I have now been living in China for almost 4 month and I’d like to write a little about my impressions so far from personal experience and in talking to the people. As you all know by now, my views on things like the rule of law, human rights and democracy may be quite different from some of yours (see the posts and comments here, here, here, here, here and here for example).
With regard to the rule of law, I see it as the best practical solution for the foreseeable future to secure basic dignity of the vast majority of Chinese citizens despite the ideal of trying to institute society-wide virtue may be a better ultimate solution in the very long-term. I also believe that democracy (at least some versions of democracy) is a good in itself. Many of you have disagreed with these views (though I’m still not completely sure the reasons why) in vigorous debates we have had. The rule of law, which for me, is simply the practice and desire of making law as objective, transparent, reasonable and non biased as possible so as to protect against abuses and misuses by interested parties, has been rejected by some of you but you haven’t supplied any feasible alternatives in its place in any of your criticisms.
However, my experiences in China so far has confirmed my views quite palpably to me. China does need serious reforms. Not only that but the people are very vocal for these kinds of changes. They demand them. Every single person I have spoken with (and I have spoken with quite a lot so far as I have made it my goal to speak with people about what they thought about their country and government) have serious criticisms and grievances of their country. Granted the people I have spoken with may be different from the average Chinese as I am in the Haidian area of Beijing (where the so-called Chinese Silicon Valley is located) where the average person is probably significantly more educated than the average Chinese but I see no reason to believe that their views are that much different than the folks in the rest of China.
There are massive problems with modern Chinese society. The country needs reforms. There is rampant corruption, abuse of power resulting in the poor and regular people’s lives being destroyed, and massive income inequality. I see this everyday and hear people talking about it almost daily. There is essentially little to no rule of law. Whoever has money and connections almost always get their way, the evidence be damned. This is widely known in Chinese society. There is wide-spread poverty and despite the growth and improvements, many people even in the large cities such as Beijing live lives substantially below the standards of living in the US. The property prices have roughly doubled in the last 3 years (due to a housing bubble caused by rich investors buying houses not to rent them out but for profiting on the resale) and many people can hardly afford homes. The environmental problems are serious (but from what I hear improving) and the food safety issues are a constant worry for many Chinese.
From what I hear from people, they demand changes such as instituting further the rule of law and they demand more rights. Granted their concerns are often not what the western media portrays as what China really needs. They receive quite a bit of personal freedoms of expression, for example and that is not quite their concern. I don’t believe there is much concrete difference in this regard with the US nowadays when every criteria of freedom of expression is taken into account. But their quality of life is significantly harmed by a lack of fairness and objectivity in the legal system, a lack of security in financial and health matters, anger over corruption, bureaucratic inefficiency, environmental worries, etc.
Now I do believe that many of these issues are deep, society-wide problems in which the government has done quite a bit to help out so far. It takes the whole society to be truly civil and modern. For example, take the terrible traffic. It’s not that China doesn’t have the right laws regarding traffic. It’s that drivers and pedestrians are very ignorant and that there are not enough resources in terms of civil engineering, traffic police, and competent legal system to curtail the behaviors (disobeying the rules of the road) that cause traffic jams. It’s not that China doesn’t have good laws. Even Chen Guangcheng said that China has very progressive laws in protecting workers and the disabled. It’s that the other aspects of the rule of law that are not in place. Such things as a well-informed population of their rights and willingness to take action necessary for affirming the institutions of law such as bearing witness and so forth, the lack of competently trained lawyers/judges, standarization of legal and police procedures which causes huge problems for society.
As China grows more prosperous and educated, I believe many of these problems will be ameliorated due to those very factors. But I can’t help but think that the government can do more in many of these instances such as train lawyers and judges, enforce the laws, make the system more efficient, more transparent and to educated the public on their rights. In fact, during speeches by China’s new leaders, they acknowledged many of these problems and have promised to institute many of these measures Chinese people demand. It’s not plausible that those who live in the US and travel to China on occasion for vacation only to go back to their homes in the US know more about China than the Chinese people or the Chinese leaders. These are not stupid or western-media-brainwashed people. They are proud Chinese who live and deal with the realities of modern Chinese society everyday. I believe that it’s time to take a serious, sincere look at China for what it is both good and bad. We have all done a great job of defending China when it is needed. But we must never forget that China has many weaknesses and if we are true sinophiles, we must also not blind ourselves to the reality and do what is right for China’s future.
N.M.Cheung says
Greeting, as someone who has visited China yearly for the last three years I couldn’t agree more with your sentiments. Yet we have to understand the cause of the problems. No one will disagree with you on the issue of democracy and the rule of law. In the West it has more than 300 years to evolve, after all the U.S. Constitution is a beautiful document, a marvel to read, yet the slavery and genocide of Native Americans persisted long after the Founding Fathers. Civil rights even today is spotty, and income inequality is worsening. Deng and others chose Capitalism as a temporary measure in face of a crisis after Cultural Revolutiomn. The present leadership is very much aware of the problem and working hard to alleviate them. On the question of law I am sure there are laws in the Chinese Constitution but it’s still a piece of paper. It takes time and practice to reverse course. Even Mao with his prestige can’t impose total egalitarianism and change human nature not to mention thousands of years of Chinese history. We are here not to defend undefensible, but give some backgound and understanding for an evolving experiment in human history.
YinYang says
For Chinese of my parents generation, I would say, every time there is some sort of difficulty that they cannot personally solve, their tendency is to find friends or relatives of higher authority in relevant area to help them. We may attribute acts from higher authorities in such instances as corruption. But, nevertheless, society has evolved and managed to have civilization over a very long period of time.
I would say, relatives of my generation, especially in tier1 and tier2 cities have a much higher propensity to seek redress through legal means.
So, while I agree with Melektaus it’s important to criticize China where it is due, I feel the same as N.M.Cheung – that China is in a transition that simply takes time.
It is equally critical for Chinese society to successfully make this transition and not be derailed.
tc says
Keen observation, Very honest, sincere analysis. All the good intentions. Thanks.
Wahaha says
I believe the corruption in China is not much worse that that in West.
I had trouble sending my explanation to [email protected], don’t know why.
melektaus says
Much of these problems are definitely “transition” problems which are faced by many developing and even developed countries. However, I believe that the Chinese government could have facilitated a smoother transition if it had paid more attention to the needs of its people. The government has some very wealthy people and they live sheltered lives.
However the central Chinese government is also not like the US government in that the top Chinese leaders are incredibly capable, sincere, and non corrupt (I believe that the corruption is at the local and intermediate level of government). When the central government acts, it almost always solves the problem efficiently. But it takes a lot of pressure from the population to get them to realize there are huge problems. It takes a critical mass of attention for them to reach consensus (which is how the government works, a slow but still democratic process). The public understands this and are trying to get reforms passed. The government is only recently (maybe within the last few years) aware of these modern problems from what I gather.
Rhan says
A reasonably writing, i think many readers want to read something more balance (my view) such as this.
The so called “transition” take so long, seem like CCP expect a revolution to tell tem it is long overdue. The progress were largely due to exploitation of workers by the elite, i think this would not happen during Mao era. I dare say every top CCP leaders indulge in corruption, cronyism and nepotism, the usual excuse is that it is a small amount should measure against GDP. Many economist that pro-government (in authoritarian country / one party state, incumbent party = government) in my country often argue we dont have exact number to measure corruption, thus no proof to assert corrption is a big issue. I can’t argue with that, but i think most people perceive corruption as bad and severe, if given choice, they would want a new government.
Guo Du says
Corruption in China is a massive and deep-rooted problem refined over a few thousand years. At its worst, it went all the way to an Emperor facing bankruptcy. At its best, corruption would be everyday life for many, but the Central Government would be doing its best, and reasonably effective, in keeping it contained. I think the current Central Government is much closer to the latter than the former.
