermine the socialist legal system.”
Organic Law of NPC of People’s Republic of China (1982)
Optional reference work. This is one of the documents that governs the lawmaking procedures of the NPC and the Standing Committee. (Cohen, 378)
Constitution of PRC (1982) as amended – see Class 12 reading for this
Alford flagged Articles 57, 67, 89-90, 123, and 127-128.
Decision of the Third Session of Sixth NPC on Authorizing the State Council to Formulate Interim Provisions or Regulations Concerning the Reform of the Economic Structure and the Open Policy (1985)
The paragraph document authorizes the State Council to enact any necessary economic reform regulations that don’t “contraven[e] the relevant laws and basic principles of NPC and its Standing Committee.” Once the Council’s regulations are reported to the Standing Committee, they will be made into law “after they are tested in practice and when conditions are ripe.”
Clean Air? Clean Processes? The Struggle Over Air Pollution Law in PRC by William Alford
This article illustrates how the legislative process works in China as viewed through efforts to use the law to correct environmental problems.
• Organs of State – NPC, Standing Committee, State Council, Central Military Commission, Supreme People’s Procurate, Supreme People’s Court, Chinese Communist Party (CCP), specialized NPC committees that draft and discuss legislation (706-07)
o State Council initially took the lead in addressing environmental concerns, organizing in 1975 what eventually became a state ministry named NEPA (now SEPA). In 1993, NPC formed a separate committee called ENRPC. (709)
• The battle between SEPA and ENRPC over the 1995 revision of the Air Pollution Prevention and Control Law (APPCL) has larger institutional implications. (736-37) ( Who will really control PRC’s law-making agenda: administrative arm? legislative apparatus?
o See pp. 738-742 to understand the specifics of the disagreement.
o A subsequent APPCL revision in 2000 was more easily passed, in part, due to lessons ENRPC had learned from its previous experience. The later decision is seen as a real win for environmentalists. (744-46) But was the 2000 legislation a real victory for NPC?
▪ Or were laws passed only b/c the CCP now supported environmental issues? (747)
Legislation Law of PRC (2000) – governs various lawmaking authorities:
▪ Art. 1: Purpose is to “standardize lawmaking activities…perfect our socialist legal system with Chinese characteristics…and to build a socialist country under the rule of law.”
▪ Art. 5: “Lawmaking shall reflect the will of the people, promote socialist democracy, and ensure that people are able to participate in…lawmaking…”
▪ Art. 7-8: (describes lawmaking authority of NPC, Standing Committee, and State Council)
▪ Art. 10: “…The enabled body shall exercise such power in strict compliance with the objectives and scope of the authorization.”
▪ Art. 34-36: (Standing Committee procedural requirements)
▪ Art 42: “The power to interpret a national law [is in] Standing Committee…”
▪ Art. 43: (state organs may ask Standing Committee for interpretations)
▪ Art. 47: “Legislative interpretations by Standing Committee …have the same force as national law.”
▪ Art. 56-58: (State Council procedural requirements)
▪ Art. 63-64: (local People’s Congresses and decrees)
▪ Art. 71-73: (ministries and commissions)
▪ Art. 77-83: Constitution > national law > administrative regulations > local decrees and administrative or local rules (note: complicated scheme so see Art. 80 for yourself!)
▪ Art. 84: (Laws do not normally have retroactive force.)
▪ Art. 87-88: (concerning amendment or cancellation of a law)
▪ Art. 90: (state organs can request Standing Committee review of allegedly unconstitutional regulations or decrees)
Citizens Petition NPC Standing Committee for Review of Conflicting Legal provisions on Marriage Registration (2005) – optional
This shows Legislation Law Art. 90 in action, though the review was sought by private citizens because they thought that a local rule conflicted with a State Council regulation.
Legitimacy of Local Rules (2005) – optional
An op-ed piece criticizes a local administrative regulation (prohibiting begging) as unconstitutional and calls for examination of local regulations to be sure that they are “legitimate according to both the Constitution and the law.”
Report on a Case Supervision y Sichuan Province People’s Congress (2001) – optional
This is a SOIC example (see below) about the case of a convicted rapist whose death sentenced was reduced because he later provided information about some unsolved crimes. Public outrage over the reduction sparked a joint investigation between the local people’s congress and its standing committee, and the criminal’s info was found to be fabricated and/or groundless. Various governmental bodies then had a difficult time deciding whether to reinstate his death sentence or keep the lesser one. Criminal was then re-tried, sentenced to death, and the local people’s congress “reported its supervision to the NPC’s Standing Committee and asked it to urge the Supreme Court to confirm the death sentence…”
Critical Thoughts on People’s Congress’s Supervision of Individual Cases Before Courts by Renda Yanjiu (2001)
▪ Supervision Over Individual Cases (SOIC) = People’s Congresses and their Standing Committees at various levels directly interfere in outcomes of decided or pending cases
o prevents unjust administration of justice (91)
▪ counter: but SOIC actually perpetuates this, as judges improperly pressure parties, corruption pervades, and cases settled on basis of money, connections, etc.
o makes up for weak supervision over administration of justice (92)
▪ counter: but all the levels of SOIC supervision have their own shortcomings and do not function together as a comprehensive system
o supervision rectifies wrongly decided cases and enjoys media support
▪ counter: short-term benefits don’t outweigh SOIC’s long-run costs of impeding establishment of socialist rule-of-law
▪ SOIC prevents independent judicial organs (93) and rule of law (94), is subject to local protectionism (96), impedes professionalization of judiciary (98), threatens stability and hinders economic growth (98), and wastes judicial resources (99).
▪ Author thinks the constitutional balance should be preserved by strengthening the procuratorates (instead of the People’s Congress) as legal supervisory organs. The People’s Congress should, in turn, supervise the overall work of the courts and not the individual cases themselves. (100-02)
The Matrix Muddle: Tiao/Kuai Guanxi (2003) – excerpt from Kenneth Lieberthal, Governing China…
▪ China’s bureaucratic complexity is its own stumblingblock!
▪ “Matrix problem” = complex bureaucratic web w/ vertical (tiao) & horizontal (kuai) relationships
o Chart 6.4 shows the “crisscross” of authority imposed on a hypothetical energy company
o In a Chinese system of “multiple bosses”, one boss has the “leadership relationship” while the other has a “nonbinding professional relationship” with respect to the issue
▪ In practice, it can be hard/impossible to draw these lines in complex cases.
▪ “This fragmentation of authority in the Chinese political administrative hierarchy makes it relatively easy for one actor to frustrate the adoption or successful implementation of important policies, esp. since units (and officials) of the same bureaucratic rank cannot issue binding orders to each other.”
Explaining Sources of de facto Federalism in Reform China… by Yongnian Zheng (2006)
▪ Although China is a unitary state, its central-local relations act more like a federated one. (108)
o Hierarchical political system w/ govt. activity divided between provinces and the center.
o National government can no longer easily impose its unilateral will on provinces.
o Provinces have primary responsibility over their jurisdiction’s economy and most of its politics.
▪ Economic decentralization and globalization have catalyzed these changes. (109)
▪ Many Chinese scholars want to see a formalization of de facto federalism, though camps are divided as to whether this would serve to weaken or strengthen the central government’s power. (122)
o But this would run counter to CCP’s ideology, and the institutionalization of federalism will be resisted. (123)
o In the meantime, de facto federalism gives flexibility; while institutionalized federalism would bring much-needed stability. (123-24)
The Case for Chinese Federalism by Michael C. Davis (1999)
▪ The “myth” of China’s unitary system belies the tension that exists between Beijing and various regions.
o Author argues that China’s true history of federalism and confederalism (from the imperial times to Marxist-Leninist era) has been mischaracterized to justify “maintaining central control.” (1)
▪ Three recent PRC policies illustrate the contradiction btwn the unitary state and decentralization.
o By restoring Hong Kong’s relationship to China, PRC “”has recognizing the international legitimacy of two territorial governments in China” At the same time, PRC keeps trying to control emerging democracy in Hong Kong. (2)
o Taiwan continues to resist China’s unification efforts, though PRC would be willing to grant it “a higher degree of autonomy…than Hong Kong” (3)
o Regionalism in mainland China “encourages political federalism [because] diverse social and economic interests created by economic liberalization [demand] formal channels of interest representation and conflict resolution. Yet PRC’s constitutional structures and lack of demcractic institutions cannot meet these demands.
▪ Because federalism can involve a “coming together” or “holding together” some reformers propose that follow a mixed approach, implementing the former for the mainland and the latter for the peripheral communities like HK and Taiwan. (4)
o Though China’s is currently trying to “achieve economic federalism w/o democracy,” some believe that political federalism is inevitable. Thus, China’s reformed federal govt. should (4-5):
▪ allow voters a say in what affects their daily lives
▪ build institutions that encourage politicians to support both regional and national interests
▪ provide public goods (defense, monetary system, etc.) and set policy regulations in arenas where regional and national interests may conflict
▪ create independent federal courts to address concerns and review laws (e.g. regional protectionism, oppression of minorities, corruption, etc.)
▪ expand current village elections to county and provincial levels
▪ gradually reform NPC to be the national legislature, though with key changes in size and nature of elections
▪ deny special status to CCP
o As for peripheral communities, China’s unification policies must support the democratic values of these communities: (5-6)
▪ limit role of central government in these regions and create a real partnership
▪ chould involve commerce, trade, security, defense, public health, human rights, etc.
▪ long-term goal of unanimous agreement, though a supermajority may suffice short-term
▪ create a judicial organ for impartial dispute resolution of confederal requirements
▪ create other formal, reliable institutions to support trade, investment, the arts, etc.
▪ encourage international participation, despite lack of formal recognition as a state
Class 14: Administering the State
EXECUTIVE SUMMARY
These readings first consider the framework of law developed to administer the Chinese state and then look at vehicles through which citizens endeavor to engage state administration. Most notably, the Administrative Litigation Law and the letters & visits process. We see in these readings a lot of connection and comparison to the international world. Reading number 2 situates China’s system of administrative law in the context of its neighbors, Japan and South Korea. We also see the return of Confucianism in the Administrative Litigation Law. The idea being that people want to have a just official to mediate their matters.
READINGS
1. Wang Xixin, “Rule of Rules: An Inquiry into Administrative Rules in China’s Rule of Law Context,” The Rule of Law: Perspectives from the Pacific Rim, ed. L. Gordon Flack (2000).
Rule-making power is an outstanding feature of the modern administrative state in China and its agencies. This article describes what rules are, how they work, and the challenges that China faces in using this system.
• Administrative rule is a legal term in administrative law in China. Administrative rules are made by ministries of the State Council and by some authorized local governments. (2)
• An agency has the inherent power to make rules by virtue of its function as part of the Executive branch. The Constitution states that the central government and the local governments are executive organs of the NPC and local PCs respectively. (4)
• If an agency’s administrative rules are to substantively affect individuals’ rights and obligations, an agency must be delegated power by the legislature. (5)
• The two kinds of rule-making face certain challenges. The Constitution defines functions and authorities of agencies in too a broad manner. There are no instituted checks on the rules that an agency makes. For delegated rule-making, sometimes delegations are too broad. (6)
• The ultra vires principle directs that agency rule-making powers either, inherent or delegated, must not exceed certain boundaries. For inherent rule-making power, it must be exercised within an agency’s jurisdiction; for delegated rule-making power, an agency must not make rules beyond the authority given by relevant law or legislature. (7)
• An agency makes administrative rules through six procedural steps. (9-11) Author suggests that the procedure is flawed because there is no effective mechanism to restrain potential arbitrariness and to achieve rationality and legitimacy. (11-12) Procedure should be more democratic. (12) Also problematic is that the hierarchy of rules made by central and local government is unclear. (14) A proposed solution is Legislation Law. (16) Author suggests introducing judicial review over administrative rules. (19)
1a. Articles 62, 67 and 89-90 of the PRC Constitution (see previous reading. Not sure which one though. I referred the articles on the web).
Article 85. The State Council, that is, the Central People's Government of the People's Republic of China, is the executive body of the highest organ of state power; it is the highest organ of state administration.
