Posted by Martyn
When talking of the rule of law in China, or more specifically, the lack of it, it’s hard to be optimistic, particularly after recent government backtracking on reform in the face of rising s0cial unrest. However, it’s sometimes worth remembering that during the Mao years and, to some extent, even into the eighties and nineties, China’s population had few legal rights, whatever laws were enshrined in the PRC constitution. Apart from the ancient system of appealing to the centre which, amazingly, remained throughout post-1949 China, even during the Cu1tural Rev0luti0n, expressing dissatisfaction was a good way of getting into serious trouble and therefore was usually avoided at all costs.
Nowadays, however, there is a rising public awareness among Mainland citizens and an unprecedented desire to assert their legal rights in the face of the numerous injustices produced by recent economic growth and the rapid opening of society. Whereas previously, the people would suffer in silence, resigning themselves that nothing could be done in the face of corruption, abuses by local officials, land grabs, forced eviction, illegal taxes, pollution and a host of other excesses, nowadays the victims are far more likely to take their grievances to court:
A new breed of Chinese public-interest lawyer is leading the push to establish real rule of law. The bravest handful have argued cases on illegal land grabs and seizures of private property by local officials, on freedom of the press and on unauthorized taxation. They’ve won a few cases that have become legendary among the growing body of Chinese lawyers. Their efforts, and the rising legal consciousness of the Chinese people, hold hope of change from within.
Where did this “rights consciousness” originate? I asked New York University professor Jerome Cohen, one of America’s foremost experts on Chinese law. “China is alive with a sense of injustice fueled by the huge gap between rich and poor,” says Cohen, who is currently in Beijing. The government’s pro forma endorsement of the rule of law has encouraged ordinary folks to try the courts. A wealth of legal information is now available on the Internet and elsewhere. “Chinese bookstores have shelves stocked with legal how-to books,” Cohen says.
While many of this new generation of young lawyers acting out of the public interest, rather than the interests of the state, are now languishing in prison, usually on trumped up charges such as leaking state secrets, such draconian methods by the government are not enough to stop this rising trend within society.
Some elements within the government are nervous that making everyone equal before the law would limit the CCP’s ability to control the population. However, such voices completely fail to see the bigger picture. Establishing the rule of law in China might well actually prolong CCP rule by acting as a pressure-valve in a society dogged by injustices and social unrest. After all, how many of the 74,000 protests last year (official figures) took place partly because aggrieved people felt that they had no other means of redress other than taking to the streets? In order to keep legal cases in check the CCP will have to prevent corrupt officials from running rampant and ensure something called good governance and good public administration, or is that too much to ask?
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By Fishling
The young lawyers acting out of the state interest were mostly on business cases I think, where the government is relatively loosely controlled.
If we put the legal system in a broader social picture, we may find those parts reflecting the interests of the elites are making progress towards a more decent legal spirit; though, those on the behalf of underclass people is changing rather slowly. That’s why too, all sorts of business union, protecting the rights of business class is legalized and spreading here whereas most of the labor’s unions remain underground.
Protests are exposed relative easily these days, I think mostly is because of the spreading of media influences. People are getting more aware of what the life should be like (designed by elites) from TV, imitate them, helping medias get its publicity.This, however, in a deeper sense it’s still an elite culture. Those exposed are not really effecting the life in the top percentile, those are, were not exposed still.
September 23, 2005 @ 9:34 pm | Comment
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By Martyn
That’s a very intelligent comment Fishling, thanks for that.
The legal cases that I have heard about the most involving these brave young lawyers mostly involved housing disputes in the cities and land disoutes in the countryside. At least these are the past cases that have caught my attention.
I agree that the overall trend in China is towards people generally becoming more aware of their individual rights and, yes certainly, the fact that the elites lord it over people only drives others to demand similar legal protection. Corruption, also I think, plays a large part in driving people to demand fair treatment under the law.
74,000 annual protests is just over 200 per day. Even this offical estimate is astonishing.
