Tuesday, November 23, 2010
I am sorry to report that Professor CAI Dingjian (蔡定剑教授), Director of the Institute for Study on Constitutionalism at China University of Political Science and Law, passed away early in the morning of November 22nd. Prof. Cai was a widely respected figure both among his colleagues in China and among the foreign community of Chinese law scholars. He was also a very fine human being.
There's a web site dedicated to his life and work here: http://www.chinaelections.org/specialtopic/SpecialTopicc.aspx?sortid=1278
Below is an obituary from the South China Morning Post, and below that, a remembrance from a friend published in 新京报.
Well-respected reformist, rights advocate dies
Nov 23, 2010
China lost a heavyweight fighter for legal and political reform yesterday when constitutional law professor Cai Dingjian died at the age of 54.
A gentle but firm advocate of "constitutional democracy", Cai's death stirred an outpouring of condolences from lawyers, academics, students and rights groups.
He had been battling cancer for nearly two years, during which time he continued to write and speak out passionately on a range of legal and rights issues.
Cai switched to academia in 2004 after years of serving the government and was one of the few reformists to command respect both within and outside the government.
A soldier with the People's Liberation Army during the Cultural Revolution, he joined the China University of Political Science and Law in 1979, where he began his legal studies. He continued working in the politics department upon graduation, but switched in 1986 to the National People's Congress Standing Committee, the country's highest legislative body, where he stayed for the next 17 years. He was vice-bureau-chief of the NPC Standing Committee secretariat when he left at the end of 2003.
Saying he wanted more freedom to do research, Cai returned to the university and taught administrative law. He also advocated constitutional democracy - striving to realise democracy through implementing the constitution and strengthening the law. He was director of the university's Institute for Study on Constitutionalism while also serving as a dedicated member of the Centre for People's Congress and Foreign Legislative Study at Peking University.
A model scholar, he pursued his goals through "a combination of field experience and academic rigour", many of his contemporaries said.
He wrote more than 200 research papers and often made comments in the media, with emphasis on the election and People's Congress systems, raising governance and state budget transparency, and, more recently, fighting discrimination.
Even when he worked for the NPC, he advanced rational arguments on why and how democracy should be realised in China. In 2003 he published a research paper arguing against the contention that electoral democracy would not work because most of the citizens were not educated enough.
Many believe that paper landed him in trouble and prompted his move into academia. His last book, Democracy is a Modern Lifestyle, was published in January.
Online postings and rights advocates mourned his passing. "We have lost an inspiring teacher, a respected scholar in law, a good friend for the civil community, and a public intellectual who fights for the rights of the less privileged in Chinese society," the Yirenping Centre, an anti-discrimination legal aid group, said.
Monday, November 15, 2010
[A Chinese version of this post is available here.]
Earlier this month I was on a panel entitled "Governance: China's evolving relationship with its citizens" at the Economist China Summit conference. Here's my three-minute presentation. I spoke quickly.
In my three minutes, I’d like to talk about the relationship of China’s legal system to China’s governance: not only where we are now, but where we are going. I’m going to look at three areas.
Professionalization versus politicization in the court system
From the early post-Mao era until quite recently, we could observe a clear and uncontroversial trend in the courts and in the legal system more generally: that of professionalization. In other words, the debate about whether it was better to be red or expert was pretty conclusively decided in favor of being expert, at least in most legal positions and subject only to relatively undemanding political criteria. Judges became better and better educated and the law became more and more detailed. This trend was exemplified by the 1997 revisions to the Criminal Law, which didn’t significantly liberalize it, but went a long way toward removing political slogans from its text and got rid of vague and undefined crimes such as “hooliganism” and “speculation”. And in 1991 the Civil Procedure Law was revised to remove the specific preference for mediating civil cases; from that time on, judges could mediate cases but it wasn’t officially urged on them.
Under the current Party and state leadership – that is to say, the Hu-Wen government – and particularly in the last few years, that trend has suddenly become unclear. Many articles have appeared in official and quasi-official media calling into question the value of professional qualifications in judges, suggesting that judges are overly isolated from the masses. We have started hearing a lot more about Ma Xiwu, a Party legal official who in the 40s and 50s became known for his informal and mass-based style of handling cases: ride into the village, sit down with everyone, talk it all out, and come up with a solution that everyone can accept. The new trend is perhaps most strikingly personified in the current president of the Supreme People’s Court, appointed in March 2008, whose biography lists not a single day of legal training.
Why does this matter? It matters because it suggests that it is a mistake to see China as following some kind of linear path in governance matters, and moving from being a lot different from the West to being very similar. China is going to continue to go its own way. And that way will be one in which the formal rules of law simply do not get even the same kind of lip service that formal rules get in many other countries. This means in turn that we just cannot expect a number of governance functions to be carried out through formal law and the courts.