Article 89. The State Council exercises the following functions and powers:
• (1) To [...] enact administrative rules and regulations [...]. (2) To submit proposals to the National People’s Congress or its Standing Committee. (3) To lay down the tasks and responsibilities of government ministries (roughly 28). (5) To draw up and implement the plan for national economic and social development and the state budget;
Article 90. [...] The ministries and commissions issue orders, directives and regulations within the jurisdiction of their respective departments and in accordance with the statutes and the administrative rules and regulations, decisions and orders issued by the State Council.
1b. Law on Legislation from Class 13.
Articles 56-58. Describe the State Council’s role in enacting administrative regulations.
2. Excerpts from John Ohnesorge, “Chinese Administrative Law in Northeast Asian Mirror,” Transnational Law & Contemporary Problems (2006).
The premise of this article is that much can be learned from considering China’s administrative law in light of the “uniformities,” “typical situations” and “typical relationships” that can be derived from studying how administrative law developed in China’s Northeast Asian neighbors.
• One pertinent example: In 1989, China took a step toward formal conformity with its Northeast Asian neighbors, Japan and South Korea, when it adopted its own Administrative Litigation Law. A court reviewing the legality of an administrative action under ALL may find the agency liable for damages arising out of that action if the action is found to be illegal. It also creates a unified system of private causes of action to challenge government action. (23)
3. People’s Daily Online, “Licensing law – driving force of China’s administrative reform” (2004) China Daily “Lawyers call for amendment of compensation law” (2003). Geoffrey A. Fowler and Juying Qin “China Moves to Boost Transparency, but Much is Kept Hidden,” Wall Street Journal (2007). BBC News “China criticized over secret laws” (2007).
• These articles discuss some of China’s laws on administrative reform: the Administrative Licensing Act (29), the State Compensation Law (31), the Regulations on Open Government Information (33). The final article describes the kind of law that new administrative regime is trying to move away from: the secret law system. The State secret system allows large amounts of information to be classified as state secrets. Combined with the one-party regime, and the absence of an independent rule of law, this allows further consolidation of political and social control by the ruling elite. (35)
5. Administrative Litigation Law, published in China Law and Practice (1989). “Administrative Litigation Law Amendment Draft is Shown, Setting Out Regulations for Public Interest Litigation for the First Time,” (2005).
• The Administrative Litigation Law is legislation passed in 1989 that authorized private suits against administrative organs on the grounds of infringement of their rights. Types of administrative actions that can be challenged must be “concrete actions” which include: administrative punishments (such as detentions and fines) and refusal to take action or perform an obligation. The review of state action is carried out in the local people’s courts. (Article 11) (44) The court can declare an act unlawful and put it aside, or prevent the application of the rule. (Article 54) (55)
4. Excerpt from Kevin J. O’Brien and Li Lianjiang, “Suing the Local State: Administrative Litigation in Rural China,” Engaging the Law in China: State, Society and Possibilities for Justice, eds. Neil Diamant, Stanley B. Lubman, and Kevin J. O’Brien (2005). Han Jiang Feng “Lack of Confidence is Main Reason for Infrequent Administrative Litigation China Youth Daily (2003).
• Observers hoped that the Administrative Litigation Law would curb official misconduct. However, evidence suggests that its deterrent effect has been modest. (37)
• The ALL’s effect has been especially problematic in the countryside where many local officials continue to mistreat villagers. Litigating is expensive, getting a case accepted is difficult, losing delays are common. Many villagers concluded that it is futile or even dangerous to contest unfair administrative decisions. (37)
• Many people do not make use of the ALL because they lack confidence in it. The primary reason why ordinary people are not willing to sue government agencies is that the relationship between courts and local government is so uncomfortably close. Local governments control the personnel, finances and property matters of courts and therefore can exert influence on the courts with little difficulty. (41)
6. Anthony Kuhn, “Chinese tradition of Petitioning Strong, Despite Few Returns,” National Public Radio (2006). Xinhua, “Courts handle more complaint letters, people’s visits in first 11 months of 2005” (2006). Human Rights Watch, “The Petitioning System” (2005). Regulations on Letters and Visits, Decree of the State Council of the People’s Republic of China (2005).
• The “Letters and Visits” system allows citizens to report grievances to authorities, who are then supposed to instruct other government departments to resolve the problems. (67)
• In many respects, the system is an expression of the Confucian philosophy. It is premised on appeals by citizens to the better nature of their rulers. In China’s imperial days, commoners had the right to report official misconduct or to appeal judicial or administrative decisions to higher levels of government. (71)
• As a system of redress, the petitioning system has generally failed. It is overloaded and not organized very well. Most official responses from petitions offices are similar: they are usually just form letters to local authorities requesting that they investigate or take care of the individual case locally. Petitioners say these letters rarely carry much weight with officials who receive them. (72)
• This system has mobilized Chinese citizens to fight against corruption by local officials, crime and economic dislocations. Sometimes their efforts are unreasonably tireless. (74)
7. Paul Mooney, “How to Deal with NGOs – Part I, China,” Yale Global Outline (2006).
• China dispatched intelligence officers to conduct background checks on NGO members in China. The Communist leadership in China is worried that domestic and foreign NGOs could spread Central Asia’s color revolutions. The color revolutions are part of a US strategy to bring former Soviet territories under American influence, control the region’s energy resources, and use the region as a base to contain China. (90) The investigations intimidate the Chinese partners of NGOs, resulting in a slowdown of project approvals. The organizations, however, pose little threat to China’s one-party government and public policy experts anticipate that the surveillance will subside. (89)
Class 15: Resolving Disputes (Or Not) (1)
This class discussed the formal dispute resolution mechanisms (for local people) in China and how they end up functioning in practice. In class, we watched the movie portraying the story of Qui Ju- a woman who sought redress for a man kicking her husband in his groin. All she really wanted was an apology from the village boss, but after months and months of trekking into the city and going to different courts she still wasn’t able to get one and the village boss was dragged off to jail, the last thing Qui Ju really wanted. The takeaway from The Story of Qui Ju was that the new formal legal mechanisms for civil dispute resolution were not equipped to give Qui Ju what she actually wanted. Though the courts ultimately ruled for Qui Ju, she still found herself wondering where justice was at the end of the film. The courts could not provide the type of justice (acknowledgement and a respectful apology) that Qui Ju Sought.
1. Fu Hualing, “Shifting Landscape of Dispute Resolution in Rural China
• Article studies dispute resolution mechanisms in township and village levels and the interplay between villages and state legal institutions
• Enforcement of state law is virtually impossible at the village level:
o No adequate institution support in villages
o Formal state mechanisms are inconsistent with traditional informal mediation practiced in villages( informal process is better equipped to actually asses justice.
• Police Officers
o Public Security Bureau (PSB)- county officers from the county capital stationed at townships
o Contract Police- members of township recruited and financed by the township government
o Police officers, especially contract police, suffer from excessive control from township governments and are known for using excessive force. Rural officers specifically are known as “low quality” by outside standards
• The Courts
o One tribunal in every three townships in remote regions (1 tribunal for every 50,000-100,000 people)
o 3-5 judges and clerks
o Jurisdiction over: civil, limited economic and criminal cases (only in response to complaints)
• Judicial Assistants
o JA’s created in 1970’s to oversee dispute resolution in townships
o Responsibilities include overseeing mediation, conducting legal education, suggesting resolutions, and serving as a nexus between villagers and their government
o Up to this point the position has not been taken seriously and has been largely ineffective
• In practice, the police, courts, and judicial assistants have been flawed. However, some things have started to change:
o Police beginning to focus on criminal investigation and crime prevention (specifically rural)( this is especially important because concealment of crimes is especially prevalent at the village level.
o 1998 Supreme people’s Court restructured ct branches- consolidating township branches(Rural transportation is improving so that tribunals are more accessible; township ct branches have become more formalized and professional in; litigants are now required to provide their own evidence (more like the American system).
• Though the rules have been issues that mediation committees and JA’s can’t charge mediation fees, this is not enforced. There are still a lot of problems with the formal state mechanisms operating within villages.
2. Jerome A. Cohen and Joan Lebold Cohen, “Did Qui Ju Get Good Legal Advice”
This article begins by discussing the tensions between rural and urban China and then goes on to relay the story of Qui Ju. In discussing the video itself, the article suggests that it aptly portrayed many elements of village life, and what visits to the city for peasants were like. However, it asserts that the film did not accurately depict the relation of rural people to those who administer justice (she wouldn’t have had access to police, and higher officials). Most importantly, the article asserts that Qui Ju did not get good legal advice. A civil suit would have been better for what Qui Ju wanted, however the police, director Yan, and the attorney Qui Ju hired pursued a criminal charge (assault). The article concludes with “So much for law, but what about justice?”
3. Zhu Suli, “Qui Ju’s Puzzle and Grandpa Shangang’s Tragedy
This article uses two popular movies in China, Qui Ju and Grandpa Shangang (the case of a Party branch secretary in a remote village being arrested by upper level authorities for imposing a severe punishment on a woman for mistreating and beating her mother-in-law), to discuss the following legal questions: 1) whether there are objective, universal rights and whether a legal system can be established to protect them. Like the previous article, Suli highlights the inability of the court system to address Qui Ju’s problem since her claim for Shuo Fa (justice) was alien to the formal legal system. The fact that there is no place for local knowledge and customs in formal legal systems is an irreparable flaw. In Qui Ju’s case the system was shown to be additionally flawed because it could not account for long-term consequences, such as the relationships in the village. It is because institutional tools provided by the central authorities are insufficient to address village concerns in ways that are most beneficial to the village community as a whole that minor disputes were traditionally resolved within the community.
The article also discusses the influence of the west on China. Suli explains that the formalism of the new legal institutions in China are an attempt to follow in western footsteps. However, he notes that this is flawed in China because new laws and institutions cannot be enforced when they are not in line with custom. Thus, he suggests that China must institute functional substitutes for the traditional customs/mechanisms for dispute resolution (that can create the types of awards sought by Qui Ju etc.). He emphasizes that transplanted laws from the west cannot take the place of traditional custom and usages unless they are compatible with traditional custom and usage. In the end, Suli suggests that the best way to balance western-style formal legal institutions with traditional customs and conceptions of dispute resolution in the pursuit of the rule of law is “not to copy the Western legal system, but rather to pay attention to the functioning, through customs, of China’s society”
4. Alford, “Second Lawyers, First Principles”: Lawyers, Rice-Roots Legal Workers, and the Battle Over Legal Professionalism in China
*note: Alford made his article optional- in class he spoke about the function of mediation and its development in China over time beginning with the creation of the JA’s in the 1970’s. However, his article is primarily about the changing and developing function of “rice-roots” legal workers in China.
Class 16: Resolving Disputes (Or Not) (2)—Courts, Judges, and Judicial Independence
Executive Summary:
We examine another set of “Institutions, Processes, & Personnel” as we seek to understand the current infrastructure that will affect China’s establishing a new legal system. We examined the structure and nature of courts, judges and judicial independence, both in China and outside, as we sought to understand which features could be useful for China moving into the future. (Here’s another opportunity to question the goals. Should the goal of a harmonious and stable society be furthered with more individual rights or betterment of society e.g. economically?). We start away from China trying to establish a baseline yardstick and then examine the features and values of the Chinese judicial system.
In-class Video: “The People’s Court: Introducing the Rule of Law in China”
Coming out of the Cultural Revolution where there was no law or predictability, China faced the challenge of establishing legitimacy of the legal system.
- Judges are government officials. Automatic distrust.