But in the globalised world, this is evidently not “good” enough in the sense that it weakens China’s competitiveness and stability. A truly (and thoroughly) corrupt country cannot possibly have done what China has in the past few decades though. I do not wish to be rude to other countries but going through the list, starting from Asia none of the thoroughly corrupt countries can achieve similar developments, even with a much smaller population burden. I believe there is a logical reason for that: China’s corruption has been reasonably “balanced”.
Corruption is also a matter of cultural perspective. In Germany, political contribution is nearly “mandatory” under the table for construction projects. What about promising voters the moon? It’s blatant bribery on a massive scale. Not delivering after being elected turns a case of corruption into fraud. And that is happening in every election big or small.
I fully agree with your general description of the rule of law. But like all things, when taken to the extreme, it backfires. Using the US as an example, the independent arms in the rule of law framework are legislature, executive, and judiciary, something like that. They are supposed to be checking and balancing each other. Are they? A catastrophic majority of the humans who run these “independent” arms come from a single profession, incestuously related. Lawyers who run the country, ironically, are commonly regarded by the people as crooks! And when judges with political affiliations make the final decision with less and less regard for the Constitution, they are virtual dictators whom no one seems to mind. Very dangerous.
Does the rule of law make sense? Most of the time. But there is a rising number of incidents when the legal process is being plainly ridiculous. Is suing a bunch of coins the action of a sane government? Is a guilty person getting off on technicality serving the simple original intent of the law: to maintain fairness? The law should be there to provide a reasonable and civil social framework, not to override common sense for the sake of accommodating clever legal arguments, and meeting a “Western” definition of “modern.”
The Chinese “transition” has been happening at an amazing rate that any realist would not have thought possible. To a civilisation this size, encumbered by so much tradition, fifty years would not be a lot of time. Some people will be unhappy, that’s inevitable no matter what. Some of the complaints are legitimate, some are petulant, some due to a weird humility (客气）to outsiders. A typical Chinese, assuming he is happy with the system, would not boast to others about how wonderful it is, unless he has been educated in the West 🙂
But the transition macro-managed by the CCP so far seems as good as it is feasible, albeit very imperfect. I for one wish for two things:
ONE, the CCP can maintain this balancing act for long enough to stabilise “Modern China” sufficiently to resist “invasions” coming from multiple-unconventional channels.
TWO: the end-point of this transition is NOT a US style society, but a society that balances the needs of the majority (not all) and protects the civilisation itself; has learnt from others’ mistakes as well as China’s own ones, and would work for a respectable length of time before needing another incarnation.
N.M.Cheung says
@Rhan
A critique from the left certainly is valid; exploition of the workers and nature by the elite and state. Deng chose a pragmatic approach whatever the color of the cat to solve an urgent problem of poverty. We may look at West for human rights concern, but the nature of Capitalism is by definition exploitation, and West has 300 years to refine and disguise its nature and rewrite or forgotten its past. It certainly would not happen during the Mao era, that’s why I detected some nostalgia for a simpler and more egalitarian and idealistic time during my visits. Yet least we forget Cultural Revolution, Mao attempted to impose his will by fiat and mobilized red guards to battle bureaucracy and history and he failed. The resulting backlash contributed to the cynicism and worshipping of money of today. Chinese social relationship (guanxi) is such that the relatives of the leaderships inevitably benefitted from their ascension, no fiat from above can change it completely. The central government use the practice of “Killing Chicken to Warn Monkey” on test cases to publicize its will to battle corruption. It does take time to reverse attitude bulit up in the last 30 years and a new generation more idealistic as the internet chatter shows.
William says
Very sensible post, and I’d agree that it’s worth looking at what various people living in China would think of things we say here.
I wonder what they’d think of @melektaus‘ point that the central leadership is less/not very corrupt. I guess lots of people in other provinces (not just those with grievances they want to take to Beijing!) would agree. Others might say the central leaders’ families control most big business, and assume (rightly or wrongly) that they’ve got there by virtue of their names, and maybe also through people wanting to give favours, indirectly, to said leaders.
Main thing I wanted to say though is this: what you refer to with “those who live in the US and travel to China on occasion for vacation only to go back to their homes in the US” touches on a very important truth, and one that I’ve learned / been through myself. Living away from China (in my case, Europe) made me very defensive about (mainland) China generally, and I used to hear quite a lot of hostility and very ignorant criticism. Very soon that made me ready to defend almost anything about China, even the obvious faults and problems that you give a quick summary of, above.
(The ignorance and hostility is real – I used to go onto BBSes back in the day, using either a Western or a Chinese-sounding username, and the reactions I got from people were very, very different).
Now having moved back to China it’s all changed – I’ve become quite a lot more cynical about a lot of stuff, or at least accepting that there are huge problems and some are getting worse. I just hope that I have some sort of a backbone, and that my views aren’t completely dictated by the social / public opinion climate I happen to be in.
Is the grass always greener on the other side?
melektaus says
I don’t want to give the impression that I am denying all the great work that has been done by here. I tried to make that clear.
While China has it’s problems, its portrayal in the western media is grossly distorted and it needs to be corrected. We’ve done that. Our criticisms of the western press are justified because of facts. China’s problems are different and effective solutions are different from proposed ones because they are not based on an accurate picture of reality.
Take the Tibet lobby and the China threat lobby. No basis whatsoever.
We are also correct in pointing out the hypocrisy of the west. So even where the criticisms are somewhat accurate, they are done for ill motives. China has corruption problems but what gives the US, probably the most corrupt country in human history, the right to criticize it when it hardly criticizes itself? What gives the west the right to criticize China for freedom of speech when the west (especially Europe) consistently jails its people for speech “crimes” and the US sometimes even assassinates its own citizens for speech crimes?
What gives the US the right to portray China as a threat to world peace when it is the worst threat in the world to world peace? What gives it the right to criticize China on human rights abuses when it has constantly abused its own citizens (especially the poor and the minorities) and invades other countries killing millions of people when China has not done that in modern times and rarely if ever done so in its history? How does it criticize China for resource depletion and environmental pollution when it has been the world’s biggest polluter by far for 150 years?
The US’s justice system is also broken. The poor and minorities know this all too well. I’ve had dealings with the American court system that shows that the rule of law is not fully functional. Even clear-eyed middle class whites know this. In tort and criminal law, victories are often at best Pyrrhic.
So due to inaccuracy and hypocrisy, we are fully justified to keep the racist, anti-sinitic press under severe scrutiny.
Mister Unknown says
melektaus:
I think few can argue against the seriousness of the side effects of the PRC’s rapid development, be it environmental degradation or corruption. What I oppose is the notion that democracy is a “good in itself”. One could argue that individual liberty is a good that should be balanced with numerous other goods in society, be it material wealth, security, healthcare, the environment, etc. I do not think “liberty” & “democracy” should be equated with one another. Modern day UK is a perfect example of why not. Few can argue that the UK isn’t a democracy (by most mainstream standards), but it is also a country where police can arrest teenagers for immature tweets of menial significance. Had the same occurred in China, that teenager probably would’ve gotten a lot of shit on Weibo, but the police wouldn’t have been involved.
http://espn.go.com/olympics/summer/2012/diving/story/_/id/8217172/2012-london-olympics-uk-teen-arrested-tweets-directed-british-diver-tom-daley
Also, here is another area in which you & I may disagree (although I’m not suggesting that this is your argument in your post). One of my core beliefs is that democracy (in ANY currently existing form) isn’t the solution to China’s problems. While I recognize the need for political reform, including reforms that include traits found in democracies, I would oppose a Chinese transition to a liberal democracy, if that were a possibility. As mentioned in my previous posts (namely, Three Common Myths of Democratic Institutions), individual freedoms did not prevent the abuse of official power for material gain in Russia, elections did not act as a pressure valve to prevent violent insurgencies in India, and decades of openness/transparency isn’t slowing the growing socioeconomic inequality in the US.
As mentioned earlier, the burden of proof does not lie with Beijing to demonstrate that democracy isn’t suitable for Chinese society, the real burden of proof resides with those who advocate democracy as a solution to China’s problems, when it has failed/is failing to solve those same problems in numerous other countries.
