Where does China’s political future lie? Do economic modernization, greater personal autonomy and global integration promise to uproot the centuries-old authoritarian political order and replace it with some form of liberal democracy? Or will China depart from predicted paths of political development and, perhaps, serve as a model of its own?
Two decades ago, a chain of events made it seem as if the world was on the cusp of a post-ideological – even post-historical – transformation. The abandonment of socialism by the once-formidable Soviet Union and its Eastern European acolytes suggested a path toward a new world order based on global capitalism and democracy. Now, twenty years later, many are still trying to understand why China never joined the party, while others wonder why the celebrated new world order never turned out as promised.
Indeed, few ideas are as persistent in China scholarship as the notion of ‘Chinese exceptionalism’. Inquiries into China’s failure (or at least delay) in meeting benchmarks of historical progress such as ‘science’ or ‘capitalism’ are two examples; debate over whether Chinese political or philosophical traditions are compatible with democracy, rule of law or human rights is another. The traction of tradition makes it appear to some that China’s political future may be inevitably authoritarian, and that the country will always be governed by paternalist leaders whose legitimacy is premised on the idea of the state as an intrinsically moral institution. Indeed, the idea of a strong one-party state as ensuring prosperity and stability and as capable of delivering justice in perfect harmony with more-or-less homogeneous collective interests is an integral part of the ‘Chinese exceptionalism’ argument.
But, as compelling as that ideal vision of the Chinese state might be, its inevitability is daily being cast into doubt by the realities of contemporary Chinese society. Rapid economic development has led to significant socioeconomic polarization and fragmentation, and China’s political and legal institutions are straining to manage the diversity of values and interests that has developed as a result. The re-emergence of an authentic public opinion in China, founded on an increasingly commercialized press, a growing journalistic professionalism and a vibrant Internet, has begun to loosen the Communist Party’s monopoly over the public agenda and opened up space for these diverse and often contentious views to be voiced. Since the 1980s, China’s leaders have put increasing stock in development and reform of the nation’s legal system to regulate the process of modernization, improve the state’s capacity for managing conflicts in a more complex society and ensure social harmony and political stability. One might even say that, in the absence of any other compelling unifying ethos, China’s leaders have resorted to making law the new moral centre of contemporary Chinese society, one to which all other values and interests must ultimately reconcile.
The success of this effort, however, has been limited so far. China’s legal system has undergone considerable transformation in the post-Mao era but the public legitimacy of China’s legal institutions is undermined by both the undemocratic way in which legislation is enacted and perceptions of inconsistency and inequality in the way that law is enforced. The goal of legal reform, as commentators have noted, appears to be less about adjudicating over rights or deciding conflicts between social and individual interests and more about the proliferation and refinement of norms and, occasionally, institutions. [1] The state’s central goal is to build a more efficient, rational legal system: one that can reduce the burden on China’s overtaxed judicial institutions and minimize gross miscarriages of justice. To date, there have been only minimal commitments to developing the rule of law.