- People think that the property companies who take their land and pay very little are endorsed by the local officials
- The system is rife with corruption and dishonesty.
o Some employers who don’t want to pay worker’s compensation will just say that the employee wasn’t hired. Other employers will just say that there’s no company at all.
o People don’t know the formal law, e.g. migrant workers don’t know the labor laws
Some features that may help in establishing legitimacy:
1. Judicial independence
a. The more you remove the judiciary from politics is the better it can challenge the majority.
b. The definition varies with each individual and for each country, and the appropriate one may change in time for China
c. Role of the adjudication committee (see below)
d. Should there remain a relationship to the party? Does that help or hurt? Is it even likely that the party would relinquish control of the courts given their use in controlling society?
e. Currently the courts are subordinate to the executive and legislative branches. One avenue for increased independence is to give them more power.
f. Possible ways to increase judicial independence
i. Have Supreme People’s Court publish model opinions
ii. Increase judge’s salaries to decrease incentives for corruption
iii. Have public trials
2. System of precedent
a. China currently doesn’t use precedent as is done in common law courts.
b. Some possibilities
i. A soft precedent (see “Constructing a Case-Law System with Chinese Characteristics? …” below)
ii. Could differ (e.g. adopt/not adopt) by types of cases
iii. Could differ (e.g. adopt/not adopt) by level of the judiciary
3. Constitutionalism
a. Is the goal to promote this?
b. If so, what might be the best institutional vehicle?
Possibilities:
i. the Standing Committee of the NPC or some as yet to be established specialized sub-committee thereof
ii. the new Standing Committee sub-committee established in 2004-5 to receive and review regulations
iii. the Supreme People’s Court
iv. a constitutional court of the type Germany and Korea have but China does not
v. an administrative body that would review legislation before it is passed for constitutionality
vi. all courts
c. The 1954 & 1982 Constitutions talks about judicial independence. See Xin Chunying below.
Civil Law vs. Common Law Courts
- stare decisis (precedent) is more adhered to in common law than civil law
- in the civil law system, judges are trained specifically for that role. They begin their careers as judges (not lawyers) and as such are young. In civil law, judges are more likely to be experienced lawyers before they join the bench. Because of this, civil law judges are more influenced by bureaucracy because they are more dependent on government officials for promotions and movement to the more desirable urban courts.
- Judges can make law in common law courts. Less so in civil law courts.
- Judges are to be more impartial/passive in common law courts. In civil law courts, judges have to investigate and collect evidence.
- There are no juries in civil law courts.
- Litigants lead the trial process in common law courts. In civil law courts, the judges role is more inquisitorial.
- In common law courts, law professors are seen as one source on what the law should be. Not so in civil law courts.
- Civil law opinions are usually simple and short. It is given jointly, with no dissent. In Common law opinions, dissents are considered and courts can be divided.
- Keep in mind: the US federal system isn’t the same as the US state systems. All but MA have some elected judges ( less independence. From “Voting for Judges in the USA”: “Since 2000, candidates on state Supreme Courts have raised $US150-million for their electrion campaigns.”
Marxist view of US-type judicial independence
- wouldn’t truly be independent because there would still be some capture
- skepticism abut any idealistic notions of independence
China’s Court System
General information
- There is a unified national system.
- Structure: Supreme People’s Court > Provincial/Autonomous region courts > intermediate courts > Basic level courts
- About 300,000 employees, of which about two-thirds are judges
- About 7.35 million cases a year. This number has been stable for the past 6 years or so. 85% are civil cases (economic, family, etc.) and about 12% are criminal cases.
The Supreme People’s Court
- About 200 judges and about 100 researchers and staff
- There is a move to increase the number of judges as the Court has taken back the authority to review all death sentence cases.
- Sits at the top of the pyramid
- Functions
o Similar to the civil law system, it administers the court system, unlike the US Supreme Court which is fundamentally a court.
o Interprets laws. They were delegated this function from the NPC (uncommon delegation of powers to courts).
o Publishes the gazette – includes emblematic cases to send a message as to where they think the law should be moving. This is illustrative, not binding.
o Provides clarification for ongoing cases in the lower courts
Lower level Courts
- about 3000 courts
- there are substantive chambers/tribunal within each court, e.g. civil, administrative, criminal, enforcement, etc.
- 2 other vehicles of note
o Adjudication committee
▪ More senior jurists available if judge has questions or wants advice
▪ Acts as a check on individual judges
▪ May be useful for Chinas burgeoning systems because of the corruption and young judges
o Communist Party involvement in the courts
▪ Can be through the adjudicative committee
▪ Political legal committee in the PRC acts as a conduit of party in involvement in the courts.
- From the video:
o Courts offer to mediate. The agreement is binding and can’t be overturned or appealed. Allows the parties to “save face”.
o Face some of the same difficulties as western courts, e.g. poor can’t defend themselves as well as the rich
o Mobile court trying to bring courts to the countryside. Offers an alternative to mediation among the villagers. Court tries mediation first.
o Sensitive cases tried in secret with “internal” rules not known by lawyers. Lawyers may not even be informed until after their client has been tried and executed.
Chinese Judiciary
- little independence from the Communist Party
o judges are members
o politically sensitive cases are heard in private first.
o The party influences outcomes of the more “important” cases
Readings:
Xin Chunying, “What Kind of Judicial Power does China Need?
- The current law doesn’t allow for judicial independence.
From page 69: “In China, courts are established by the authority of People’s Congresses, which is the source of all powers, even of the Constitution itself. Thus, although article 126 of the Constitution provides that the ‘people’s courts exercise judicial power independently, in accordance with the law, and are not subject to interference by any administrative organ, public organization, or individual,’ the very meaning of exercising judicial power independently is that courts are to be free form some power holders, but not all.”
- Judiciary should be made stronger (give it more power) and more independent (in the sense that judges shouldn’t give preferential treatment to people they like). China also needs for the judiciary to be more respected and trusted by the public.
“Constructing a Case-Law System with Chinese Characteristics? A Precedent-Decision System Emerges from Zhengzhou,” China Newsweek
- Advantages of using precedent
o saves the court system a lot of time. Cases can be decided quicker.
o Increased understanding of the law, because now published. And potential litigants can examine past cases for guidance on the likely outcome of any case they would want to bring.
o Restricts judges abusing discretion
- Use of soft precedent: call it “precedent” instead of “legal precedent”. page 3: “Anglo-American Case law emphasized judge-made law, and any legal precedent has the binding force as a matter of law. But ‘precedent’ only strengthens standardization of the judge’s discretionary power under China’s continental legal system. Precedents only have value as reference and cannot replace legal provisions.”
Class 17: The Emergence, Nature, and Role of the Legal Profession
Executive Summary: The readings for this week focus on the development of the legal profession in the PRC. Lawyers were marginalized (and often persecuted) during the Cultural Revolution. During that time there were only 3,000 lawyers in all of China. But once the Cultural Revolution ended, there was a big push to develop the legal system and profession in order to implement reforms. The trajectory of the legal profession’s development has not been perfectly straight. Early on, the development of a group of less trained “rice-roots” legal workers was encouraged by the government—alongside the development of a group of more professional lawyers. Questions about professionalism (what constitutes a “profession,” a “professional education”? What qualifications should lawyers have to meet?) are in the forefront of the development of the legal profession and occupy the discussion in most of this week’s readings.
Alford, “Second Lawyers, First Principles: Lawyers, Rice-Roots Legal Workers, and the Battle Over Legal Professionalism”
In the movement to create an entire legal profession in less than a generation, tensions arose around the question of quality versus quantity. A large number of “rice roots” legal workers (RRLWs) (with little or no legal training) sprouted up quickly in the late 1970s and 1980s. These less-trained legal workers drew the ire of better-trained lawyers, who comprised another rapidly growing group. This article traces the rise
• Factors/events in the rise of RRLWs
After the Cultural Revolution funding was provided for “legal workers” in rural areas
Unlike the lawyers trained in urban universities, the RRLWs were an “organic”/domestic Chinese innovation
The development of the RRLWs took place mostly at the regional and local level, rather than as a result of national policies
• The backlash against the RRLWs by the lawyers
Better educated lawyers soon challenged the legitimacy and usefulness of the RRLWs
Their main claim was the RRLWs were not “professional” enough (i.e. incompetent, untrained, corrupt).
They claimed that the people were being misled into thinking that RRLWs were lawyers
These claims continue to the present.
• Alford’s argument for the preservation of the RRLWs
Alford argues that main rationale for the “professionalization” of law is to allow the regular folks to use the law to achieve their goals, increasing the population’s “access to justice”
There are many rural areas of China were there are no lawyers at all
Even as many new lawyers are trained, very few of them have any interest in practicing in rural areas (and the economic incentives are very strongly against working in such areas)
The RRLWs are in rural areas and are doing tons of legal work there.
Thus the main purpose of legal professionalism (access to justice) is not served by the attempt to eliminate the RRLWs in favor of more formally trained lawyers.
• Alford’s thesis (p. 44): “Rice-roots legal workers may, in important respects, fall short of ideals of professional expertise and autonomy voiced in New York or Beijing but, given the distance between New York, Beijing and the lives of the vast majority of ordinary Chinese, and the importance of access to justice, we should think twice before viewing them as historic relics to be left behind in the name of professionalism.”
Alford, “Of Lawyers Lost and Found: Searching for Legal Professionalism in the PRC” (pp. 24-30)
This article focuses on the new PRC bar. The part of the article that Alford had us read focuses on the extent to which lawyers still don’t play a central role in day-to-day affairs, even in spite of their tremendous increase in numbers.
• Reasons not to “overstate the impact” of the increasingly numerous lawyers in China:
o The CCP is above the law (both formally and informally)
o The administrative nature of the Chinese state leaves less role for adversarial lawyers
o The most popular dispute resolution methods (“the letters and visits process, extrajudicial mediation, resort to rice roots legal workers, and other yet more informal processes”) don’t require lawyers.
o Even when there is litigation, “only out of every ten litigants appeas to have been using legal counsel”
o Corruption: The legal process is corrupt and lawyers are seen to be benefiting from the corruption (if they are not corrupt themselves)
o Party influence: The CCP is everywhere and influences lawyers more than foreign observers understand.
▪ Firms are required to have CCP cells and the Ministry of Justice (which oversees lawyer certification) exerts subtle and sometime overt control over the bar (i.e. telling members not to represent Falungong)
▪ Alford says that elite Chinese lawyers “have struck a Faustian bargain with the party/state, willingly accepting a good life materially and in terms of prestige and security” in return for sacrificing their independence and autonomy from the state. Obviously, this is a bad thing.
Gong Xiaobing, “Enhancing the Political Role of Chinese Lawyers”
• Two main challenges to the Chinese legal profession: (1) “lack of professional ethics” and (2) “low political status”
o Reasons for lawyers’ low political status:
▪ (1) Private lawyers are considered “businesspersons,” they are tainted by the profit margin. In the minds of government officials, lawyers cannot turn back and become government officials.
▪ (2) High officials are dismissive of lawyers—see them as marginal
▪ (3) There is no defined path from lawyerdom to political influence/office.
• Lessons that China could learn from American experience:
o Attorneys have valuable political and legal skills to contribute to governance
▪ Lawyers are obviously well versed in questions of “rule of law”
o Lawyers are incline to enhance political and social stability
▪ A lawyer’s main function is the resolution of conflict in society.
• Xiaobing makes a number of proposals to make China more like America:
o (1) create channels from lawyering to political leadership (2) pick judges from the pool of experienced lawyers, not political/military cronies (3) create “attorney general” position (4) get more lawyers in representative legislatures and local government (5) protect the rights of lawyers (6) used lawyers to provide legal aid (7) strongly punish corruption in the legal profession to “purify” it.
Xin Fei, “The Perils of Chin’s Lawyers”
An interview with a famous Chinese defense attorney about the difficulties facing lawyers:
• There is a serious shortage of defense attorneys in China. Why?
o (1) risk to lawyer’s reputation (2) low salary (3) low “sense of achievement” because most criminal prosecutions result in conviction.
• There is little to no judicial independence (we’ve discussed this more in other classes)
• There is a bizarre “perjury by lawyer” law that allows prosecutors to go after defense attorney’s for lies told by their clients.
• In sum, it’s no fun to be defense attorney in China.
Unit IV: Selected Substantive Issues
Class 18: Law and Economic Development (1)—What Does It Mean to Have a Property Right?