Wahaha says
I don’t think the corruption in China is much worse that that in West. It is so bad because “free” media coverage, it is so bad because there thousand times of more reports on the corruptions in China than in West.
#1 and #2 kinds of corruptions happen everywhere, more or less, once caught, it is very hard to make a case for yourself. #3 and #4 kinds are legalized corruptions, WHICH INVOLVE LOT LOT LOT MORE MONEY THAN #1 AND #2. MOST IMPORTANTLY, IN A SOCIETY RULED BY LAW, GOVERNMENT CAN HARDLY DO ANYTHING TO PUNISH THE PEOPLE WHO COMMITTED SUCH CORRUPTIONS, because it is almost impossible to collect enough evidence.
The less developed a country is, the more junior form of corruptions are, because of limited economic size and lack of business opportunities; the more developed a country is, the more senior form of corruptions are, because politicians HAVE BETTER WAY TO GET MONEY FOR THEMSELVES, they don’t have to commit the junior form of corruptions which will put themselves in danger of criminal investigations.
You can see in developing countries, like India, Indonesia, Philippines, and China in 80s and 90s, #1 and #2 corruptions are very common.
Since mid 2000s in China, #3 kind of corruptions have started to spread (no #4 corruption in China because of the system), WHICH “FREE” MEDIA HAS GREAT INTEREST BECAUSE IT HAPPENS IN CHINA, THEREFORE SUCH CORRUPTIONS IN CHINA SERVER THEIR POLITICAL GOALS.
In developed worlds, #3 and #4 are very common, BUT FOR SOME REASONS, “FREE” MEDIA DOESN’T CARE, THEY NEVER SERIOUSLY BRING SUCH CORRUPTIONS TO PUBLIC ATTENTION.
For example (#3 kind of corruption) :
Did anyone hear the recent corruption in Quebec ?
Mister Unknown says
Another quick point, we constantly hear that China’s authoritarian system breeds a culture of dishonesty and corruption from top to bottom, and virtually EVERYTHING – be it cheating by high school students or private companies ignoring product safety standards – are attributed to China’s “bad governance under authoritarianism”. It must also be fair then, to attribute every single flaw of American society to its dysfunctional democratic system of governance. Let’s start with this one:
Cheating scandal: Feds say teachers hired stand-in to take their certification tests
http://usnews.nbcnews.com/_news/2012/11/25/15430647-cheating-scandal-feds-say-teachers-hired-stand-in-to-take-their-certification-tests?lite
My point is, such blind attribution is equally ridiculous in both instances, but only the latter is recognized as such, whereas the former is accepted as unimpeachable truth.
melektaus says
@Wahaha
I never said that China’s corruption is worse than America’s. I made that very clear that it wasn’t.
Guo Du says
Quickly, there’s another factor that gives the very understandable mixed feelings when one moves to China. When viewing the country’s macro development from afar, any fair and analytical person would be disgusted by the gross distortions and self-righteous, biased pontification of the “Free Press”. When living in China, however, one has to live with the everyday issues which maybe insignificant in the “big picture”, but damn irritating.
Let’s say a Chinese scientist who has contributed much to his field may have earned your respect for years. But when you meet him in person, he talks way too loud, and brings up phlegm in his throat noisily, a gross habit from his farming childhood. (My no.1 sage Lao Zi probably stank in real life, with lice all over and a mouthful of fuming black teeth.) These little things are intellectually superficial and negligible, in fact irrelevant; but unless we are very conscious, they may disproportionately affect our admiration for this fictitious scientist’s monumental achievements. The opposite can be true of an academic conman who is eloquent and charming, and knows when to open a particular fine bottle of French wine. This kind of superficiality is what divides Hong Kong from mainlanders.
That said, the Free Press is ironically useful in energising China’s way forward. The gross unfairness also serves to unite the relatively fair minded. Without them, I for one would probably be directing all my critical energy at China, which has plenty of room for improvement. All countries always do. But now I won’t, because so many are already overdoing it all the time.
Yes, thanks Wahaha for your excellent summary of the nature of “corruption”. I would refer some friends to read this but I hope you won’t mine me quoting it to others. (By the way, being a computer idiot, can anyone tell me how to use the “quote” button on these comments?)
melektaus says
@Mister Unknown
Beijing doesn’t want to prove that democracy isn’t suitable for China. Have you ever even read anything by the Chinese government on democracy? The Chinese government is explicitly pro democracy. Of course, their idea of democracy isn’t a liberal one but don’t confuse Liberalism with democracy.
The burden is actually on you if you want to prove that democracy, in any form, isn’t right for China because the Chinese are committed to democratic reforms. Already, the Chinese government is a mixture of democratic and authoritarian government. So if you think they are wrong it is on your shoulders to prove otherwise.
I already talked about China’s conception of democracy in the post “Rethinking democracy”.
Wahaha says
@melektaus
I didn’t accuse you. I simply don’t think the corruption in China is more serious than in West.
The differences are that
(1) So many large scale projects which historically are warm bed for corruption.
(2) Same issues would be covered hundred times more than in West.
(3) West is society of law, corruptions are not classified as corruption if government can’t prove they are corruptions.
(4) #3 and #4 kinds are legalized corruptions, WHICH INVOLVE LOT LOT LOT MORE MONEY THAN #1 AND #2. The reason I believe the corruption in West is more serious than in China.
Mister Unknown says
It sounds like what you’re arguing is that the current government in Beijing publicly espouses democratic values, & if they’re ostensibly ‘pro-democracy’, then its up to me to prove that democracy ‘in any form’ isn’t right for China.
So casting aside the possibility that Beijing may simply be paying lip service to a popular idea (in the same way that they still call themselves ‘communist’), that is a rather irrationally high standard for anyone, as there could be infinite forms/definitions of “democracy”, including those not yet invented. What I have pointed out is that existing forms of democracy have not solved the problems (primarily abuse of official power, violent rebellion, & wealth gap) that advocates claim they can solve, and this is evident in a wide range of social circumstances (be it an underdeveloped country such as India, a middle-income transitioning country such as Russia, or a mature & wealthy country such as the US). So yes, I stand by my position that those who advocate democracy as an answer to China’s problems must prove it against historical outcomes to the contrary. On the other hand, I do not have the burden to prove that some non-existent, futuristic, & imaginary political system that can be labeled as a “democracy” would not work.
If people in Beijing come up with some political arrangement that they want to label as ‘democracy’, I have no problems with that. All I’m saying is the benefits of currently existing forms of the concept are vastly overstated.
YinYang says
Last year, I recall it was Wang Qishan or Dai Bingguo who stated that the Chinese leadership has concluded China will remain a one-party rule system. If you guys have followed Daniel Bell, he observes that China’s plan is democracy at the local level, one-party meritocracy at top, and experiments in the middle. (Whatever in the middle means.)
Another parallel is ‘human rights.’ Chinese leaders always publicly say they welcome U.S. and other countries consultation on how to improve real human rights as long as there is sincerity and respect.
Looking at the U.S. State Department annual report on human rights, it is clear that the U.S. government have ZERO sincerity.
Looking at the Western media’s bigotry when it comes to ‘human rights,’ it is clear they have ZERO sincerity.
So, whether ‘democracy’ or ‘human rights,’ China rightly can tell them to shove it. But then, today’s China is enlightened and pragmatic enough to have an open-arm to Westerners and others when they are sincere.
I am kind of with Mr. Unknown’s last paragraph in seeing this issue:
When China reforms, I think it’s immaterial whether those ideas are conjured. Those terms could be in the shit pile and wouldn’t make one iota of a difference. Chinese society need not be confined in how framing their reform in those terms.
Alright, I do want to cheer Melektaus up. Check out this reform back in 2008 and then 2011:
https://hiddenharmonies.org/2011/08/chinas-supreme-peoples-court-clarifies-trial-procedures-in-citizens-suing-local-governments-over-information-disclosure/
melektaus says
@Mister Unknown
They don’t just “espouse” democratic values, they openly “experiment” with democracy and has been doing so since 1979.
http://en.wikipedia.org/wiki/Elections_in_the_People's_Republic_of_China
They have also implemented other democratic institutions at multiple levels including decision by consensus and public deliberation (again, see my Rethinking democracy post).