An emerging ‘rights-centred’ discourse of justice is poised to challenge this conception of the legal system as an instrument of preserving the sociopolitical order. The arguments produced out of this discourse have potentially far-reaching implications for the constitutional arrangement between the state and its institutions on the one hand and society and individuals on the other. Energized by the compelling but deeply contested ideals of ‘human rights’ and ‘rule of law,’ this discursive challenge has gained momentum because of the Chinese public’s exposure to the darker side of law enforcement practices and awareness of victims of excessive police power and China’s imperfect judicial system. When cases involving such issues as rights of free expression, secret arrest, arbitrary use of prolonged administrative detention, and even capital punishment have entered the spotlight and become matters of public controversy and debate, they tend to inspire overwhelming public sympathy and outrage. Ordinary citizens are anxious about how their lives would be affected by the state’s pursuit of ‘stability above all else’.” They worry about their own vulnerability before the law and are increasingly desirous of placing limits on the exercise of state power in order to protect their individual rights. [2]
Tang Hui
Consider the way that widespread public concern in 2012 over the detention of sympathetic ‘petitioning mother’ Tang Hui 唐慧 and others sent to ‘re-education through labour’ (or laojiao 劳教) helped catalyse consensus about the need to undertake reform of that long-criticised system of administrative punishment. It would be hard to imagine a case more likely to inspire public sympathy. Driven by a mother’s insistence on seeing justice done to those responsible for the rape and forced prostitution of her eleven-year-old daughter, Tang Hui responded to the indifference of local law enforcement agents by petitioning for the intervention of provincial and central officials. After a protracted trial process in which two defendants were eventually sentenced to death, police responded to Tang’s continued efforts to hold individual officers accountable for alleged acts of dereliction or malfeasance by sending her to laojiao for eighteen months. When news of Tang’s detention became public, a surge of nearly unanimous public opinion put pressure on provincial authorities to announce a thorough investigation and to quickly release her on grounds of ‘humanitarian concern’. Following near-simultaneous exposures of other victims of laojiao in Chongqing under the recently deposed duo of party secretary Bo Xilai 薄熙来 and police chief Wang Lijun 王立军, Chinese citizens came to see laojiao as an instrument of arbitrary and abusive official power and themselves as its potential targets. [3] This strong sense of laojiao’s public illegitimacy led the authorities to act swiftly, having now shut it down even before reaching a consensus about what sort of institution might succeed it.
Xia Junfeng
The public sense of compassion for Tang Hui’s plight was heightened by an image of her as a member of the weak or disadvantaged segment of society. Similarly, it was widespread sympathy that rallied public opposition to the execution of Xia Junfeng 夏俊峰, a street vendor who, in what he claimed to be self-defence, fatally stabbed two urban management officers (or chengguan 城管) who allegedly beat him after seizing the gas canister with which he earned his meagre livelihood. Just as Tang Hui became a symbol of opposition to the seemingly arbitrary and vindictive ways that local officials used laojiao, so did Xia Junfeng symbolize public unease with how unrestrained enforcement of anti-vendor regulations by chengguan offended a sense of social justice. [4] This growing public empathy for the victims of abusive officials is a fundamental part of the discursive shift in China surrounding issues of rights, rule of law and the limits of state power. Though these public demands for stronger checks on state power are not intrinsically antagonistic to one-party rule, it is not unreasonable to see them as a form of ‘proto-liberal’ popular sentiment.
These expressions of incipient liberalism have not gone unchallenged, however. Following the outcries over Tang Hui and Xia Junfeng, several commentators have warned against the adverse consequences of misguided popular sympathy, such as excusing clearly unlawful acts, exerting pressure on judges and exacerbating tensions between the government and the people. [5] These commentators see unprincipled, emotional populism as a threat to the absolute authority of law, and they contrast rational, stable ‘legal justice’ (falü gongzheng 法律公正) to the ‘naïve’ popular morality that suffuses public discussion of so many controversial individual cases. According to such accounts, to ensure that all are treated equally before the law, the public must refrain from mistaking sympathy for the weak and downtrodden as a form of justice: people must let the courts rule solely on the basis of facts and evidence. Hence, as one commentator recently remarked: ‘Compassion is a virtue, but law is the bottom line.’ [6]
Concerns about the influence of public sentiment on the judicial system are not new, and there are debates around the difficulties that popular sympathy and outrage would pose to the development of a system of objective, rule-based law as a basis for justice. In a remarkable number of respects, the tension between the Chinese legal system and popular expressions of moral sentiment resembles the situation described in historian Eugenia Lean’s account of a sensational murder trial in the 1930s. [7] Now as then, anxiety over the inadequacies and ineffectiveness of the Chinese legal system has encouraged people to view moral sentiment as a better measure of justice than the rationality and order promised by the existing system of ‘rule of/by law.’ As in the Republican period, sensational cases in China today offer vocal individuals—journalists, lawyers, academics, ordinary citizens—an opportunity to criticize the status quo and to recommend solutions to the nation’s problems. In an environment featuring ongoing censorship and media control, heated discussions over sensational cases thus provide a means of expressing oblique criticism of the state.