• “Caught Between right & left town & country,” The Economist (2007)-
o A new law on property rights was passed mainly to reassure the fast-growing middle class that their assets are secure. A few years ago a clause was added to the Chinese constitution saying that private property was ‘not to be encroached upon’ (p.26)
o The new law has raised a huge debate b/w China’s left wing, (which fears the country is turning too capitalist), and the right (which sees market forces as a sometimes painful but necessary cure to developmental problems”
▪ Even though direct criticism of leaders is still taboo in China, the drafting of the property law has provided an outlet for critics of govt policy to air their grievances. (the draft was published in 2005, which is strange for China b/c the legislative process is usually kept very secret). A vocal body of intellectuals & retired officials denounced the property law as a betrayal of the country’s socialist principles.
o A huge increase in privatization of housing since the late 1990s has radically changed the social & political fabric of urban china. “Property rights have become a topic of critical interest to urban residents anxious to protect their new assets from the whims of the state” (p. 27)
▪ Property rights are also a great interest to the private businesses which continue to grow rapidly in China.
▪ Farmers are finding property rights crucial b/c large-scale appropriation of farmland in recent yrs for housing & factory construction has rendered millions of farmers landless (and many have been given little or no compensation).
o Proponents of the law say that it will mark the government’s respect for private property & could help to reinforce social stability by reducing disputes. Also, farmers would have something to gain b/c the latest draft of the law gives them the right to renew their land-use leases after they expire.
▪ *however, the law will not put any new limits on the govt’s power to appropriate land, and the ban on mortgaging farmland will remain.
o The Left wing says that privatization is accelerating & causing a widening gap b/w rich & poor
o The Prime Minister, Wen Jiabao says the govt would ‘shift the focus of state infrastructure development & the development of social programs to the countryside (where income growth has been slower than in the cities” (p.29)
▪ The goal is to develop a ‘new socialist countryside’ w/ subsidized health care & free schooling for all.
• But critics of this ‘new socialist countryside’ campaign say that some village officials have used the campaign as an excuse to order the demolition of old houses & require villagers to borrow $ to pay for new ones. (p. 29).
• Benjamin James, “Expanding the Gap: How the Rural Property System Exacerbates China’s Urban-Rural Gap,” Columbia Journal of Asian Law (2007)- (pages 465 to 479 (end of part 1), and 481 (part 3) to 491).
o The focus of the modernization process which propelled China’s economic growth has been the industrialized cities, as a result, the average Chinese rural household today makes less than 1/3 the average urban family, & the gap is widening. (P. 1) Chinese Comm. Party leaders fear an increase in this gap will lead to social instability. China’s property laws governing the rural real estate have much to do w/ this income gap. The main problem is that the property system is a hybrid system (a mix of the socialist past & changes toward a market-based future). Under this system, farmers are insecure in their legal rights to operate rural land & their land is systematically undervalued.
o There have been 2 large shifts in the past century in the rural property system:
▪ 1st was from a feudal farming system (small percentage of landowners got very wealthy & the rest scraped by) to a communist system (which lessened inequalities but failed to bring economic prosperity)
▪ 2nd was from the inefficient communist system to the current hybrid system (which rewards farmers for production efficiencies but often prevents them from obtaining the tools they need to maximize production).
• The constitution’s provisions on property:
o Art. 6 of the Constit. Says that the ‘the basis of the socialist economic system of the PRC is socialist public ownership of the means of production, namely, ownership by the whole people & collective ownership by the working people”
▪ A 1999 amend. Allows private ownership (to spur economic growth), this is important b/c it explicitly permits some private ownership w/in the predominantly socialist econ. System.
o Art. 10 divides all land into 2 categories: land in the cities, & land in the rural and suburban areas
▪ Urban land = owned by the state. Rural & Suburban lands = generally owned by collectives
• In 2004 the NPC added a ‘compensation clause’ for the land that’s expropriated
• Chinese citizens now have an inviolable right to private property b/c of the 2004 amendments.
• 3 laws that most directly impact the lives of the Chinese peasants:
• Land Administration Law
o State may take land from individuals & non state entities only ‘for public interests’ & must compensate ‘accordingly’
o Reiterates that urban land is owned by state, & rural and suburb. Lands are ‘collectively owned by peasants’
▪ b/c peasants can’t own lad individually, if they want to use land to the exclusion of other individuals they must contract w/ the collectives (the land’s legal owners). Art. 14 allows collectives to lease their land to individ. Peasants for a term of 30yrs.
• Law on the Contracting of Rural Land
o General principles of the CRL: state protects the long-term stability of the reltnships of the contracting of rural land. The contract is a lease, not a sale or purchase. The CRL forbids using rural land for any non-agricultural construction w/o approval. The collectives (the legal owners of the land being leased) have the right to supervise the leasing party to make sure they’re rationally using & protecting the land. Collectives are also responsible for supplying the farmers w/ the ‘services of production, technology & information according to the agreement’. The farmers have the right to use the land & enjoy the profits & interest generated from that use. The CRL also gives peasants the ‘right to compensation for the contracted land if the land is lawfully appropriated or used for non-agricultural construction’ (p.10-11)
• Property Law
o Grants state owned, group owned, & private owned property the same degree of legal protection. This is a signif. Departure from tradt’l Marxist theory, which holds that the state should control the meas of production to prevent individuals from exploiting each other.
▪ This provision indicates that the Party leadership puts economic progress & the welfare of the middle & upper classes above ideological adherence
o This law does very little to change the conditions of the peasants. But one thing it does do is say that after a lease period has expired, the leaseholder ‘may continue the contract according the relevant national rules.” (p.12) Although the wording is vague & creates the question of whether this means the peasant may continue to occupy their plot of land for an indefinite period of time or whether they’ll be expected to enter another 30yr contract—the fact that peasants won’t have to just give their land back at the end of the term increases peasant security in their contracted lands (which increases the likelihood they will make investments in those lands).
• Problems w/ China’s Current Rural Property System:
▪ The Insecurity of Land use rights- 1) systemic hazards to their use rights:
• constant threat of govt takings. The only limitation put on the state is that the takings must be ‘in the public interest’- but b/c China is a civil law jurisdiction, the Chinese legal system can’t rely on developed case law to create a legal definition of the public interest. Chinese crts have to wait for legislature to codify a definition of public interest (they haven’t yet).
• Lack of checks and balances: no independent court or independent local enforcement officers to carry out orders (the local officials accused of violating takings clause would have signif. Power over the judge b/c they hired her!)
• Failure of landowners to give proper documentation outlining the agreement to leasing peasants. Peasants w/ documented land rights = more likely to make long term investments (leading to greater production from those lands) b/c the docs provide security. If the local govts did a better job complying w/ reqrmts there’d be more security.
▪ Problems of contracting w/ the protector of rights.- insecurity in land use rights also exist b/c there’s no neutral 3rd party to enforce agreements. The same problems of a lack of separation of powers come into disputes b/w peasants & the state over violations of Ks. Also, when peasants are compensated for takings, the amount of their compensation is based on the land’s agricultural production potential & not the value of the land if it was developed commercially. The profits gained in requisitions (converting from rural to urban land) go to the local officials & not the peasants. A survey reported that about 1/3 of cases where cash compensation was promised, the money was never delivered, and there’s no clear way for peasants to seek redress @ the local level in these situations.
▪ The undervaluation of Rural Land:
• The Hybrid System- For peasants land is the important b/c w/ no land they have no income. The hybrid system (allowing private ownership and still holding onto the socialist past ) has the effect of limiting the peasants’ economic potential. Other sectors enjoy the privatization of their means of production, the peasants, however are severely hindered b/c land remains publicly owned.
• The Dualist System-(distinction b/w urban land being owned by state while rural land is owned by peasant cooperatives).B/c rural land can only be used for agriculture, it’s less valuable than it would be if it were owned by the state & non-agricult. Construction was permitted.
• “Woman Defies Chinese Developers,” BBC News online (2007)-
Article about a woman (Mrs. Wu) who refused all offers for financial compensation or a new home in exchange for allowing her home to be destroyed in order to finish a major property devlpmt in the city of Chongqing.
• “Demolition ends China house row,” BBC News Online (2007)-
A follow up article reporting that Mrs. Wu finally reached a deal w/ authorities & her house was demolished.
• Edward Cody, “Farmers Rise in Challenge To Chinese Land Policy,” Washington Post(2008)-
o Article describes a group of farmers revolting against China’s communist land-ownership system & the system of collective ownership in rural areas. The farmers divided up the village’s collective holdings w/ the goal of making each family the owner of a private plot. Called the “Fujin privatization movement,” the actions of these farmers raises question of why the state doesn’t privatize the land the same way it privatized state-owned industry & moved toward a market economy? Also, some scholars suggest that giving farmers some kind of ownership rights Is the only way to resolve recurring unrest in the countryside.
• David J. Barron & Gerald E. Frug, “Make eminent domain fair for all,” Boston Globe (2005)-
o Arguing that the use of eminent domain can do great good when it is applied for a truly public good, and that the ability to bring challenges to eminent domain proceedings (when legitimate) should be enjoyed by both the rich & the poor.
Class 19: Law and Economic Development (2)—Does China Challenge the Conventional Wisdom?
John Ohnesorge, “Developing Development Theory,” University of Pennsylvania Journal of International Economic Law (2007)
This reading was essentially an overview of different schools of thought pertaining to the relationship of law to development. These include the Washington Consensus (focus on economic liberalization as if market forces would lead to the creation of the rule of law), the Comprehensive Development Rule of Law (expands approach to include human and personal rights as well as traditional contracts, property and other commercial law). As is the theme in this unit, this article ends by considering the success of Northeast Asian countries which defied these theories ( recognizes several alternative approaches and urges a comprehensive approach to law and development that encompasses both economic theorizing and attention to real political and governance issues.
Article highlight: According to Ohnesorge, if economic development is the goal, then the legal system should operate in a substantive rationality mode, i.e. with attention to the societal ends which the law is to serve. Caution must be exercised to avoid allowing the actual substantive results to become secondary to the task of creating the legal rules that theoretically produce those outcomes (like the focus on the form of elections rather than the ends there are supposed to serve – greater individual rights, alleviation of poverty, stability, peaceful conflict resolution etc).
Factors important for economic development
o Intellectual Property Rights
o Clear and enforceable property rights
o Rules-based contract law
o Effective insolvency regimes
o Effective corporate law
Donald Clarke, Peter Murrell, and Susan Whiting, “Law, Institutions and Property Rights in China” (2005)
Clarke’s article recognizes that the protection of property and contract rights, while perhaps not a necessary condition for economic growth (given Northeast Asia’s experience), can play a very important role. He notes that China’s success despite the absence of strong property and contracts protection may be due to the use of substitutes such as negotiation, arbitration, reputation, strong-arm tactics, trusted middlemen, and self-enforcement (hostage taking) etc. These substitutes may be more efficient for developing countries which do not have the necessary resources to institute wide-ranging legal reform (Posner’s argument). Clarker also suggests that perhaps the enforceability of rights is not as important as predictability; in other words, predictability may be a sufficient condition for economic growth even in the absence of strong enforcement of rights. He ends the article by providing some data regarding the alternative dispute resolution mechanisms that have been resorted to in China.
Donald C. Clarke, “Legislating for a Market Economy in China,” China Quarterly (2007)
This article is essentially a laundry list of the various laws and regulations China has enacted to secure property and contracts rights and create a welcoming environment private and foreign investment ( growth of the market economy.
Property rights
• Securities
• Real estate
• Intellectual Property
• Mergers and acquisitions
• At a very basic level, the laws need to determine what can be owned and exchanged?
Barriers to entry
• Business license requirements
• High initial capitalization requirements
o Capitalization: share price X number of outstanding shares = public opinion of a company’s net worth
Contracts – Goals for contract law in developing countries
• Minimize state interference
• Make contracts enforceable and guarantee private parties’ expectations
• Contract problems in China – Heineman: “No one wants to put themselves at the mercy of Chinese courts.”
• Should we think about specialized commercial courts (or chambers)?