So, again, the onus is on you to prove that the direction the PRC has been going for the last 30+ years and which the leaders say will continue is wrong. It’s not “any” definition of democracy that is the issue, or “liberal” democracy that is the issue (that’s a red herring). It’s the the definition of democracy that the PRC is committed to that counts which is actually a more robust an idea of democracy than liberal or many other conceptions of democracy.
http://en.wikipedia.org/wiki/Consensus_democracy
http://en.wikipedia.org/wiki/Deliberative_democracy
melektaus says
@YinYang
Daniel Bell is making a false dichotomy when he pits meritocracy with democracy when he says that the PRC is a meritocracy at the highest level while suggesting it’s not democratic there. It’s actually somewhat democratic at the highest level too. Granted it could be more so if it were more transparent and included more voices from below but that that only shows ways on improving its democratic procedures, not making it so.
Also, I’m a big fan of the central gov. There’s nothing that has been said by local Chinese or any other group that gives credible evidence that they are corrupt, insincere, or incompetent. Everything I have seen by them suggest they are doing mostly good to great work but I do have minor details of disagreement such as that they should increase transparency and better enforce the rule of law.
melektaus says
@YinYang
The US is one of the worst human rights abusers in the world. That doesn’t mean that human rights isn’t worthy, it just shows that they are not to be trusted as a promoter of such values.
YinYang says
@melektaus
Btw, do check out that link I provided. I think there is a positive direction that both you and I like. Even CGC having successfully sued a Beijing rail company was a precedent that received wide CCTV coverage a number of years ago. Those are all good.
In regards to Daniel Bell’s meritocracy vs democracy, I can understand how everyone think it a false dichotomy. To me though, as I read it, it’s more a mindset. China is just does not have a heightened sense of democracy while they do with meritocracy.
It’s like if you and I are NFL players. You are into gaining yard through rush while I am through passing. But if you want to make your strategy the only religion in town, then I can tell you to shove it, because I have a different religion. But then I really meant I am just not so crazy about your religion. (Okay, I was up late last night and sleepy now so not sure if I make sense.)
N.M.Cheung says
Recent news out of China shows the spirit of democracy and transparency by internet and microblogs and the intent of the new leadership.
1. The woman who was arrested for blocking the traffic in Yunan when she and others kneel in front of motorcade of premier Wen’s inspection tour after Wen left ( actually for embarrassing the local officials) were released next day when it was publicized by the press.
2.Party secreatary of a suburb of Chunking (probably spell wrong) in Sichuan were dismissed and investigation started when whistle blower published his indecent pictures in microblog and sexual bribery by contractors currying favors.
3. The case of 5 runaway boys asphyxiated by carbon monoxide when they were found in a trash barrel trying to keep warm by charcoal fire. The whistle blower were detained for a few days for embarrassing the town but released under barrage of news reports. 2 school principals and 3 other officials were suspended pending investigation.
I think internet/microblogs and a freer press are the ingredients for fighting corruption and better transparency.
Mister Unknown says
I agree with you that western liberal democracy is different from the other forms of democracy that China has experimented with, and I must qualify my statements when speaking about the incompatibility of democracy. On the other hand, if that were the case, would it not further demonstrate that whatever democratic experiments they have come up with so far have not developed a scalable solution to reduce abuse of power and the wealth gap? I mean, those are really the two core grievances that the Chinese people have with their authoritarian government, as well as the key reasons many of them point to some form of liberal democracy as the ostensible solution.
melektaus says
@Mister Unknown
Your assumption here seems to be a false dichotomy, i.e., that a state is either democratic or it’s not. That’s false. Again, see my “Rethinking Democracy” post.
The complaints are not directed at the democratic institutions within the PRC but the non democratic ones. The problems arrise from factors that have nothing to do with the democratic institutions mentioned above. They arrise from other factors within society and trheir solution may be to further develop those democratic institutions (along with other things such as the rule of law and education).
Likewise in the USA, a self-proclaimed liberal democratic state, many institutions within it are not very democratic (such as the relience on campaign contributions from large corporations for political campaigns as just one example). Some of the serious problems within society stems from these non democratic institutions, not from the democratic ones.
YinYang says
@melektaus
The other thought I’d expressed in the past is that if the ‘democracy’ label reeks so bad even though the original thought had merits, then let the merits manifest themselves under new labels. “Chinese characteristics” if you will. Would that work for you? 🙂
Anyways, regardless of how rigid a political system may be in terms of process/organization, at the end of the day, societal norms is probably the biggest component. I was reading this article just now:
http://www.globaltimes.cn/content/747667.shtml
67% admits running red light. To change those habits take effort and time. Much of China’s problems, at least in my view, are of this kind where one man one vote may have zippo impact.
Mulberry Leaf says
Yes, rule of law is desirable, but that term is almost as broad as “democracy” itself, and just as subject to dispute. I’ll articulate what I don’t want to see in China, and say that everything else is compatible with your views.
Generally, the current system seems to be that the Communist party develops policies in accordance with local conditions and practice, and then these practices are enshrined into law. What I guess you want is to create laws first (by racuous democratic debate?) and then have policy follow. These laws would not be subject to capricious change, and would probably be based on lofty ideals, such as “freedom of religion”.
Now in Xinjiang in the 1980s, much as in the rest of China, the religious policies were liberal, and many mosques and imams sprouted up, preaching a kind of hate-China hate-Han ideology. This exploded in the 1990 Baren Township riots, in which armed extremists took over some territory and declared an Islamic government (seriously, look it up). In response, China implemented many restrictions on the influence of imams, and violence has successfully declined in the ’00s, relative to the ’90s.
What I don’t want to see in China is the kind of social activism in the US, where groups of activist lawyers like Chen Guangcheng try to force a change in the policy based on some arcane clause of Chinese law. For example, US activists legalized abortion against the majority will of the people, by exploiting judges’ interpretation of laws that were never intended for that purpose. Similarly, a “rule of law” could lead to legal activism that could cause catastrophe for the Chinese people; perhaps a Chinese version of “Citizens United”, or that could create Tibet or Xinjiang independence.
It’s hard to defend the system at present, because really, the Communist party is not an open system, and some of their policies (such as their extremely liberal minority policy) are both unpopular and lead to social instability and suffering. Rather than a binary debate whether “the rule of law” is good or bad, Chinese people should consider, what values should be held above the rule of law, as a basic part of a new Chinese constitution? The territorial integrity of China would be a start.
melektaus says
@Mulberry Leaf
I fail to see what any of that has to do with the rule of law and specifically, what I said about the rule of law. You seem to have in mind something else.
melektaus says
@YinYang
There may be some practical significance to changing the title but my view is “A rose by any other name…” It seems disingenuous to label something as something else when it’s the same.
Also, “one man, one vote” is not the essence of democracy. The US comes closer to that than ancient Athens (where only 10-12% of the population could vote) but arguably Athens was far more democratic. It’s just an empty slogan.
A better slogan that captures the essence of democracy is “By the people, for the people”.
perspectivehere says
The discussion of “rule of law” in China needs to consider several angles and perspectives, and recognize certain impracticalities.
First, “rule of law” means that government and people will follow the law in all respects, rather than governing or acting in arbitrary fashion.
But you face several issues with “rule of law”. First, a law may not exist for the situation – what do you do? Second, the law that exists may not have caught up with technological, economic or societal change – what do you do? Third, the law that does exist may not cover the situation at hand, but may cover an analogous situation – what do you do? Fourth, the law that does exist may be overlapping or contradictory with another law – what do you do? Fifth, when you do have a law, application of the law may lead to an unjust result – what do you do? Sixth, a law may exist for exactly the situation being discussed, but the relevant government authority does not put a priority on enforcing the law (which may be due to “corruption” but also just as likely due to lack of resources, will, attention, data, expertise, experience etc. or the enforcement itself could create new and bigger problems).