There are very reasonable grounds for ambivalence about the potential for populist sentiment to interfere with the judicial process and hinder the development of judicial independence in China. [8] Yet, precisely because commitment to rule of law or judicial independence remains unclear in the Chinese legal environment, it would be a mistake to see public sentiment in individual cases as wholly antagonistic to China’s legal progress. Moreover, it is problematic to demand absolute fidelity to law as the ‘bottom line’ without first taking steps to ensure that laws are based upon commonly agreed-upon moral principles, rather than simple instrumental value.
Given the importance of having a legal system that is seen to be legitimate, Chinese officials will increasingly be forced to take public sentiment and opinion into account in terms of the development of legislation and institutions. Whether Chinese public opinion is constructive or destructive insofar as the legal system is concerned will depend on how these expressions of public sentiment about human rights and rule of law are integrated into decision-making processes. If these principles become the basis of a more thoroughgoing reform of the legal-political system and constitutional order, then the results will likely be seen as legitimate. Conversely, if these sentiments are treated simply as one more set of interests to be managed in a reform process premised on strengthening order and preserving the political system, then popular opinion is likely to continue challenging the Chinese legal system’s failures to live up to its sense of what is right and just.
Notes
[1] Carl F. Minzner, ‘China’s Turn Against Law’, American Journal of Comparative Law, vol. 59, no. 4 (2011): 935-84; Eva Pils, ‘“Disappearing” China’s Human Rights Lawyers’, in Comparative Perspectives on Criminal Justice in China, ed. Mike McConville and Eva Pils, Cheltenham, UK: Edward Elgar, 2013, pp. 411-414.
[2] Joshua Rosenzweig, ‘Disappearing Justice: Public Opinion, Secret Arrest and Criminal Procedure Reform in China’, China Journal, vol. 70 (2013): 73-97.
[3] Commentary, ‘It’s Time for Resolution in Abolishing Re-Education through Labour’ 坚决废除劳动教养制度，是时候了, 19 October 2012, online at: http://view.gmw.cn/2012-10/19/content_5424897.htm.
[4] E.g. Qin Qianhong 秦前红, ‘Looking at Reform of Re-Education through Labour in Light of the Tang Hui Case’ 从“唐慧案”看劳教制度改革, 29 April 2013, online at: http://hbrb.cnhubei.com/html/hbrb/20130429/hbrb2031059.html; Wang Shichuan 王石川, ‘The Xia Junfeng Case Creates Pressure for Reform of Chengguan System’ “夏俊峰案”倒逼城管制度革新, 10 May 2011, online at: http://gcontent.oeeee.com/2/69/269d837afada308d/Blog/265/97cde4.html.
[5] E.g. Huang Linbin 黄琳斌, ‘The Tang Hui Case: The Dispossessed Ought Also Obey the Law to the Full Extent’唐慧案：弱者也应是不折不扣的守法者, 1 May 2013, online at: http://opinion.china.com.cn/opinion_72_69572.html; Li Erliang 李而亮, ‘The Xia Junfeng Case: Justice Cannot Be Obtained through Emotional Outbursts’ 夏俊峰案：正义不能从情绪化发泄中得到, 26 September 2013, online at: http://star.news.sohu.com/20130926/n387271365.shtml.
[6] Wang Hai 王海, ‘Compassion is a Virtue, but Law is the Bottom Line’ 同情是美德，但法律是底线, 1 October 2013, online at: http://pinglun.youth.cn/wztt/201310/t20131001_3964935.htm.
[7] Eugenia Lean, Public Passions: The Trial of Shi Jianqiao and the Rise of Popular Sympathy in Republican China, Berkeley: University of California Press, 2007.
[8] Benjamin Liebman and Tim Wu, ‘China’s Network Justice’, Chicago Journal of International Law, vol. 8, no. 1 (2005): 257-321.