Institutions that encourage beneficial exchanges
• Credit bureaus ( to provide information about borrowers
• Accountants
• Analysts ( to provide information about various companies and their stock/how well they are doing
Class 20: Law and Economic Development (3)—China Joins the WTO
Executive Summary:
This class dealt with the process and implications of China’s accession to the WTO. The articles for the most part deal with the various hurdles that the Chinese government had to overcome during the particularly length negotiation process and the factors that came to bear therein. Also of salience in these readings are the potential results and effects of China’s joining the WTO, as well as an examination of the massive economic restructuring that will have to take place in China to meet the requirements of the WTO agreements.
❖ Excerpts from World Trade Organization, “Understanding the WTO: Basics” (2007)
➢ HISTORY
▪ The WTO was officially formed on January 1st 1995. It developed from the GATT (General Agreement on Tariffs and Trade) a name associated with both the agreement and the associated organization. The GATT developed over the years through a series of negotiation periods known as “rounds” during which member countries would meet and discuss and revise the various provisions. The final and longest round (The Uruguay Round) saw the greatest change to the GATT system and led to the creation of the WTO. While the GATT system focused on trading goods, the WTO includes trade in services and intellectual property rights.
➢ WTO: A Multilateral Trading System [Not called “Global Trading System” because not all countries are included]
▪ WTO is a negotiating forum where member states go to sort out trade disputes they have with each other. It was created by, and operates though, negotiation
▪ The WTO is governed by agreements, essentially legal contracts negotiated and signed by all the member countries. The purpose of these agreements is to help trade flow freely as long as there are no negative effects, and solving disputes between member countries.
➢ The Agreements are lengthy and complex, but there are fundamental principles that run throughout and form the foundation of the multilateral trading system.
▪ Most Favored Nation Treatment: No discrimination; countries must treat all member states equally. There are limited exceptions to this rule.
▪ National Treatment: Imported and locally-produced goods must be treated equally once the foreign goods have entered the market.
▪ Freer Trade: Gradually lowering trade barriers (import bans, quotas etc.) through negotiation so as to encourage trade.
▪ Predictability: Countries “bind” their commitments when they open their markets, i.e. they agree not raise customs tariff rates beyond a certain point so as to assure their trading partners for the future. These commitments can be altered only after negotiation with all trading partners.
▪ Fair Competition: The WTO is not a free-market system in that tariffs are allowed, however, the rules are designed to facilitate fair conditions of trade and fair competition.
▪ Development and Economic Reform: Special consideration is given to developing nations who are members of the WTO. Greater flexibility is allowed regarding their adoption of WTO agreements eg. transition periods.
➢ Open Trade:
▪ The case for open trade through a system based on multilaterally adopted rules rests upon the principle of “comparative advantage”. This principle suggests that countries prosper by taking advantage of what they produce best and trading these products for products that other countries produce best. This works in part because every country, rich or poor have assets, whether human, natural or otherwise.
❖ Excerpts from the WTO, Report of the Working Party on the Accession of China (2001)
➢ The working party on China’s status as a contracting party was established in 1987 in response to China’s request for resumption of its status as a contracting party to the GATT and subsequently the WTO. The working party met many times between 1987 and 2001 when China was officially granted accession to the WTO after 15 years of negotiation. During these meetings concerns were raised by members of the working party (WP) and addressed by China’s representative (REP).
➢ INTRODUCTORY STATEMENTS:
▪ REP: China’s wish to resume its status was in line with its objective of economic reform to establish a socialist market economy, and opening to the outside world. A great deal of social and economic reform had been taking place in China in furtherance of these aims (new nation-wide unified open market system, new tax and financial system etc.).
▪ REP: Despite these achievements China is still a developing nation and should receive all the deferential and more favourable treatment accorded to developing countries.
▪ WP: Because of China’s size and rapid growth, and transitional nature of the market economy, a pragmatic approach should be taken in determining China’s need for recourse to special provisions of the WTO agreements.
➢ ECONOMIC POLICIES:
▪ WP: Concerned about China’s practice of conditioning, or imposing restrictions on participation in its market based upon the nationality of the entity.
▪ REP: Chinese government has made commitments to non – discrimination. China promises to eliminate dual-pricing practices and al uneven treatment between foreign and Chinese entities.
▪ WP: Concerned about existing Chinese admin laws that could adversely affect imported products.
▪ REP: By accession China will repeal all such laws and any other measures that are inconsistent with the WTO rules.
➢ STRUCTURE & POWERS of GOVT.
▪ REP: China will ensure that all laws and regulations affecting trade are in conformity with WTO agreements. For this purpose China has commenced a plan to revise all relevant domestic laws, and enacting new ones fully in compliance with the WTO agreement.
➢ JUDICIAL REVIEW:
▪ WP: China should designate independent tribunals to review administrative actions relating to the implementation of laws referred to in the GATT (agreement on goods), GATS (agreement on services), and TRIPS (agreement on IP rights). Such tribunal should be independent of the agency whose actions they review and should have no substantial interest in the matter.
▪ REP: It shall be done.
➢ TRANSPARENCY:
▪ WP: Concerned about lack of transparency regarding laws, regulations and other measures, particularly at the sub-national level, that applied to matters covered in the WTO agreements. Information regarding the promulgation of such laws and regulations need be received by WTO in a timely manner so as not to be caught off guard and disadvantaged in any way.
▪ REP: Such actions are made available in several publications as well as via the world wide web.
❖ Penelope B. Prime, “China Joins the WTO: How, Why, and What Now?” Business Economics (2002)
➢ This article analyzes the process and probably effects of China’s joining the WTO.
➢ Background:
▪ There are several reasons why it took 15 years for China to negotiate joining the WTO.
▪ Debates within the central government regarding the benefits of changing to fit the norms of international capitalism slowed the process. Though a decision at the highest level to go forward resulted in further debate being forbidden, the opposition did not end there. Academics, journalists and others aligned on both sides of the issue. One side argued that China was relying too much on foreign investment, the other that there was not enough, and that further liberalization was needed for further progress.
▪ Eventually the side in favor of joining overcame their opposition:
• Supporters of liberalization saw joining the WTO as a means to continue the reform process that was already underway.
• WTO membership would also increase foreign investment and subsequently boost technological development.
• WTO membership would provide reason for other countries to further open their markets to China thereby increasing exports and spurring growth.
➢ Impact on China:
▪ Many of the principles which previously governed China’s economic strategy are invalid under the WTO. As such China will be forced to move from a planned economic structure to a market driven economic structure.
▪ Long term benefits to China should be positive, however, the transition period will be difficult, and the people who benefit the most in the long run will not necessarily be the same one who lose a lot initially. Jobs will be lost in large numbers in some sectors and gained heavily in others. In the wake of change many local businesses will be forced to lay off employees and some will close.
▪ Some internal backlash will occur due to the massive challenges that China will face in reordering its economic structure to comply with the requirements of the WTO.
Class 21: Law and Economic Development (4)—The WTO Joins China
Executive Summary
China made tremendous progress in the early years of its ascendancy to the WTO, though much work still remains to be done. Despite the “gap between China’s current policies and its WTO commitments,” it is clear that China’s ascendancy to WTO (and its genuine commitment to meeting its obligations) has benefited both PRC and the global community at large. As you read these reviews, consider the political, legal, social, and economic implications for China’s WTO accession. What have been PRC’s successes so far, and what the challenges the nation still faces as it establishes itself as an international trading partner? In particular, try to identify the way the legal system can be adapted to make fulfillment of China’s obligations more viable.
China’s Legal System and the WTO: Prospects for Compliance by Donald C. Clark (2003)
• China’s accession to WTO was part of larger strategy to bring about massive economic reform (97)
o membership gave domestic reformers the extra leverage of international trade partners
o expanded markets for Chinese products
o continued the work already begun to reduce tariff/non-tariff trade barriers, encourage foreign investment, and liberalize the economy
• Not all lingering violations of WTO policies are willful and deliberate govt. obstructions.
o WTO treaty obligations have become part of China’s domestic law in one of two ways (99)
▪ transformation = WTO obligations are embodied in authoritative sources of Chinese law (e.g. Supreme People’s Court “interpretations”)
▪ mediated incorporation= WTO obligations are incorporated by direct mention in domestic laws (e.g. Supreme People’s Court directives to lower courts)
o China’s generally rejects unmediated incorporation of WTO obligations (i.e. “bare treaty obligations without more are [not considered] binding norms by legal decisionmakers”) 100
▪ “It is hard to imagine that Chinese courts…would override a…Chinese regulation in favor of a claim based solely on a right…granted in…WTO agreement” 103
• China has worked hard to comply with WTO commitments and procedures
o PRC has identified, revised, and even abolished inconsistent domestic laws and regulations 104
o PRC has promulgated new regulations and invested in training and restructuring also 105
o There is growing popular support for WTO outside government circles (Id.)
• Problem, however, is that China still lags in the application and enforcement of compliance regulations.
o Local government protectionism often thwarts central government’s reform efforts. (106-107)
▪ Resistance comes, in part, from local governments’ practical reliance on local industry revenues. (Id.)
o China’s courts lack the capacity to handle the sophisticated cases that WTO inspires. (108)
▪ Poorly trained judges, corruption, no execution/follow-through of judgments (Id.)
▪ Courts exercise their right to decline any difficult or politically sensitive cases. (109)
▪ PRC is taking some promising steps to remedy some of these challenges. (Id.)
• WTO only makes limited demands with respect to a member’s legal system.
o Requirement is not a perfect one, but only a fair one in certain key areas like TRIPS, GATT, and GATS (112)
▪ China only has to make sure that its “proceedings, as actually conducted…meet the tests of fairness and transparency” set forth in those rules. (112)
▪ China’s lack of an independent review of admin. action is its greatest obstacle here. (113)
• Author then identifies three potential difficulties in China’s future WTO compliance.
o Transparency – China has made several “promise[s] to make available a kind of knowledge that does not currently exist and which…will be burdensome to provide” (114)
o Competing Policy Goals – PRC is “paradoxically being asked to exercise central power to further decentralization…exercise administrative power to strengthen judicial power’ (Id.)
o Threats to Rule of Law – Courts and admin. agencies have been authorized to ignore domestic regulations if necessary without clear protocol for formal repeals and replacement (115)
• US must support PRC’s continued reform efforts by promoting “compliance and capacity building” 116
o Local governments should be targeted (Id.)
o Judicial officials trained in non-discrimination and national treatment (117)
China Joins The Trade Wars by Patrick M. Norton (2003)
• China’s first year in WTO was marked by defensive and offensive action.
o “China’s exports were…subject of more antidumping investigations…than any other country.”
▪ Allegations that imports were being “dumped” or “sold at prices less than ‘normal prices’ in producer’s home market” b/c of China’s low labor costs. (1)
▪ China is only subject to “surrogate country pricing procedures for ‘non-market economy’ countries” and critics take issue with these arbitrary calculations. (2)
▪ Chinese exporters are aggressively defending themselves against trade investigations.
o China launched its own investigation into US safeguard measures on US steel imports.
▪ In 2002, China issued antidumping, antisubsidy, and safeguard investigations regulations inspired by WTO standards. It then sought to aggressively enforce these against other countries.
▪ Most of the investigations involve steel or chemical products, and most petitioners are state-owned producers.
▪ China’s rationale for safeguard measures, seemingly a response to US measures, was unpersuasive to many WTO members and seemed retaliatory. (see 12-14!!!)
• Trade remedy cases tend to follow a pattern. “In China, antidumping and safeguard cases are not contests of political equals.” (Read pp. 3-4 for an in-depth economic explanation of how and why state-owned enterprises request these investigations.) Although domestic industries usually win their cases, it is not always clear that a WTO dispute panel would have ruled in the same way. (4-5)
o In practice, however, the harshness of investigation rulings are somewhat mitigated. (5)
o Critics, however, still take issue with improper procedures in investigations. (5-6)
▪ WTO transparency principles vs. China’s “black box” investigations (see pp. 6-7!!!)
▪ WTO’s substance v. China’s “form” when it comes to WTO rules (see pp. 8-9!!!)