The above does not exhaust all the potential “wrongs” that one runs into. In a big country like China, with a lot of people, a lot of different administrative jurisdictions will have lots of rules (too many rules, in fact) and problems like the above are frequently encountered in everyday and business life. What should people and government employees do? Whether one is a business person thinking of starting business, a customer of such a business or a government employee in charge of regulation over an industry or geographic area, they run into these kinds of conflicts all the time. Chinese society would grind to a halt if everyone complied precisely with the law.
A well-known example in Western society is the “work-to-rule” strike or “rulebook slowdown”. This is an ingenious form of labor action. During a “work-to-rule” strike or “rulebook slowdown”, workers follow the letter of the rules:
From Wikipedia: “Work-to-rule is an industrial action in which employees do no more than the minimum required by the rules of their contract, and follow safety or other regulations precisely in order to cause a slowdown, rather than to serve their purposes. Such an action is considered less disruptive than a strike or lockout; and just obeying the rules is less susceptible to disciplinary action…Sometimes the term “rule-book slowdown” is used in a slightly different sense than “work-to-rule”: the former involves applying to the letter rules that are normally set aside or interpreted less literally to increase efficiency; the latter, refraining from activities which are customary but not required by rule or job description but the terms may be used synonymously.”
If everyone in China, including government employees, followed “rule-book slowdown”, China could not function. In fact, I think the opposite is true: China functions in a way to preserve flexibility and finding the right solution to the situation – this is a cultural and civilizational trait which is maddeningly inscrutable to the foreigner. To those raised within the Chinese system, they learn how to get things done, by communicating and negotiating with the right parties (relevant jurisdictions).
Given Chinese people’s experience over several thousand years with the problems of big governmental law administration, Chinese people culturally have developed a very keen sense of figuring out how to operate within moral and ethical bounds (usually Confucian / Buddhist / Taoist / Christian) while taking advantage of grey areas in the rules to get on with their lives.
I think when western observers say that China needs “rule of law”, it often arises from either deliberate or inadvertent ignorance and misunderstanding of what the actual law in China is, especially where the law in China reflects different priorities and customs to what westerners are used to. For example, this article brings up differences in the way privacy and information barriers are dealt with in China, in quite a fair way:
Traps For The Unwary In Disputes Involving China
QUOTE
Law360, New York (June 27, 2012, 1:11 PM ET) — “Primum non nocere” or “first, do no harm” is a fundamental precept of the medical profession. Though not often cited by lawyers, this principle should also guide us when we assist clients in legal disputes and internal investigations involving companies doing business in the People’s Republic of China.
Western lawyers new to handling matters involving China soon learn that the legal instincts developed in their home countries cannot always be relied upon when handling the sensitive and contentious matters encountered in China. In fact, those very instincts, if not tempered with caution and diligence, can quickly run afoul of Chinese law. This risk arises whether we represent a Chinese company in U.S. litigation, a Western company in an internal investigation of its Chinese operations, or a multinational company involved in domestic or cross-border litigation coordinated with Chinese litigation counsel. In each of these circumstances, we cannot be too careful.
This article highlights some of the obstacles encountered and lessons we have learned while representing U.S. and Chinese companies in internal investigations and litigation matters involving China.
Managing Uncertainty
China has no shortage of laws. Over the last two decades, China has enacted laws and regulations reaching every subject one would expect in a modern economy. Some of these laws touch directly on the activities undertaken by companies and their lawyers when conducting internal investigations or collecting evidence for a local litigation or the U.S. discovery process. These laws range from familiar subjects such as privacy law to more sensitive and arcane subjects such as the Chinese state secrets law.
However, all these laws share a common trait. Generally speaking, the laws of the PRC suffer from an overwhelming lack of clarity. Whether stating broad principles of protection or proscribing specific conduct, the PRC laws and regulations inevitably leave open large areas of ambiguity and uncertainty.
This common theme of ambiguity and uncertainty in Chinese law may be no accident. Viewed in a positive light, it allows for flexibility and the exercise of administrative discretion by decision makers in China. More cynically, it also allows the government to charge any company with some violation of the Chinese law should the company ever fall out of favor with the local authorities.
How are lawyers to advise their clients in such an uncertain and ambiguous legal environment? While the specific advice depends on the facts of the individual case and the specific law in question, the general approach is the same in most circumstances — recognizing there will always be a residual risk under the laws of the PRC, lawyers and their clients must gather evidence with caution and diligence in order to be ready to demonstrate, in the event of a future legal challenge, that the company acted in a good faith effort to comply with the requirements of the specific PRC law. Below we discuss how this approach may be implemented in the specific context of data privacy law, state secrets law, accounting archives law and the law regarding private investigation….”
END QUOTE
An interesting “conflict of laws” issue has now arisen. The US SEC is suing the China affiliates of big international accounting firms because they refuse to give Chinese documents to the SEC for an investigation, on the basis that doing so would be a violation of Chinese law. What should these accountants do – give up the documents to the US SEC and risk going to jail in China? Or obey Chinese law but then risk fines or sanctions from the SEC (and loss of their profession in giving audits of companies planning to list in the US securities markets?).
Frankly I’m surprised the SEC is taking this route. Traditionally, the SEC and the China regulators have bilateral cooperation arrangements or memoranda of understanding to govern cross-country investigations so as to avoid these kinds of situations.
Here you have two governmental bodies, they are following the “rule of law”, but the citizen is at their mercy. Being caught between two governmental authorities asserting their turf happens all the time within China.
I think in ordinary life, people who are caught in this situation use common sense and do the “least bad” course. In the accounting firms’ case, the US SEC is far away, while the China regulator is much closer. Any way you slice it, the accounting firms are violating some law somewhere.
This is a problem with coordination, not “rule of law”. Two different governmental bodies, each pursuing the aim of market integrity, yet coming into conflict, causing frustration for an innocent business (accounting firms). The governmental bodies should coordinate better, but there is no overarching body to force the two to coordinate, so each one pursues its own agenda.
****************************
A different issue is presented by lack of sufficient legally-trained personnel to handle all the work that may require legal expertise. China has 1 lawyer per 8,040 population according to this Harvard Law School 2011 study on legal profession in China. In the US, it is 1 lawyer per 265 population. Put another way, for every 10,000 people, there are 1.2 lawyers serving them in China, while in the US, it is 37 lawyers. Granted, the number of lawyers per capita will be far higher in the major cities, so these stats may be misleading comparisons, but in general considering there were very few lawyers per capita in China, this is a growth area that will take time to reach a sufficient supply to meet the demand for legal services.
I think what you are reflecting on is not lack of “rule of law”, but the lack of sufficient legal experts to assist people with navigating the complexities of modern society. This will take time for enough lawyers to be trained and get experience. The article I cited above on legal profession in China shows the state of this bottleneck as of 2011. It’s actually a pretty positive picture of the efforts in place already. Should China build more law schools?
According to the Harvard study, “As of the end of 2009, there were more than 630 law universities, law schools and law academes offering LL.B. courses, among which 333 award Master of Law degrees, 115 award Juris Master degrees, and 35 award Juris Science Doctor degrees.”
By contrast, in the USA, there are only 203 law schools accredited by the ABA.
If you build more law schools, where do you get the trained teachers from? There are not enough qualified teachers already. This is not solvable quickly, but it should get incrementally better every year. It will take decades for the number of lawyers in China to meet demand. This also means that becoming a lawyer is probably a smart move for a young person starting out, as there should be plenty of jobs for their entire career. In the meantime, people need to face the facts and not put the blame at the governments’ feet, since it misses the point.
Given there is a severe “lawyer glut” in the US, with law schools turning out more graduates than the job market can support, perhaps some of the US law schools could start turning out Chinese lawyers. This would be a win-win for both US and China.
