Chinese Law Prof Blog

Webcast: Panel discussion on "China's Changing Courts"

Here's an announcement from NYU Law School's U.S.-Asia Law Institute. I attended this discussion and it was very good. All the participants are doing very interesting research on China's courts.

Now showing on the US-Asia Law Institute’s website is the webcast of “China’s Changing Courts: Populist Vehicle or Party Puppet?” from Thursday, Feb. 19, 2009 and featuring a panel of China law scholars, including Prof. Ben Liebman of Columbia Law School, Prof. Xin “Frank” He of the City University of Hong Kong School of Law, Prof. Nicholas C. Howson of the University of Michigan School of Law, Prof. Carl Minzner of Washington University School of Law, and Rachel E. Stern, a Ph.D. candidate at the University of California, Berkeley.

We invite you to watch the webcast here: http://www.usasialaw.org/

After watching, please submit questions to the panelists.

The panelists will be taking questions from the web audience; 10 questions will be answered on our website.  Please submit questions by Wednesday, February 25, 2009 via email: usasialaw@nyu.edu with the subject line "Court Panel Question."

We will post the answers by Monday, March 2, 2009.

Note that you will need RealPlayer to watch the webcast.  RealPlayer can be downloaded for free: www.real.com

Customary law among the Miao (Hmong) in Guizhou

Self-described barefoot scholar David Cowhig (currently living in Chengdu) offers this very interesting review and summary of one of two books he recently came across on customary law among the Miao (known outside China as the Hmong). I've made a few minor editorial changes.

Photo: Cow awaits slaughter for fire prevention feast in Leishan County, Qiangdongnan Miao and Dong Autonomous Prefecture ethnic Miao (known outside China as Hmong or Mong) village.

Every New Year, many Miao villages have a fire prevention ceremony. All home fires are extinguished, the villagers pledge themselves to fire safety and then the members eat and drink together. They eat the meat of the ox. If someone has a fire during the year, they have to pay to buy the ox for the next year's fire prevention ceremony. On the village level, Miao customary laws and regulations operate in parallel with and reinforce provincial and national regulations, according to recent book by two Guizhou University scholars. Here is capsule summary of one of them: Miao Customary Laws and Chinese State Laws Seen from the Perspective of Legal Diversity A Field Study in the Ethnic Miao Nationality Region of Southeast Guizhou (法律多元视角下的苗族习惯法与国家法——来自黔东南苗族地区的田野调查[Falu duoyuan shijiao xiade miaozu xiguanfa yu guojiafa laizi qiangdong dongnan miaozu diqu de tianye diaocha]) by Xu Xiaoguang 徐晓光 and Wen Xinyu 文新宇, published Guizhou, December 2006, Guizhou Minzu Chubanshe (Guizhou Nationalities Publishing House). Xu Xiaoguang is a professor at the Law School of the Guizhou Minorities University. Wen Xinyu, an ethnic Miao and native of Leishan County, is an assistant researcher at the Guizhou Academy of Social Sciences and graduate of the Law School of the Guizhou Minorities University.

The Miao do not have a written language so their laws and legal tradition are passed down through word of mouth, especially during gatherings at special memorial markers and through songs. Customary law enacted over the centuries covers a wide range of issues including marriage, libel, theft, murder, land boundaries, mountain land use, forest rights, and extortion. Miao have used gatherings for legislation and setting up boundaries and to organize themselves regionally, as in 1937 when thousands of Miao rallied to oppose high taxes and impressments of Miao into Chiang Kal-shek's KMT army. For the past several hundred years, rich forest resources brought more attention to the Miao areas of Guizhou and the increasing imposition there of Chinese law and written contracts, although Miao traditional law continued to function at the local level. During the Qing Dynasty (1644 - 1911) central government officials in Miao areas left village civil disputes to traditional laws and often deferred to customary law in handling serious criminal cases as well.