▪ Many WTO procedures presuppose an adversarial legal culture (incl. notions of rule of law, impartiality, clear substantive rules, transparent evidentiary presentations, etc.) that China doesn’t have (9)
• Vestiges of China’s socialist economy linger on, despite the march toward a market-based system. (9)
o Chinese state has greater economic interest than is typical in dispute outcomes it investigates.
o Investigations are not conducted by “separate, impartial govt. agencies” so parties with legitimate interests can be reluctant to aggressively enforce their rights against the govt. (10)
• China’s Supreme Court gave intermediate courts’ admin. divisions jurisdiction over WTO trade remedy agreement reviews, though WTO “presumes an independent judiciary” [i.e. free of CCP-control]. (10)
WSJ: Chinese Wield Quiet Clout at Trade Talks by Peter Wonacott (2003)
▪ China walks a fine line as a member of the WTO b/c it can’t alienate any group of members. (2)
o Like rich nations, it supports free trade b/c it needs open markets for Chinese goods.
o Like developing nations, it must resist efforts to liberalize trade that will threaten its unsubsidized agricultural trade, increase vulnerability of its indebted banking system, etc. (Id.)
▪ In the 2003 trade talks, US pressured China to “side with US’s aggressive trade-liberalization push.” (1)
▪ Even though the talks broke down, China made its voice heard – siding with the US at key times, but also playing its “important role within the so-called Group of 22 developing countries.” (Id.)
China Makes Debut at WTO Body in US Steel Row China Daily (2002)
▪ China’s first complaint since entering WTO was lodged against US. (2)
o PRC requested that a WTO dispute settlement body investigate alleged US steel tariffs for violations of international trade rules (1)
o US exercised its right to blocked the independent panel of experts, maintaining that its 3-year safeguards on imported steel [will] help its flagging steel industry.” (Id.)
o China put in a second request that required the panel to automatically be formed.
▪ China argues that developing countries’ steel products should be exempt from US’s measures. (Id.)
o Trade partners from Europe, Latin America, and Asia support China’s request and have criticized the US for trying to block the panel. (2)
When China Represses Workers’ Rights, US Workers Lose Jobs (2004/2006)
▪ China may have an unfair trade advantage on account of its workers’ rights violations:
o prohibits workers from joining unions and engaging in collective bargaining
o denies safe working conditions
o has no minimum wage policies
o engages in forced labor practices
▪ Some estimate that Chinese wages, therefore, cost manufacturers 47-85% less than they should.
▪ This, in turn, means that the price of China’s manufactured goods are lower on the open market.
▪ A 179-page petition was filed with the US Trade Rep by the AFL-CIO and IUC (under the Trade Act of 1974) to request that the Bush administration take serious action against China because of its unfair trade practices.
o US-China trade deficit is $201 billion.
o American workers are losing hundreds of thousands of jobs as companies relocate overseas.
▪ The Bush administration rejected the petition and has been criticized for doing so.
China in the WTO: A Chinese View (2006)
▪ Fundamental changes made in the five years since WTO accession (1-2):
o Market economy and trade and investment liberalization; acceptance of WTO values (transparency, accountability, and national treatment); PRC Constitution revisions to incorporate property and human rights; More public involvement in policymaking; Globalized economy w/ growth in Foreign direct investment and outbound investment; Etc.
▪ Lingering challenges in the years to come (3):
o Despite its commitment to WTO obligations, enforcement still lags.
o Continued criticisms over IPR and piracy concerns.
o Alleged trade barriers, esp. with respect to GMOs.
o Industrial policies (esp. domestic industry subsidies) criticized
▪ PRC’s Five-Year Plan (2006-2010) sets forth strategies to address these concerns (3-4):
o Emphases include technological innovation, rural infrastructure, industrialization/urbanization of the interior, domestic consumption and demand, etc.
o Challenges include a suspicion by outsiders that China’s plan will favor PRC firms and the capability local governments have to thwart the ambitious national agenda.
▪ China’s post-WTO transition years are full of promise, yet uncertain b/c of a number of concerns (5):
o Is China overly dependent on foreign trade?
o Do foreign-invested enterprises reap more benefits than Chinese companies?
o Do Beijing’s policies actually subsidize developed countries in an effort to attract them?
o Is China being treated fairly by developed member nations?
Taiwan Lifts Objections to Chinese Judge at WTO (2007)
• Taiwan was the only trade member to object to Chinese judge Zhang Yeujiao’s appointment to the WTO’s top court, the seven-member Appellate Body, because it doubted her impartiality.
o Annoyed with Taiwan’s obstructionism, all other 150 members pressured Taiwan to drop its objections and end the logjam of dispute resolutions pending the outcome.
• Taiwan acquiesced, though it “stressed that no player in the WTO’s dispute settlements mechanism should ever seek instruction or opinion fro its own country.”
• China, however, maintained that it had acted with transparency and efficiency in the entire process.
1st Chinese Judge Joins top WTO court (2007)
▪ Zhang Yuejiao = 63-year old female, law professor with experience in the Ministry of Commerce, Asian Development bank. She also worked as an intellectual property rights negotiator for China and as a counselor for China’s WTO entry negotiation.
Is It Right to Pirate Software? by Wang Xiadong (1999)
▪ Author criticizes an article written by Xue Zhaofeng entitled “How Can We Battle Microsoft?” that said that China was trying to rationalize its practice of stealing others’ intellectual property
▪ Author instead things that everyone benefits from many kinds of knowledge, often without paying anything for it (1)
o Mathematical innovations, biological inventions, nuclear conversion technologies, etc. are all unpatentable b/c “the lifeblood of human society would fall into the hands of a few” (2)
o From this, he analogizes to the debate over IP law and argues that the discussion should not be cast (as Xue did) in terms of an absolute “right” and of “who owes whom.” Instead the issue is only what is most beneficial to society. (3)
▪ Theoretically, there are three levels of software protection: (4)
o First-level – the boundaries of software copyright infringement do not extend to end-users
▪ current international standard and China’s standard
o Second-level -- the boundaries of copyright infringement extend to a portion of end users
▪ Japan
o Third-level – boundaries of copyright infringement extend to all end users
▪ no country uses this
▪ Chinese computer users heavily depend on pirated software. Immediate elimination of piracy could have serious and adverse consequences on the development of China’s computer field and society. (6)
▪ Author refutes arguments that China’s computer field will grow with the strengthening of copyright protection, instead believing that there is too much protection in place already. The current protections weaken Chinese software companies because the field has only grown b/c of piracy. Without it, these companies would be less profitable, not more. (7)
o Major Thesis: Current Chinese incomes will not allow citizens to buy “expensive authentic, non-pirated software. Rather than demanding that they do, which is simply impossible, why not just…cultivate and foster computer usage in China, [w]ait until the situation has matured and users can afford to buy [the real thing.]” (8)
Senate Committee on Commerce, Science, and Transportation (2006) – Prof. Alford
▪ Intellectual property infringement harms Chinese and Americans alike (i.e. economic and physical).
▪ China has IP laws and the will to implement them, but yet still lacks “uniform, effective enforcement.” (2)
o PRC has met most of its TRIPS obligations.
o PRC has established a special IP chamber at the intermediate court level and staffed it with trained professionals.
o State Council has a 15-year plan for scientific and technological growth, incl. “legal protections to foster innovation.”
▪ Addressing the IP problem requires US understanding of China’s history and governance.
o Confucianism “venerated the past and extolled its emulation.” (3)
o A Western-inspired IP law never existed in Chinese history until the early 1900s. The turmoil of Cultural Revolution and Marxism undermined this, such that it has only been scarcely one generation (since 1980s) that China has encountered modern IP ideas. (4)
▪ PRC needs “effective institutions that run on their own and enjoy popular support” to protect IP.
o Although it’s not a democracy, PRC leaders cannot coerce the populace into following the law.
o Similarly, outside pressure alone is not enough.
▪ In addition to the US Trade Rep’s “Top-to-Bottom” Review, US needs to help PRC build the institutions, legal and civil, which can address these issues.
▪ Businesses should focus on human rights issues, as an “IP protection flourishes in states that nurture free expression and free association.” (4-5)
▪ China’s central government has a key role to play, and US must allay fears of an “excess flow of royalties out of China.” (5)
▪ Finally, realize that increased investment will make China a potentially “strong future competitor” to US interests. (5)
How Microsoft Conquered China (2007)
▪ Microsoft floundered in its first decade in China because it had tried to use the same formulas that worked in US and Europe in the Chinese market.
▪ Eventually, the company learned that it had to become “un-Microsoft” there and weaken its IP protection.
o rock-bottom pricing (instead of charging $100s) b/c of China’s weak enforcement of IP laws
o refusal to protect IP at all costs (instead of always suing companies for illegal use)
▪ Gates: “If they were going to pirate anybody’s software, [I’d] prefer it to be Microsoft.”
o partnering with China’s govt. (instead of fighting govt. as in the US)
▪ sent hundreds of executives to China to collaborate on China’s own software industry development
▪ commissioned a McKinsey study on the state of the industry
▪ opened a research center in Beijing
▪ allowed China to install its own cryptography on operating systems used in national defense
▪ Bill Gates predicts that China will soon become Microsoft’s biggest market.
o Microsoft has 90% of China’s PC market.
o Gates is treated like a celebrity, enjoying the favor of officials and citizens.
o Microsoft has a Five-year plan that complements the PRC’s.
▪ “Tolerating piracy turned out to be Microsoft’s best long-term strategy.”
Class 22: Law and Economic Development (5)—Addressing Challenges in U.S.-China Trade Relations
EXECUTIVE SUMMARY
In this class, we had Mr. Tim Stratford, Assistant U.S. Trade Representative for China as a guest speaker. Mr. Stratford is in charge of overseeing the trading relationship between the US and the PRC. In his lecture, Mr. Stratford discussed challenges in managing the U.S.-PRC trade relationship now that both nations are members of the WTO. He discussed challenges such as: IPR infringement, Chinese policies and practices that disadvantage marketability of US goods, the continuing central role of state-owned enterprises in certain industries and the opacity of administrative decision-making.
Mr. Stratford also presented some political reasons why these conflicts arise. China and the US disagree on important policies that have significant negative impact on the US. Where they do agree on policy reform, China often does not have the capacity (or arguable the will) to change these policies. This becomes crucial in some cases because of the time-sensitivity of the issue. For example, As the Chinese steel industry grows, the American steel industry is harmed.
Finally, Mr. Stratford brought up some possible solutions to these problems. He presented WTO claims, bilateral discussions and controls on exports as options.
In this lesson, we see the recurring theme of China’s reluctance to change and completely open itself to international trade policy. The two readings below, the top to bottom review and the report on China’s WTO compliance, go into more detail on some of these issues.
READINGS
1. US-China Trade Relations: Entering a New Phase of Greater Accountability and Enforcement – Top to Bottom Review
• The purpose of this top-to-bottom review is to identify the core principles and key objectives of US trade policy with China, assess the current status and establish priority goals for each key objective, and identify specific action items that will help the US to achieve priority goals.
• The review begins by giving a backdrop to overall US international trade policy. It identifies the US’s core principles in trading as (1) promoting an increasingly open, rules-based international trade system, and (2) capturing the economic benefits of more open global markets for the American people.
• The review continues by detailing US-China trade policy over the past few decades. It breaks US-China trade relations into 3 phases.
o Phase 1 (1986-2001): US trade policy toward China was focused on urging it into more rules-based system.
o Phase 2 (2001-2005): Began in Dec 2001 when China joined WTO. US monitored China’s integration into global trading system and ensured compliance with accession obligations.
o Phase 3 (2006-forward): US implements third core international trade principle with respect specifically to China: the pursuit of a more equitable trade relationship. Moved from monitoring compliance to cooperating in bi-lateral relationship.