Would that not be visionary? A US law school which opens up a Chinese section, engages qualified Chinese law professors on fellowships, and offers training in Chinese law that is good enough so that the graduates can take the qualifying exams in China. The course would be open to American (and international students) who can handle a Chinese language curriculum. Graduates could get placements in Chinese law firms or foreign law firms in China. Is there any US law school that has the vision to do something like that? Can it be done? If not, why not? Given globalization, online resources, distance learning trends etc. why not?
Wahaha says
I agree with you 100%.
Actually, I believe that human beings are too complicated to be ruled by a book. An US politician will not do anything unless he can find something from law book that tells what to do.
I believe flexibility should be somehow written into law, otherwise such laws will paralyze government. For example, individual right should be respected only to a limited extent, that is, there should be balance between individual right and welfare of society.
melektaus says
Flexibility is already built into law (at least US, European and AFAIK, Islamic law) in not only how the law is applied but how it should change. That’s why law is often called a *living* document. Good law must change with the times to dapt and to remain fair and neutral.
Wahaha says
I don’t think so.
For example, constitution in US is not flexible even it means some idiots burned Koran and put tens of thousands of American soldier’s lives in great danger.
Property law is another example that has caused huge troubles in any countries that need building up infrastructure, in India and in USA.
Guo Du says
I fully agree with you that flexibility must be accommodated in the law book to maintain its original intention and keep it human. Of course when this approach (like anything else in life) is being abused, that flexibility becomes a fantastic source of income for those in charge of execution. That’s life.
The US constitution can be flexibly interpreted or blithely ignored though, when it comes to issuance of fiat money, and declaration of war. Sending drone flights into another country is one example.
The rule of law, like democracy, people power, human rights, sustainable (for how long?) development etc. etc. are great intentions that few would argue against. However, when they got turned into banners, problems start. Once beyond our miniscule memory span, the nobel intentions would be hijacked by banner waving wordsmiths, trailed by millions.
That is the problem with the “Rule of Law” when taken to the extreme (like in many countries now). The original intention of a consistent, universally applied, set of laws to maintain (or maximise) a sense of social fairness has been made subordinate to the letters and technicality, and worse, specious soundbites and MONEY (I personally know innocent individuals who have given up legal battles because they have been bankrupted by the process and emotionally drained; and legal aid is a cynical and ostensible service for the illiterate and penniless). When a community, based on legal technicality, sues a bunch of silver coins in a court of law (http://guo-du.blogspot.hk/2012/10/us-government-sues-bunch-of-coins.html), something ludicrous is being blindly supported by worshippers, in the name of the Law.
The so-called Rule of Law is also culturally biased. Non-Western laws duly promulgated in a culturally disagreeable country would be ignored, ridiculed, even condemned, to the cheering of citizens who are supposedly committed to the Rule of Law. In the end, the same mentality that makes beef eaters deride “superstitious” Indians for not eating cows, and berate “barbaric” Chinese for eating cute little pooches, is also behind the banner of “Rule of Law”.
melektaus says
@Wahaha
SOrry but you are very ignorant of the law and the constitution. The constitution has been changed (amended and reinterpreted) many times. All good constitutions have. Laws are always changing, being amended, and reinterpreted. Granted laws aren’t as malleable as they probably should be to take into account subtle nuances of society to be optimally just but it’s ignorant to say that they aren’t flexible or don’t or can’t change.
http://en.wikipedia.org/wiki/United_States_Constitution
“The Constitution has been amended seventeen additional times (for a total of 27 amendments) and its principles are applied in courts of law by judicial review.
The Constitution guides American law and political culture. Its writers composed the first constitution of its kind incorporating recent developments in constitutional theory with multiple traditions, and their work influenced later writers of national constitutions. It has been amended over time and it is supplemented and interpreted by a large body of United States constitutional law.
”
Also see
http://www.amazon.com/Laws-Empire-Ronald-Dworkin/dp/0674518365
Your example of freedom of speech makes my point actually. The freedom of speech has been reinterpreted many times by the supreme court to take into account society’s changes (like all of the constitution). Another example is the second amendment. The constitution gaurantees right to gun ownership but no state allows owning things like anti-aircraft guns.
perspectivehere says
In the Open Forum 2 – comment #134 i mentioned an insightful recent law journal article by Jennifer Wells:
Clashing Kingdoms, Hidden Agendas:
The Battle to Extradite Kwok-A-Sing and
British Legal Imperialism in Nineteenth-Century China
Clashing Kingdoms is a bold article that challenges conventional wisdom about the relationship between the Western “rule of law” and China’s supposed lack of law. It focuses on legal cases involving the attempt by China to extradite an accused murderer, Kwok-a-Sing, from Hong Kong to China to face a Chinese court.
Kwok-a-Sing was accused of leading a mutiny on a French coolie ship in 1870, which caused the deaths of several of its crew. Kwok-a-Sing escaped to Hong Kong. The Chinese Government sought to extradite Kwok-a-Sing pursuant to various treaties and laws in effect between China and Britain. The HK and British government refused to extradite Kwok-a-Sing. The reasons and language employed by jurists of the time give a clear picture of how Britain justified its own laws and system over China’s, often times in ways which defy justice and fairness, and humiliate China by forcing it into a subordinate a powerless state, unable to enforce its own laws due to British interference.
Reading the language of the cases today, it seems to us, as it must have seemed to Chinese then, that British law was no more than manipulation of words – “legal chicanery” – to reach the results the British wanted, which was to de-legitimate and subordinate China’s government. The actions taken by the British and HK courts in the 1870’s illustrate what must have seemed to the Chinese as the hollowness of British “rule of law”. China learned through these interactions that British “rule of law” is really only rule of the powerful under the guise of “law”.
Some choice passages in this remarkable article:
“An analysis of the relevant treaties, acts, and ordinances by the British imperial courts in the Kwok-a-Sing cases served three important functions. Foremost, it illustrated how, by skillful legal chicanery, Britain legitimized its colonization of Hong Kong and domination of the Chinese. By manipulating the application of the law and relying upon Western legal and cultural mores in the Kwok-a-Sing decisions, Britain solidified its political power in the region to the detriment of China.
Secondly, the alternately patronizing and jingoistic language of the various Kwok-a-Sing decisions, as well as contemporary government correspondence and news accounts of the cases, further augmented British power in the region by constructing the Chinese government, laws, and culture as inferior. By casting the Chinese as gross, bestial savages at empire’s peripheries, the British justified the implementation of Western law and legal concepts as a means of bringing order and civility to China.
The imposition of English laws and an English political order in turn fueled China’s “century of humiliation,” that period of Chinese history that began with China’s crushing diplomatic defeat following the First Opium War in 1842 and only ended after the expulsion of foreign powers from mainland China in 1949. As Cohen has aptly demonstrated, this third and most long-lasting consequence stigmatized the Chinese government and people. Indeed, China’s current reticence to engage fully with the international legal order is directly tied to the “imperialist exploitation” suffered by the Chinese at the hands of the West during the nineteenth century. The Kwok-a-Sing decisions accordingly demonstrate how Britain utilized English law and legal decisions in order to consolidate its own power by rendering China politically, legally, and culturally inferior. This in turn provoked a lasting legacy of bitterness and a deep skepticism towards the Western international legal order that continues to define China’s relationship with the West.”
>>>>>
On Legal Imperialism generally:
“Britain’s role in shaping and molding the Treaty of Nanking as well as future unequal treaties that ultimately affected the Kwok-a-Sing cases highlights the role of legal imperialism in Anglo intervention in nineteenth-century China. The articulation of legal imperialism first resulted in jurisprudential and political science debates of the mid-to-late twentieth century, an era that saw the final collapse of the European imperial order as numerous African, Asian, and Middle Eastern nations declared their independence. … one of the most fluid, clear discussions of legal imperialism is John Schmidhauser’s “Legal imperialism: Its Enduring Impact on Colonial and Post-Colonial Judicial Systems.”