Miao customary law sets aside village forest land as a community resource that is protected and managed. The rich forest resources in the Miao areas were one of the reasons for strong Han immigration and conflict in the nineteenth century. With the founding of the PRC in 1949, Miao traditional, man-made forest lands were mistakenly considered to be virgin forest and so became state property whereas they were actually well-managed resources. The removal of the forestlands from the management under Miao customary law and their effective opening to anyone's use as "state or local collective assets" led to serious conflicts during the l980s. For example, from 1981 - 1987 in the Miao county of Jinping alone, there were over three thousand forest land disputes that led to nine riots, three deaths and 86 people seriously injured. During the l990s, many Miao villages in the Qiandongnan Miao and Dong Autonomous Prefecture (黔东南苗族侗族自治州) re-established traditional regulations and fines relating to forest management that had previously been in effect for hundreds of years.

Traditional customary Miao law, operating in parallel with PRC law, has proven effective in restoring order to forest management. Offenders are typically fined cows or pigs which they must contribute to a feast enjoyed by all the villagers (see Xu and Wen, pp. 122 - 132).

During the past 30 years of opening and reform, Miao traditional law has again come to play an important role in resolving village disputes. The authors caution "we should uphold Marxist dialectical materialism, and study [traditional law] and keep the part of it that represents a good popular traditions and reject the part of it that is feudal nonsense." Village disputes are solved by debate in front of all the villagers, sometimes checking whether a duck's eye is intact after cooking to determine if the accuser or the accused should win. Once the verdict is decided, everyone shares in the feast as a pledge that the dispute is settled and the village rules will be obeyed. If a solution is available under Miao law, Miao generally will not take their cases of a PRC state court, even in instances where the punishment would be much lighter under PRC law.

A survey of people fined under Miao traditional law generally told researchers "our village rules were made by everyone, including me. Therefore they must be carried out." (Xu, p. 82.) The authors write that the "PRC Village Council Organization Law" allows villages to make regulations as long as they do not conflict with the PRC constitution, laws and regulations and even gives villagers the right to fine themselves. (Xu, pp. 80 - 83.) The authors remark that they recall how for decades China has tried to implement the rule by law in the countryside yet has failed, yet in their studies of Miao villages they see how PRC laws are routinely ignored but are then deeply impressed how villages very conscientiously respect Miao customary law. (Xu, p. 85.) The authors note that the revival of customary law and village self-governance has made possible the revival of clan power, with the problems that brings, although clans can sometimes play a useful role in solving dispute in the current transitional period before rule by law can be fully established in the villages.

A review of this book in Chinese is at www.cqvip.com/onlineread/onlineread.asp?ID=25029636 .

Jerome Cohen and Eva Pils on Gao Zhisheng: still desaparecido

Here's an op-ed in today's Wall Street Journal by Jerome Cohen and Eva Pils on the continuing disappearance of Gao Zhisheng (高智晟). Actions like this are the most convincing refutations of the "Asian values" thesis that holds that human rights violations are just manifestations of differing values conscientiously held.

If you want to see differing values (differing from mine, at least) conscientiously held, look at capital punishment in Texas, where one gubernatorial race (known locally as the "fry-off") had candidates arguing about who could take credit for more death sentences during their respective previous terms as governor and attorney-general. They weren't trying to hide anything.

Gao Zhisheng's case is obviously different. Here we have a government that is unwilling to say, "Yes, this man did X, we believe it's wrong, and we're going to punish him for it." In effect, they are acknowledging the validity of a value system under which Gao (apparently) isn't punishable. They say that hypocrisy is the tribute that vice pays to virtue. The same thing is going on here: concealment and lies are the acknowledgment that what's going on here is not some civilizational clash of values at all.

Even if I'm right, of course, this incident logically refutes the Asian values thesis only in this particular instance, not in all cases at all times. (There are other weaknesses of the thesis that I won't go into here in this short post.) But cases like this are pretty common; the typical response of human rights violators is not to justify the violation but to deny it. (Take this recent report: the Chinese delegation to the UN solemny declared that China does not engage in press censorship!)

New report on re-education through labor by China Human Rights Defenders

Full text available here.