Governance through law or through bureaucracy?
This brings me to my second topic: governance through law or through bureaucracy?
What I mean by this is the following: How can we predict what a particular official will do? Will we do a better job by looking at what the law says he should do, or by looking at the set of incentives he faces that his superiors have set up for him? I believe that in China, the answer is overwhelmingly the latter. It’s the immediate incentives that matter. Thus, if superiors say, “Don’t have any over-quota births or else you’ll never get promoted,” then the official will move heaven and earth to prevent over-quota births, no matter what the law might say about forbidding forced abortions. If superiors say, “You will be rewarded for more output in your district,” then we’re going to see more output, regardless of what environmental laws say.
What this means is that we can’t just look at legislation and official documents as establishing or changing policy in some area. We have to ask what, specifically, particular officials are getting rewarded and punished for. Unfortunately, this kind of information is not readily available. But it’s a question we need to be asking. Moreover, I don’t see any sign that the need to ask this kind of question is declining.
Dysfunctional focus on stability
This brings me to my last subject, what I have called “the dysfunctional focus on stability”: for what kind of things are officials being rewarded and punished? The main message officials are getting from their superiors is, “I don’t want to hear about trouble in your jurisdiction.” Officials at every level are subject to remarkably detailed rules about how they will suffer if petitioners, for example, take their complaints to higher authorities. This has two quite predictable and pernicious consequences.
First, of course, people with justified complaints are repressed, sometimes violently and unlawfully. Second, and less appreciated, is the fact that unjustified complaints are often rewarded. If the complainer is sufficiently obstreperous, the local government may feel it’s simpler all around just to buy the complainer off. Indeed, this is one purpose of so-called “stability maintenance funds”, which are now part of the budget of some government bodies such as courts. Needless to say, once people start hearing that this can happen, the result is not more harmony, but less. Paying off the extortionist tends to encourage him. But if you are a local official, your calculation is probably that your payoff keeps the peace this year, and if it makes things even worse a few years down the road, well, you’ll already have been promoted by then and it will be your successor’s headache.
Wednesday, November 10, 2010
[A Chinese version of this post is available here.]
If you believe what Chinese government spokespeople tell you, the Chinese people are a delicate, sensitive lot; picture 1.4 billion Lin Daiyu’s and you’ll get the general idea. It seems they are constantly having their feelings hurt by cloddish and ill-intentioned foreigners. Yet who are the worst offenders? This vital empirical question has finally received the attention it deserves; the results are reported here (in Chinese only; sorry).
The study, by a young Chinese journalist, examines an electronic database of the People’s Daily for the years from 1946 to 2006. If the study is accurate, the feelings of the Chinese people were hurt only once before 1978 – by Indonesia, way back in 1959 – but since then all continents have pitched in, with the sole exceptions of Australia and Antarctica. (I believe the Aussies sullied their record of inoffensiveness after 2006.) The worst offenders? The Japanese, of course, at 47 instances. The Ugly Americans are a distant second at 23, and even if you credit all of NATO’s offenses to them don’t manage to get more than another 10. The Indians come next at 7 instances, while the French and Germans belie their national stereotypes with a mere 5 and 3 instances respectively.
For a map of offensiveness, check out this blog post.
Here's something that isn't necessarily about Chinese law, but certainly includes it as a possible subject matter:
The O’Brien Fellowship was established in 2005 through a very generous gift from David O’Brien (BCL ’65) for outstanding graduate students studying in the area of human rights and legal pluralism in the Faculty of Law.
More information at the following links:
Tuesday, November 9, 2010
[A Chinese version of this post is available here.]
I attended an interesting conference in Beijing on Nov. 6th on practical issues in corporate law litigation in China. There were a number of judges there who spoke about the kind of cases they were seeing.
I was asked to talk for three minutes about mandatory versus non-mandatory rules in corporate law. Having only three minutes, like the prospect of being hanged, concentrates the mind. Here’s the general gist of what I had to say.
First, I made the observation – now unoriginal, I think, in US corporate law circles, but I don’t think widely appreciated in China – that mandatory rules may not be all that mandatory and that non-mandatory rules (i.e., default rules that can be varied if people want to do so) may not be all that optional. Bernard Black famously wrote about the former issue several years ago in his article, “Is Corporate Law Trivial?”, 84 Nw. U. L. Rev. 542 (1990), and the latter point has been made more recently by (among others) Yair Listokin, “What Do Corporate Default Rules and Menus Do? An Empirical Examination,” 6 J. Empirical Leg. Stud. 279 (2009) and Brett McDonnell, “Sticky Defaults and Altering Rules in Corporate Law,” 60 SMU L. Rev. 383 (2007).