Schmidhauser defines the basic theory of legal imperialism as one where conquering powers universally imposed law upon the indigenous population in an effort to maintain civil stability and order, consolidate economic penetration, and ensure that the invocation of indigenous law by the native population did not threaten the authority and power of the conqueror. Unsurprisingly, legal imperialism is frequently connoted with European law, whether civil or common, as imbued upon colonial societies of “the Other.”
Despite the relatively recent exploration of the theory, case studies have demonstrated the longevity of its actual practice. In regards to Britain, its incursions into Ireland during the mid-sixteenth century laid the foundations for all future legal imperialist endeavors employed throughout its empire between the seventeenth and nineteenth centuries. In Ireland, Britain legitimized its colonization by harkening both to England’s common law tradition and the canon law of conquest and warfare as developed by Continental powers and applied to non-Europeans between the thirteenth and sixteenth centuries. Thus, the frequent assertion that Ireland was Britain’s “laboratory for empire” is not without merit.
In a macroscopic sense, Britain’s utilization of other, Western legal traditions, such as Roman law and canon law, to justify imperialism illustrated the widespread tendency of European powers to borrow from various Western legal theories, traditions, and customs when justifying their incursions into non-European, or in the case of Ireland, “uncivilized,” territories. Indeed, the series of unequal treaties that the great European powers, including Britain, France, and Russia, executed with China and Japan in the nineteenth century demonstrates this reliance on a blended, Western European legal tradition imposed on the barbarous “Other.” Britain proved by far the most likely Western nation to unleash its domestic common law on its colonies and “spheres of influence” while simultaneously relying upon Roman law to justify the incursions.”
*******************************
So “Rule of Law” rhetoric is often mixed up with justifications of imperialism against and for the purpose of degrading and delegitimatizing a non-western opponent government or society (although the Irish functioned as the “unruly savages needing rule of law” for 17th century England).
This association of “China needs rule of law rhetoric” with British legal imperialism over the past 150 years taints law and makes it suspect. Nowhere was this felt more strongly than the concept of ‘extraterritoriality’ – that China’s own laws cannot be permitted to govern foreigners and their exclusive spheres of influence within China itself. As <a href="http://legalhistoryblog.blogspot.hk/2012/01/cassel-on-extraterritoriality-and.html" Cassel on Extraterritoriality and Imperial Power in 19th Century China and Japan" notes: “Extraterritoriality provided the springboard for foreign domination and has left Asia with a legacy of suspicion towards international law and organizations. The issue of unequal treaties has had a lasting effect on relations between East Asia and the West.”
perspectivehere says
@melektaus
By coincidence, I was thumbing through a copy of Dworkin’s Law’s Empire just over the weekend. Dworkin idealizes law as the “practice of integrity”. Law makes us be the best we can be, judges decide cases by figuring out the ‘best’ fit that principles have to the facts.
I once heard Dworkin give a talk and found myself disagreeing with much of what he said, as it seems to me he is creating a mythological, idealized picture of how law works.
I’m more inclined to view the law along the lines of Critical Legal Studies (CLS) and Critical Race Theory.
“the law tends to serve the interests of the wealthy and the powerful by protecting them against the demands of the poor and the subaltern (women, ethnic minorities, the working class, indigenous peoples, the disabled, homosexuals, etc.) for greater justice. This claim is often coupled with the legal realist argument that what the law says it does and what it actually tends to do are two different things. Many laws claim to have the aim of protecting the interests of the poor and the subaltern. In reality, they often serve the interests of the power elites. This, however, does not have to be the case, claim the CLS scholars. There is nothing intrinsic to the idea of law that should make it into a vehicle of social injustice. It is just that the scale of the reform that needs to be undertaken to realize this objective is significantly greater than the mainstream legal discourse is ready to acknowledge.”
Moreover, I think Derrick Bell has far more to say that is relevant to China than Ronald Dworkin.
melektaus says
I don’t agree with much of what Dworkin said either but his book is actually a very interesting book on how, why legal institutions change and why they ought to (the issue here is whether it does, not whether Dworkin is ultimately right).
Dworkin gets many things wrong but no legal scholar (unless he’s a complete shyster) thinks that laws are not flexible.
melektaus says
BTW, as for critical legal studies, I’m not an expert (I’ve only read Duncan Kennedy) but from what I have read of it, it seems to be deeply influenced by the pompous and confused (intentionally?) post-modernist elements within academia. It’s very wishy-washy, big on big words and small on content, kind of like critical theory in general.
Wahaha says
melektaus,
I may know little about law, but you completely misunderstood what I meaned by “flexibility”.
Here is an example of flexibility I talked about: 北京男子为救妻私刻公章案宣判：退还全部赃款获缓刑. By law, he would be sent to jail for at least 10 years, because of the circumstance, he was allowed to stay at home. Can you say the justice was not served? it served the justice, but IT DIDN’T SERVE THE BOOK.
The case of burning Koran is another example. By whatever was written on paper, government had no right to stop him to do that. But because it put other people’s lives in danger, government should be allowed to stop him.
So flexibility I talked about is that individual, group of people or GOVERNMENT are exempt from being punished though they did something against what was written on paper.
The reason that such flexibility should be allowed is because that human beings are too complicated to be ruled by a book, not mention dealing with a society of tens, hundreds of millions of people. You can write a book with 1 billion page, there will still be exceptions that can’t be handled by the books.
If you add all those “understandable exceptions” to law, it is impractical, and more, human society is not 0 vs 1, there is NO clear cut about lot of things. For example, how do you set a criteria that government should be allowed to forcefully relocate people or not allowed ?
What Guo Du said reflected lot of what I mean
“when they got turned into banners”, my understanding of that is that law must be strictly followed, word by word, NO EXCEPTION.
I am not a law student, I don’t know how to inject flexibility into law, but I believe that law is not science, it must have human characters.
melektaus says
@Wahaha
Again, your idea of flexibility is not relevant. The issue is what I spoke about in the OP. So I guess you had nothing to say about that then? So are you saying that your idea of “flexibility” (whatever that is) is not even related to any of my points?
As to your example of the Koran burning, it is simply irrelevant. If you knew anything about the law, which you know admit you don’t, you’d know that the issue of free speech is a constant balancing act. The law must always find grounds between freedom of expression and and other considerations. That’s the case in the US as well as China and other countries. That intersection can change with the times as it has e.g. during the Obama administration where it is far more strict. I personally think t is now too strict and many people have been sent to prison or even assassinated by the US government for speech acts.
“So flexibility I talked about is that individual, group of people or GOVERNMENT are exempt from being punished though they did something against what was written on paper.
”
On what “paper”? WTF are you talking about?
Again, this is irrelevant to anything I said. Flexibility is already allowed. Now you are saying that “flexibility” is not really “flexibility” in “your sense”. But you don’t even make clear what you mean by it. From what I read, it seems like what you are saying now about is allowed.
For example, you make the false assumption that law is “0 or 1”. That’s dumb. Take criminal law. Judges must decide what are the circumstances surrounding a case in meting out not only punishment but the crime. The defendant’s history (both criminal and personality), the particular circumstances under the crime, the defendant’s mental state at the time, the society at large, etc etc all come into consideration. So it’s asinine to think of this as 0 or 1. It’s shades of gray and contextual issues come into play all the time. You don’t know any of this?
melektaus says
I’m not sure I understand what you are saying here. When situations like this happen, we must use and apply common sense. We must also try to apply standards and so forth. In other words, we must do what human beings have always done when faced with challenges. Apply reason. But what does this have to do with what I’m saying? Are you suggesting that law must be perfect for every situation and solve all our problems to be feasible? Of course it will not do that. We have common sense (at least some of us) to take care of the gaps.
Like I keep saying, law is not the ultimate answer but do you have an alternative for China in the immediate future? If so please propose it for all of us to hear. Please educate us.
Again, I’m not sure what you are getting at. You reinterpret old laws, apply some common sense and reason, and apply some reasonable established principles so that they are applicable to the new situation? That seems to be common sense. Is this supposed to be a rhetorical question?
Um, you apply common sense? What does all this have to do with anything? AGain, who said law must solve all our problems perfectly without any gaps and ambiguity? Certainly not I.