• The review then outlines 6 key trade objectives for China, a summary of outstanding issues and opportunities and a list of short-to medium term goals and challenges they face in implementing. Of key importance are objectives 1, 2 and 3.
o Obj 1. Participation – to encourage China to participate more fully in international trade arrangements, the WTO and others.
o Obj 2. Implementation and Compliance – most notably to encourage China’s implementation and compliance with intellectual property and anti-dumping regulations.
o Obj 3 Enforcement of US Trade Laws – to ensure full enforcement of US trade remedy laws, China’s compliance with rules for food safety, and seizure at US borders counterfeit product.
• Finally, the review details the actions that it will take to ensure that their objectives will be carried out. Highlights of these actions are:
o Expanding Enforcement Capacity
▪ Specifically hiring more American staff persons to enforce IPR
o Expanding US Trade Policy and Negotiating Capacity in Beijing
▪ Posting senior trade official at US embassy to support pursuit of US trade policy interests in China
o Strengthen bilateral dialogue specifically on current and potential problem areas
▪ On participation on Global institutions (Doha Initiative, GPA, WIPO)
▪ On environmental protection
▪ On administration of anti-dumping laws
2. 2007 Report to Congress on China’s WTO Compliance, December 11, 2007, United States Trade Representative
• This is an annual report written by the United State Trade Representative on China’s compliance with commitments made as a result of its accession to the WTO. The report is most concerned with the ways in which China’s implementation of certain laws have affected its trade with the United States. The US is holding China more accountable as a WTO member now that its five-year initiation period is over.
• Largely, China’s implementation of WTO regulations has benefited the United States. However, there are still areas of Chinese law and policy which fall short of fully complying with basic WTO regulations to the detriment of the United States. Many of these shortcomings are a result of China’s transition from a centrally planned economy to a free-market economy governed by rule of law.
• The report discusses six areas in particular which have been affected:
o Intellectual Property Rights
▪ China did not address certain critical enforcement efforts to reduce IPR violations.
o Industrial policies
▪ China used polices to limit access to foreign goods and encourage Chinese industry
o Trading rights and distribution services
▪ Regulations delay market access to foreign-imported copyrighted products
o Agriculture
▪ Agricultural trade with China opaque because of selective intervention of China’s regulatory authorities
o Services
▪ China frustrates US access to services (banking, insurance, etc) through opaque regulatory practices
o Transparency
▪ Regulatory practices still suffer from systemic opacity making it difficult for businesses to enjoy all benefits of China’s WTO membership.
• The report shows that the United States has used both bilateral and multilateral arrangements to resolve these issues with China. Bilateral arrangements involve direct discussion with China. Multilateral arrangements involve WTO dispute settlement mechanisms and US enforcement of trade laws provided by WTO’s rules-based system. The WTO’s provisions serve as a sound fallback if bilateral discussions fail.
Class 23 & 24: Social Order and Justice (1)—Living with Nature
This class generally outlined the countless environmental problems that plague China today. The articles discuss the severity of issues with air and water pollution, water shortages, acid rain, etc, as well as the ways the Chinese government and multinational corporations have been addressing these issues through policies and practices.
1. Elizabeth Economy and Kenneth Lieberthal, “Scorched Earth: Will Environmental Risks in China Overwhelm Its Opportunities?”
This article begins by discussing the overwhelming environmental obstacles China faces due to having such a large population and being limited in natural resources by comparison. It focuses on the water shortage in China, stating that in Beijing the average amount of available water is only 1,100 cubic meters per capita per year. Even worse, most of the water in China is incredibly polluted- 40% is so polluted that it is unusable for any human, industrial, or agricultural purpose. In addition to problems with water quantity and quality, China struggles with sky rocketing energy needs due to the growing urban society and industrial sector, soil erosion, and air and water pollution.
All of these environmental problems affect China’s reputation and make it less desirable for foreign investors, such as multinational corporations. However, the article suggests that multinational corporations, such as Coke and Wal-Mart, are in the best positions to improve environmental standards in China. As China raises its environmental restrictions and regulations, companies have a unique opportunity to improve their global image and increase profits in the Chinese market. By making every effort to reduce harm and proactively investing in environmental protection efforts (through upgrading technology etc.) companies can gain clout in China and internationally. Companies that have successfully done this include Coca-Cola, GE, Mattel, and Shell. The article includes by saying that multinationals can’t afford not to do the right thing- Environmental degradation produces risks and opportunities that must be factored into corporate strategies.
2. William Alford, et. Al. “the Human Dimensions of Pollution Policy Implementation: Air Quality in Rural China”
Alford’s article begins by discussing laws and organizations that have been created in China to address problems with air and water pollution. He explains how enforcement has been the primary obstacle in actually effecting change from these reforms. The article goes on to consider how the Chinese people are educated about environmental issues and whether people in China are actually able to act on the knowledge they receive based on economic and legal choices.
Alford selected the portion of his article that focused on the “Law” in this area. This section generally states that efforts at improving environmental practices through the law have been unsuccessful. Despite laws that have been passed in recent years, the legal system as a whole has not been used to help enforce these reforms. Alford suggests that ineffectiveness stems from people not knowing about reforms and/or not believing individual actions will actually reduce the problems in China. His suggestion is to increase educations through government programs and the media, and try to convince people that appealing to the legal system could result in individual victories when environmental polices are being violated. Thus the keys looking forward are 1) education and 2) greater state commitment to improving practices and enforcement of environmental policy.
3. Wang Canfa, “Chinese Environmental Law Enforcement: Current Deficiencies and Suggested Reforms”
The selected portions of this article begin by discussing the problems with water shortages, soil erosion, and air pollution China’s EPA sought to help remedy. It goes on to say that implementation of the EPA has been poor and that enforcement has been incomplete- with violations not being investigated or punished in time and offenders being free from corrective responsibility. The “lax” enforcement discourages people from bringing claims against offenders and reduces incentives for offenders to apply with environmental laws. These problems stem from inadequate procedural laws, the rapid pace at which environmental legislation was passed (so that the country wasn’t actually in a place where it could comply), and the incentive of actors in the Chinese market to cut corners for short term economic benefits at the expense of the environment. In the end, China must find a balance between its economic interests and environmental protection. The article suggests the best ways to do this are/have been: (1) through the establishment of an Environmental Supervision Bureau (ESB) to be a watchdog for violations (SEPA has thus far established 5 regional centers for environmental law enforcement and they have been very successful); (2) detaching the environmental agencies at local levels to reduce corruption; (3) Replacing GDP with a “Green GDP”- this entails adjusting China’s GDP for environmental costs by deducting the cost of natural resource extraction and ecological damages from the traditional GDP. The last section of the article we read focused on the problems with environmental cases in China’s courts. It gives several examples of unsuccessful cases and then discusses some success stories. The article concludes by suggesting that China look at the mistakes of the Western industrialization process to create effective legislation.
4. Andrew Batson, “China Eco-Watchdog Gets Teeth”
This article contains interviews with Mr. Wu, a worker at SEPA, discussing how SEPA has been cracking down on environmental violations and being much stricter about what projects it approves based on their environmental soundness. It also mentions that SEPA has been working with banks to try to get them to deny polluters access to loans and has been attempting to increase transparency in environmental practices. It concludes by stating that Mr. Wu rejects 30% of the projects submitted for environmental impact assessment (most of which are adjusted and approved when they comply with current standards).
5. Chris Buckley and Nick Macfie, “China’s Environment Ministry ‘lack local powers’”
This article weighs the benefits and costs of China’s Environmental Ministry. As a Ministry it does not need approval from bureaucracies focused on economic growth. However, it is also forced to delegate more to local governments and risks lax enforcement and corruption.
6. Jacques Leslie, “China’s pollution nightmare is now everyone’s pollution nightmare”
This article beings by running through all of the consequences of the degradation of the Chinese environment (including acid rain, and animal extinction). The article suggests that the West is in part to blame for exhibiting unsound practices itself. However, it also suggests that the Chinese officials choice to follow in the footsteps of the West is equally blameworthy (such as promoting the auto industry as a pillar of Chinese economy). The article concludes by blaming the U.S. for failing to guide China away from bad practices when it had the chance and suggesting that as consumers today we should stop buying products made from illegally cut wood or from coal-fired power plants. Drastic action must be taken.
7. Austin Ramzy, “Is Beijing Manipulating Air Pollution Statistics?
This last article discusses China’s scare at having issues with the summer Olympics due to it’s incredibly poor environment and air quality. It discusses the $17 billion spent on attempts to improve the environment before the Olympics and the possible misrepresentations in Beijing’s air pollution reports (changed to indicate the air quality has improved more than it actually has). It concludes by posing the question of whether any of the changes made for the Olympics are sustainable.
Class 25: Social Order and Justice (2)— Criminal Justice
Summary: The focus of these readings is post-Cultural revolution criminal law. The main idea is that, while the “black letter” criminal law and procedure has improved significantly over time, the practical implementation of the reforms has a long way to go. As we learned from the guest speaker, Yang Jianli, the criminal laws are not well-followed by the state security apparatus.
Albert H. Y. Chen, An Introduction to the Legal System of the People’s Republic of China
This reading gave a pretty detailed account of how criminal procedure ought to work in China—that is, what the law actually says. Alford said not to sweat the details, so here are the highlights:
The are several different criminal punishment systems:
• (I) The basic (5-step) criminal procedure:
o (1) Initiation: Usually, cases are initiated by the police, but private prosecution is possible. Prosecutions can also be initiated by state security organs.
o (2) Investigation: once the case has started, the police (or state security) has five basic coercive measures over the defendant that they can use to build their case: examination, bail, surveillance, arrest, and detention.
▪ Distinction between arrest and detention: An arrest requires approval from the procuratorate and allows confinement of the defendant until trial. Detention doesn’t require pre-approval (or arrest), but is (in theory) limited in duration.
o (3) Prosecution: the procuratorate reviews the evidence collected during the investigation and has an opportunity to interrogate the defendant. At this point, the procuratorate can: (1) send the case back for more investigation, (2) initiate prosecution, or (3) decide not to prosecute (this decision can be appealed by the alleged victim). If the decision to prosecute is made, the case is sent to a court.
o (4) Adjudication: Upon receiving the case, the Court can either decide to have a trial or drop it. **Important: there is not exactly a presumption of innocence—the trial starts at more of a “neutral” position but the prosecutor does have the burden of proving guilt. “the defendant should be held ‘not guilty’ where the evidence is insufficient to prove that the accused is guilty” (p. 212)**
▪ Basic structure of trial:
▪ (1) Opening of trial and reading of the indictment
▪ (2) Defendant and victim make statements. Defendant is interrogated by the procurator and (possibly) the victim, the victim’s lawyer, and the judge.
▪ (3) “Court Debate”—the lawyers on both sides (plus the victim’s lawyer) make speeches before the court and debate one another.
▪ (4) Defendant makes a “final submission”
▪ (5) Deliberation and judgment. Judgment can be on the same day or up to one and half months later.
▪ The defendant, victim, or prosecutor can appeal. The judgment can be appealed once.
o (5) Execution of sentence
• (II) Another method of criminal punishment is the “Security Administration Punishment Regulations” (SAPA)
o No court procedures here, just some sort of administrative hearing. The “offenses” that fall under SAPA are really broad and strange—i.e. “deliberately spreading rumors or using other means to incite disturbance,” “insulting other persons” and “maltreating family members.” And you can get fines and jail sentences (up to 15 days). Only recourse is appeal through the Administrative Litigation Law.
• (III) “Re-education through labor”
o Like SAPA, there are few procedural protections for defendants. And, again, the crimes are broad. Appeal is through the Administrative Litigation Law.
• There are some other forms of punishment that are similar to (II) and (III), including particular re-education and rehabilitation programs aimed at drug addicts and prostitutes.
Rights Without Guarantees are Worthless
This short editorial is written in response to reports that defense lawyers were not being allowed to meet with their clients. The lawyers filed a lawsuit for the denial of access to their clients, but their claims were rejected. The editorial emphasizes the fact that “rights” bestowed in Chinese law are often not backed by any effective means of recourse.