Mandatory rules can be evaded if you can choose a different organizational form – for example, you choose to organize as a limited partnership in order to avoid things you don’t like about the law applying to corporations – or a different jurisdiction altogether in which to incorporate. Optional rules may not be so optional if it’s costly for some reason to choose something other than the default rule provided by the law (and there has to be some default rule).
Particularly when talking about mandatory rules, it occurred to me that the Chinese participants at the conference might be thinking to themselves, “Well, it may be true in the US that you have a huge menu of organizational forms and jurisdictions of incorporation from which to choose, but what’s that got to do with China? That’s not the reality we face here.” Precisely. Business people in China face a much more restricted set of choices. First, there is only one company law: the national one. There is no jurisdictional competition within China. Second, incorporating abroad creates as many problems as it solves. Among other things, foreign companies are subject to considerable restrictions on what they can do in China. Although Lenovo went this route, incorporating in Hong Kong, not many companies can as a practical matter follow in its footsteps. Finally, China’s laws on business organizations – mainly the Company Law and the Partnership Law – offer much less choice of organizational form to businesses. If you want to list your stock publicly, for example, you must be organized as a joint stock company (gufen youxian gongsi, also translated as “company limited by shares”).
What’s the significance of this? It means that Chinese should be especially careful about borrowing mandatory rules from jurisdictions where extensive choice in fact exists. There is a tendency to think that Delaware or the Model Business Corporation Act must have it right in many respects, and that where something is mandatory in those statutes there should therefore be at least a presumption in favor of making it mandatory in China. But a mandatory rule in Delaware has to be understood in context: it’s mandatory in a world where you don’t have to incorporate in Delaware and where you may not have to be organized as an ordinary corporation. In this sense, then, companies subject to Delaware’s rules have all chosen to be subject to them and we can assume that the rules can’t be too burdensome to those companies.
In China, however, such a mandatory rule would have a much stronger effect. Companies could not easily opt out. Thus, companies for whom the mandatory rule was highly burdensome would have no escape. In other words, importing mandatory rules from jurisdictions where real choice exists is importing something that doesn’t really exist in the country of origin. China will end up with a company law that is much more rigid than the company law of the jurisdictions it is trying to emulate.
Sunday, November 7, 2010
I have been asked to post the following job announcement:
The China Law Center at Yale Law School is seeking applications from American-qualified lawyers for an open position of Fellow or Senior Fellow in the Center’s Beijing office. This position requires working with senior Center staff to identify, design, and carry out research, academic exchange and collaborative projects involving U.S., Chinese, and other legal experts on topics relevant to Chinese law and policy reform. For details, please see this job posting.
Thursday, November 4, 2010
I have received the following announcement. Note that one of the postdocs is on the theme of "China Justice". (Whatever happened to "Chinese" as an adjective?) A summary is below; full text here.
The Australian Centre on China in the World (Centre) is a major new initiative at the ANU that has been funded by the Australian government.
It enhances the ANU's existing capabilities to create an integrated, world-leading institution for Chinese Studies and the understanding of China on a global scale.
The Centre wishes to appoint a number of post-doctoral fellows to do research in one of the five research themes - "China Time", "China Urban", "China Justice", "China Texts" and "China Everyday". Outlines of these themes are available on our website, http://ciw.anu.edu.au or by request.
The appointees will have submitted a PhD in some area of Chinese Studies, know Chinese, English and, preferably, at least one other language (not just another dialect of Chinese), and have cogent and achievable research and publication plans for the period of the fellowship.
The fellowships may be offered for one or two years (research intensive), three years (research intensive), or four years (half-time research/half-time project administration for the first two years, research intensive for the second two years). Candidates should indicate in their application which type of appointments they would be interested in.
For more information, please contact Prof Geremie Barmé
T: +61 (0)2 6125 6500 E: firstname.lastname@example.org
Tuesday, November 2, 2010
The Wall Street Journal's China Realtime Report writes:
China’s property sector, with its forced evictions and sometimes bloody confrontations, has long been described as something akin to a war zone. Now a team of online volunteers, led by an anonymous Chinese blogger, has launched a map-based project that brings that simile into stark relief.
Called “the Blood-Stained Housing Map,” the project uses Google Maps to plot violent housing evictions and land grabs across the country. The result bears an eerie, and sobering, resemblance to the Guardian’s own Google Maps chart showing deaths recorded in the Wikileaks Iraq war logs.
Monday, November 1, 2010
Here's the job announcement, and here's a summary:
NRDC is seeking a full-time Staff Attorney to be based in Beijing, China. The Staff Attorney will work to promote China’s environmental rule of law and legal development in support of NRDC’s strategic goals of greening China and improving public health. The Staff Attorney will be in charge of implementation of NRDC’s China environmental information disclosure and environmental health governance projects.
The job announcement says, "Applications accepted on a rolling basis until the position is filled." I note that a Chinese law degree is listed as one of the necessary qualifications for this post.