How will society work without law? If you get rid of legal institutions for China now, what will it look like? Can you please answer that for me?
Again, what does this have to do with the price of tea in China? The answer seems very obvious to me. You try to make them consistent using common sense and reason, which is what human beings do (or supposed to do) when faced with problems.
Um,…you try the right the wrong?
What would you do?
As you yourself stated, the rule of law is that people and authority in society ought to obey the law so that there are no arbitrary decisions. I see nothing that you have said that shows this principle defective. Your points merely show extra legal issues, issues related not to contending the badness of arbitrariness of decisions but to gaps where law has no domain.
A well-known example in Western society is the “work-to-rule” strike or “rulebook slowdown”. This is an ingenious form of labor action. During a “work-to-rule” strike or “rulebook slowdown”, workers follow the letter of the rules:
This only shows that their rules were bad rules in the beginning, not that you ought not have or follow any non arbitrary rules. Rules must allow for flexibility but that doesn’t mean that all rules are bad or ought not to be followed or should be arbitrarily applied (I don’t even know what an arbitrarily applied rule is, it seems like a contradiction in terms).
Would you work in a factory without any rules or very little being followed or with “arbitrary” rules? Isn’t that the million dollar question?
Sorry, but this runs completely against what I have seen and been told by Chinese people. Their views is that the lack of a rule of law makes China FAR LESS efficient. Granted what you have said may have been good for China when society was simpler but with modern society and all the complexities of it, you’d have chaos (which is actually far closer to the truth of China today, look at the traffic) than order and efficiency.
You also seem to assume (wrongly) that things like mediation, negotiation, runs contrary to the rule of law. But I see no reason that they might not play rules in society together. They might play complimentary roles. Eventually, I hope that China would rely far more on the former and other institutions and practices but that will take a long time for the population to build the necessary intellectual, social, and personal resources for it to be able to do that.
Are you saying that 1.3 billion Chinese with an average education far below that of the average American will be as virtuous and reasonable to live like that relying on mediation and negotiation? Do you know how much injustice and corruption that goes on in China? Do you seriously think that all that injustice will right itself because the unjust will see the wrongness of their ways without impartial laws being enforced?
Wahaha says
Hi, melektaus,
I read your posts and I know that there were amendments to the consititution, and I simply disagree your understanding of flexibility.
I don’t understand how you can claim that US constitution is flexible when it forbids government stopping someone putting other people’s lives in danger. You basically say that “look, they made some corrections, hence flexible.” That is not flexibility, that is correcting the mistakes that were not anticipated.
Flexibility of law, in my opinion, is that it allows individual, groups and government crossing the line set by the law if it deems necessary in the given situations. Here “deems necessary” means that (possible) outcome if not crossing the line is unacceptable.
My point is that as human beings are too complicated, there will always “unanticipated” out there that are not covered by the law. Furthermore, lot of things in human society can’t be judged by a rule, because very often, right or wrong in human society depends on the situation, not by what is written on papers.
One big reason that human society is different from science is that right processes don’t necessarily lead to desired results, but a huge part of law is about what can be done and cannot be done in the processes of human society. That is why I believe flexibility of law is necessary, especially when individuals or government need to do what has to be done.
If you don’t like my understanding, that is fine with me.
BTW, lack of law in Chinese society doesn’t mean that “Slaves of law” in west is good. I am not overwhelmed by the concept “society of law” because it severely limits government’s power over white-collar crimes, gangsters and mafia, greedy bastards, parasites and irresponsible., unless the flexibility I mentioned above can be part of the law.
melektaus says
@Wahaha
Oey Vey… The US government has always been flexible in this regard. You don’t know anything about the constitution or US history. The last 10 years should have taught you that the US has made considerable changes to its interpretation of free speech and other things (such as torture). Now granted I think all that has gone too far but the constitution of the US DOES makes for flexible provisions during times of war or severe civil unrest. Please take a course on it. You can now forbid people from criticizing the government (indeed, you can jail them and even assassinate them) due to security concerns. So there is flexibility. Granted I think that flexibility has gone further than the dangers warranted but it’s terribly stupid to say that the constitution isn’t flexible in regards to making room for security concerns and whatnot. It’s ignorant.
The question isn’ty if human beings are complicated. The question is whether modern society is.
Please provide evidence that the US constitution doesn’t have provisions for “flexibility.” I’ve shown how the US constitution has changed and been reinterpreted to fit the times over its lifetime. Laws change all the time. You have not shown anything contrary then to assert patently obdurate, ignorant denials.
No body is denying that laws should be flexible. Where did I say that they ought not be? What does this have to do with anything I or anyone else said? Why are you wasting time and bandwith with this drivel? Your idea of flexility in law is built in to the constitution of the US from the very beginning. Do you know anything about US constitution and US? Please, you have no fuckin clue. You’re not even remotely close. I’m getting sick of your attempts to BS me. You are not smart enough nor educated enough to bullshit anyone.
The US constitution is a living dynamic document and has been so intended since the beginning. Educate yourself.
http://en.wikipedia.org/wiki/Living_Constitution
The question isn’t whether the constitution or laws in general are flexible (obviously they are in almost all societies). The question is how flexible should they be and in what way they ought to be flexible.
Wahaha says
You call it “flexibility”?
Ok, let us focus “flexibility” on civil issues.
I already gave you. Again if you don’t consider it as a result of lack of flexibility, then we have to agree to disagree.
Law that paralyze the government (google “too much law suffocating America”), here is one :
http://www.cnn.com/2010/OPINION/02/22/howard.too.much.law/index.html
Google vetocracy, Francis Fukuyama.
Oh for a democratic dictatorship and not a vetocracy
On law of property, the Fourth and Fifth Amendments of the United States Constitution protect us against illegal search and seizure and against the taking of private property. The result is serious delay of building Barclay Center in New York, and failure to build interstate 710. Such delay is unacceptable in developing countries.
Let us talk about cases in real world :
How would you design the law of property in China ? The key reasons for the success of building infrastructure in China is that government could push people aside, whether they like the compensation or not. How would you set a criteria in a book that tells government officer “OK, you can use force” or “No, you can’t use force”?
How would you legalize one-child policy while respecting individual rights? How would you legalize TWO-child policy while respecting individual rights?
Let us make it simple :
Now you are a law maker, can you write a law about this issue, a law that will allow New Yorkers feel safe going to central park in the middle of night?
melektaus says
@Wahaha
You call that a lack of flexibility? Do you even know what flexibility means? Look it up in the dictionary. Like I have been saying but you are too dense to understand the issue isn’t whether it’s flexible but how flexible it is or ought to be. You made a mistake of saying that US laws aren’t flexible but that is false. Outright false. It shows a profound ignorance of the law and US history.
Now you have confused too much law with flexibility in law. These are clearly different issues. You don’t even know what this issue is about do you? So let’s just be honest here. You have no idea. You just feel something vague in your mind (let’s say, “law yuck!”) and you have no clue how to defend that feeling other than by making any ignorant statement that come to the top of you mind against it but you haven’t read up on anything nor even what this thread is about. You are also confusing the topic of democracy with that of the law. So you are so deeply confused you are not even being coherent.
Get this through your thick skull, the constitution in the US or most constitutions in the world are not perfect but only an ignorant fool would say that the US constitution isn’t flexible.
melektaus says
Basic history of law and constitution lesson for “wahaha”
http://en.wikipedia.org/wiki/Living_Constitution
http://en.wikipedia.org/wiki/United_States_Constitution
http://plato.stanford.edu/entries/constitutionalism/
http://en.wikipedia.org/wiki/Rule_of_law
To say that laws and the US constitution are not flexible is to expose oneself as a buffoon. Educate yourself.
melektaus says
Now this cretinous troll “whahaha” is confusing US legal institutions with US democratic institutions.
What a deeply confused troll.
http://en.wikipedia.org/wiki/Vetocracy
melektaus says
I just deleted another wahaha’s ignorant post for persistent trolling.