Yan Xianghua, “It’s Time to Revise the Criminal Procedure Law Again”
This is a short article outlining some proposed improvements to China’s criminal law
• The author’s main methods of achieving fairness in the criminal justice are: empowering defense lawyers and making the process more adversarial, bringing China’s criminal codes and procedure into conformance with its international obligations (i.e. human rights conventions), incorporating rules of evidence into criminal procedure, increasing judicial review, creating more boundaries between prosecutors and judges, and restricting overly broad laws.
China to reform death penalty trials—Xinua
• China’s Supreme People’s Court (SPC) has the authority to review all death penalty sentences.
• In the past, the SPC had devolved this power to regional courts and many death row inmates were denied their right to take an appeal. But this article notes that the SPC has re-asserted this power and, as of July 1, 2006, now holds open hearings on death sentences.
• The article has some interesting quotes from the SPC spokesman, arguing that China needs to keep the death penalty because China is still in an “initial stage of socialism… where many people still believe in the principle that ‘a killer should pay the victim with his life.’”
Articles about Yan Jianli
The rest of the readings for this assignment report on the detention and trial of Yang Jianli (the political dissident who came to class). The basic story is this: Yang was a protester who supported the student protests Tiananmen Square and elsewhere. He was banned from returning to China. In 2002, he snuck back to China with a friend’s passport to support labor protests. He was detained incommunicado for almost a year. Two years after being detained, Yang finally stood for trial. He was sentenced to five years on false espionage charges. Throughout the whole ordeal, Yang was denied most of the basic protections that he was entitled to under the laws discussed above. While his case was especially politically charged, Yang reports that his experience is not unusual—even for more run-of-the-mill criminal offenders. The most interesting report is that from Xinhua (the state news agency) which really whitewashes the whole story, portraying Yang as a bona fide Taiwanese spy.
Class 26: Social Order and Justice (3)—Women, Gender, and the Law, and the One-Child Policy
1. State Council Info Office, “Gender Equality & Women’s Development in China” (2005) Parts VII (pps 10-11), & IX (ppgs 12-13)
• Marriage laws of 1950s and 2001 established & reiterated the basic principle of equality b/w men & women in a marriage. The laws forbade domestic violence, bigamy & aimed to protect women’s rights. The Law on Population and Family Planning (2002) stipulates that both husband & wife must be responsible for family planning. The same law forbids fetus gender identification by means of ultrasonic methods for non-medical purposes & forbids termination of a pregnancy based on fetus’ gender for non-medical purposes. (further stressing equality of men & women).
• Along with the Marriage Law, the Population and Family Planning Law, the Law on Rural Land Contracting, and the Law on Protection of Rights and Interests of Women, China has promulgated over 100 rules & regulations concerning the protection of women’s rights. 22 provinces have outlawed domestic violence & the Chinese Gov’t has cooperated w/ NGOs to set up alarm centers, anti-domestic violence hotlines, shelter, medical & psychological help for victims of domestic violence. The legal rights of female criminals & criminal suspects are also protected by ensuring that they are jailed separately from male criminals & that they are managed by policewomen.
2. Human Rights in China, “Implementation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in the People’s Republic of China” (2006)
• Although formal equality b/w men & women is guaranteed under various components of Chinese domestic law and there are many references to discrimination, the legal framework is lacking in its ability to enforce CEDAW b/c there’s no definition of discrimination in China’s laws!
6. Therese Hesketh and Zhu Wei Xing, “The Effect of China’s One-Child Family Policy after 25 Years,” New England Journal of Medicine (2005)
• The one child policy was introduced in 1979 when the Chinese gov’t claimed it was a short-term measure w/ the goal of moving toward a voluntary small-family culture. In 1979, the govt began an ambitious program of market reform following the economic stagnation of the cultural revolution. Strict population containment was seen as essential to economic reform & to an improvement in living standards.
• The policy includes restrictions on family size, late marriage & childbearing, & the spacing of children (when 2 kids are allowed). State Family Planning Bureau set s the overall targets & policy direction, and the Family-Planning committees @ provincial & county levels devise local strategies for implementation. There are exceptions to the policy including: families in which the 1st child has a disability, or both parents work in high-risk occupations, or both parents are from one child homes. The policy is underpinned by a system of rewards and penalties (economic incentives for compliance & substantial fines for noncompliance) given out usually by local officials.
• The policy results in a heavy reliance on long-term contraception which keeps abortion rates relatively low. Many deliveries of babies that aren’t officially sanctioned occur at home w/ untrained people & often lead to death of baby and/or mother. Chinese authorities claim the policy has prevented 250-300 mill. Births. A shortage of women may increase socially disruptive behavior in men who are left unable to marry & have a family & the scarcity in females has resulted in kidnapping & trafficking of women for marriage & increased #s of commercial sex workers. There are fears that these consequences could be a real threat to China’s stability in the future.
• The rapid decrease in birth rate combined w/ an improving life expectancy has led to an increasing proportion of elderly & an increase in the ratio b/w elderly parents & adult kids. B/c a lack of adequate pension coverage in China, the financial dependence on offspring = still necessary for about 70% of older pple. This has been referred to as the “4:2:1” Phenomenon: increasing #s of couples will be solely responsible for the care of one child & four parents.
• Increased wealth & freedom make it harder for the govt to enforce the policy. Fines aren’t a deterrent to many wealthy people & increased freedom of movement has made it hard to track down people who violate the regulations. The aforementioned reasons suggest that a relaxation of the policy would be desirable.
7. Hu Huiting, “Family Planning Law and China’s Birth Control Situation,” .cn interview with Zhao Bingli, vice minister of the State Family Planning Commission (2002).
• An interview with Zhao Bingli, vice minister of the State Family Planning Commission. Zhao said that the policy was implemented because of 3 factors: 1) the central govt had attached a great deal of importance to the work (of family planning), 2) the basic policy is now widely supported by the people (after years of implementing it) and 3) a set of successive experiences have been formed which suit the country’s current situation & modern & economic & social development. Zhao said that 30years of efforts has resulted in effective population control & some 300 million births prevented. He noted that the policies in ethnic minority areas are more flexible b/c specific birth policies are set by each proving according to local circumstances. He also stated that the policy has not become more flexible, and those that think it has are mistaken about 3 aspects of the law: 1) the policy imposing a social levy ensures that the govt will restrict people who do not comply with the policy, 2) the law clearly stipulates that if you don’t comply you have to face consequences of mandatory legally imposed economic penalties, and 3) the policy objective is to protect & encourage those families who carry out family planning in agreement w/ the policy.
8. Susan Greenhalgh, “Women’s Rights and Birth Planning in China,” Panel at the Congressional-Executive Commission on China (2002).
• Intro- the author asserts that American’s exclusive focus on the coercive aspect of the One-child Policy has limited our understandings of, and our responses too, new developments in Chinese population affairs. She states 3 such limitations:1) the coercion critique has paid little attention to the violations of women’s interests & rights. 2) the coercion story divides the world into 2 opposed systems: capitalist/socialist, free/coercive, good/bad—and defines the presence of coercion as the only thing worth noticing about the Chinese program. 3) the coercion criticize has encouraged punitive responses from the American govt, rather than constructive engagements w/ Chinese reformers.
• Dynamics of Reform:
o Reforms in the State Birth Planning Commission- by early 1193, those in charge realized that fertility had fallen to a level far below what they’d imagined possible. With the pressure to produce lower population results off, in 1993-1994 Commission Leaders began to be concerned about the social, physical, & political price that had been paid for pushing the numbers down so fast. The 1994 International Conference on Population and Development held in Cairo led to collaborations w/ foreign organizations advancing reproductive health agendas.
o New Voices from Outside the State- since mid 1990s, a group of women scholar activists has begun to speak out about the harmful as well as helpful effects of birth planning on women’s Health & well being. Because the policy remains a ‘basic state policy’ of the party & govt, women’s advocates must be very cautious in criticizing it. Transnational links and external resources have been critical for these women.
• A Gender Critique from outside the State
o Contradictory Effects on Adult Women
▪ On the positive side: birth planning has facilitated women’s personal devlpmt, enabling them to acquires skills & education & devote themselves to work & income acquisition like never before.
▪ But, in rural areas: women have been treated less as subjects than as objects to be managed & used in the achievement of state plans & goals. This objectification has affects on their psychological well-being & socioeconomic security.
o Threats to Infant Girls
▪ For every 100 girls born, 117 boys are born. This = much higher than the biologically normal level of 106. in the past infant girls were sent away, hidden, abandoned, or even killed; today female fetuses are increasingly being aborted. P. 64.
• NGO Projects on Behalf of Women & Girls
o Peasant initiative in Solving the Problem of Abandoned Baby Girls- strict limits on births have led many couples to abandon infant daughters. Research suggests that a whole informal culture of adoption has developed that exists largely outside the official apparatus of the state: babies are adopted directly from their birth parents or intermediaries. In rural areas, at least, adoption seems to be an arena in which women are gaining informal power to shape family size & composition & to give abandoned girls good homes. P. 63.
• Challenges & opportunities ahead
o Political economy
▪ First- the challenge of political economy: the notion that women are essentially different from men can be expected to shape the women’s rights that will develop in Chinese legal thought & practice. P.64
o Traditional culture
▪ Second- the challenge of traditional culture: in the countryside, where the majority of the popul. Lives, the basic social & gender organization of the family has been quite resistant to change. These cultural constructs will color the way legal notions of women’s rights develop. P. 64
o A stable but unpredictable demography
▪ Third, the challenge of an unknowable demographic future: should the birth rate somehow rise again, or turn out to be higher than the current estimates suggest, the reforms may slow. P. 64.
o Falling desires for children
▪ Social change: in many parts of the country couples want at most 2 children, and in some of the more developed rural areas they want only one. These changes have made high-pressure tactics in the birth planning program increasingly unnecessary. P. 64.
o A new gender consciousness among state officials
▪ A new gender consciousness in the State: since the mid 1990s, the Chinese state has made women’s economic, political, & educational development a newly important part of its ongoing reforms. This new commitment to women is a promising development. P. 64.
9. Da Yong, “New Policy Eases One-Child Restriction,” China Daily (2004).
• This article explains that a policy developed in 2004 in Shanghai would make it easier for locals to have a second child by allowing a couple who both were single children themselves to have a second child, the new policy also: cancels a 4-year interval period b/w the 1st and 2nd child set out in older provisions, allows a newly organized family to have one more child even if the couple have children from earlier marriages, and that now urban families with one disabled parent can have a 2nd child (just as is the policy in rural areas). The author notes that these policy adjustments indicate greater humanitarian care.
12. Jim Yarkley, “China Sticking With One-Child Policy,” New York Times (2008).
• Article declares that China is sticking with the one child policy. Zhang Weiqing, the minister of the Nat’l Population & Family Planning Commission said China wouldn’t make any major changes until roughly a decade from now, when an anticipated surge in births is expected to end. He said that 200 million people would enter childbearing age in the next decade & abandoning the policy too quickly could add unwanted volatility to the birthrate.
13. Michelle Chen, Leaving One-Child Behind, Legal Affairs (2006).
• This article is about a Chinese immigrants seeking asylum in America from China’s one-child policy. The article notes that American federal judges have ruled that male spouses sometimes suffer under the coercive birth control through heavy fines & other penalties for noncompliance or by being denied another child. There’s a backlog of 140,000 asylum claims currently. 1996 Congress officially recognized this form of persecution by amending the definition of ‘refugee’ in the Immigr. & Naturalization Act to include Chinese citizens subjected to ‘coercive population control’ programs. An asylum claim must be filed w/in a year of arrival & the individual must only prove that the persecution occurred. In the US Citizenship & Immig. Services & Dept of Justice’s Exec. Office for Immig. Review, overall approval rates were 36 and 44 percent, respectively in 2003.
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[1] i.e. “not arouse comment and criticism from neighbors” (56)
[2] Offenses include unfilial conduct, lawless behavior (theft, robbery), property disputes, offenses against elders, oppression of the young, and other “offenses that disturb family solidarity or cause decay.” (59)
[3] In this case of identity theft, the court upheld the victim’s constitutional right to education and held the defendant liable for infringing upon this right.
[4] Alford’s “Clean Air? Clean Processes” Article says 150 members, so numbers might have increased.
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