Brute force can only do so much to maintain order in society. Sooner or later the govt will (I hope) have to address the root causes of these protests. Providing an effective rule of law would not only provide an opportunity of resolving disputes but may also expose corrupt local officals.
Perhaps that last point is part of the reason why the govt remains hesitant. After all, local corruption is an enormous problem.
September 23, 2005 @ 9:50 pm | Comment
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By Ivan
Mostly I agree with Fishling’s observations here. In my experience, China’s elites (including lawyers of course) are taking the rule of law very seriously as the most viable means of ensuring stability and some kind of authentic means of reform.
But I will add, that history demonstrates it is no bad thing for the rule of law (and other political reforms which are contingent on it) to be driven by elite and/or privileged classes in the first instance.
The democratic revolutions of England, America and France were all initiated, driven and led by the upper classes (although China’s official “history” textbooks do not say this, and most Americans do not understand it either.) And it was no bad thing for the first six US Presidents – the best we ever had, except for Lincoln and FDR – to have been men of privilege. (As FDR was as well, and he did more for the lower classes than any other President in history….)
Contrary to many popular misconceptions, most great democratizations have come from the top down.
September 23, 2005 @ 9:53 pm | Comment
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By Ivan
Oh and parenthetically, I do not consider the Bushes to be upper class – not in the same way as Washington and FDR were. Having lots of money is not the same thing.
The Bushes actually come from humble origins just a few generations ago. (I will say nothing here about the Nazi origins of the Bush fortune, lest Gordon start cursing at me 🙂
They’re like the Beverly Hillbillies, almost literally. They’re shit-kicking troglodyte vulgarian parvenues. GW is like Jethro the idiot son, and sometimes his Pa scratches his head and says: “Someday I gotta have a long talk with that boy…..”
September 23, 2005 @ 10:04 pm | Comment
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By Daniel
While aspiring to build a true rule of law is the road that china should be taking, the biggest obsticle will be that it will mean the govt loosening its control of the courts. In china, the govt IS the law and there must be very few officials around china that would welcome being subject to the law. A bit like feudal times when peasants could not take the noble class in front of a magistrate.
It would be a good way of establishing real legitamacy rather the present xenophobic nationalism. The rule of law would also give china unprecedented international respect.
It it does happen, I would expect it to happen at an excruciatingly slow pace.
September 24, 2005 @ 12:09 am | Comment
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By Brian
One thing is for sure. China will find itself on thin ice in the years ahead if it does not push ahead and try to establish something approaching the rule of law.
At the moment, the cadre economic elite have zero fear of the law because they are the law and they can afford to act like one big pampered club in China. Occasionally, some local cadres will be taken away and shot to make up the figures in the government’s latest strike hard against corruption campaign and give the state press a few more reasons to write articles praising the wisdom and decisiveness of the glorious party.
Otherwise though, most cadres are the untouchables. The Chinese state is being looted big time by the ccp. Is there such a thing as a poor cadre?
September 24, 2005 @ 6:04 pm | Comment
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By Brian
Btw, where are all the china apologists who regularly come out of the woodwork everytime taiwan or japan are mentioned?
The silence is deafening!
September 24, 2005 @ 6:06 pm | Comment
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By Daniel
That’s a fair enough point Brian. According to the China constitution, China has a rule of law and the people have all sorts of individual rights – even the original constitution drawn up in the 50s! In practice, however, it is another matter. Maybe this post offers a small ray of hope.
September 25, 2005 @ 2:55 am | Comment
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By Martyn
Thanks Brian, Daniel – some interesting points.
At the end of the day, I also feel that the rule of law is POSSIBLE in China. Perhaps not quickly – or even likely but POSSIBLE.
D3m0cr@cy isn’t I’m afraid.
September 25, 2005 @ 5:01 am | Comment
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By PS
I can only see the govt paying lip service at best to the rule of law as the govt will always want to retain the final word and will never completely subject itself to answer to the law, especially at local level. Even if beijing implemented new laws making cadres answerable to the law, it would be impossible to implement it in the provinces.
September 25, 2005 @ 7:27 pm | Comment