December 28, 2010
Rights lawyer Teng Biao and others detained, beaten, and released
Here's the story from a Wall Street Journal op-ed by Teng Biao. It's interesting to see the constraints that are observed or ignored by the police when they set upon Teng and his companions. A plainclothes officer bursts into the room they're in and refuses to show his ID. Teng insists on seeing identification. Eventually the policeman calls some colleagues, who then arrive on the scene. One of them shows Teng his ID, even letting him look at it long enough to note the name and number.
The police specifically deny that they are constrained by any law. One of them starts beating Teng, saying, "Don't talk so much about the law with me. Do you know where we are? We are on Communist Party territory!" I would call this a legal-realist approach to Chinese law. In matters such as shuanggui ("double-designation": the Party's system of coercive detention for investigation of those suspected of corruption), we see the same attitude that a legal basis is unnecessary for the actions of the Communist Party and its agents.
They then attempt to take Teng's cell phone away from him, but he resists. Curiously (to me, anyway), they then give up, even though he is using it to broadcast messages about the situation to Twitter. (They grab it later.)
The group is then taken to the local police station where a slightly comical exchange occurs. Teng says, "You have no right to take us into a police station. You can't be ignorant of the provision of Article 9 of the Police Law!" Uh-oh. A quick-witted police officer counters, "Want to tell us what it says?" Teng is only too willing - it's the provision dealing with the grounds for taking people in for questioning (none of which are present in this case). He comments, "I've been told by police officers that they hate the very bones of the legislators who created [these rules]." Even though the police can ignore them in any given case, then, apparently having the rules in print is not the same as not having them.
Eventually Teng lets the police take his ID and find out who he is: a lecturer in law at a well-known university, and someone to whose fate the international press pays attention. This, he figures, saves him from a worse beating and a longer detention. The group is eventually released after some more abuse.
The episode raises interesting questions about the degree to which the police are constrained by law. To those under their control behind closed doors, they deny that they are. And yet it wouldn't be quite true to say they were completely unconstrained. They don't like Teng and his friends but they eventually release them. It might be a mistake, however, to view the constraints on police as specifically legal constraints. They have constraints on their actions the way all of us do; the way even top leaders in China do. They have to think about the consequences of what they do. If they keep Teng Biao under detention and it gets reported in the press, maybe they will get criticized for attracting negative publicity unnecessarily. I raise this just as an example; one can think of many other ways in which the police could be constrained other than by China's legal institutions. In short, rules in legal form are not necessarily meaningless, but the fact that they might mean something doesn't mean it's the legal system that gives them meaning.
December 28, 2010 | Permalink
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Don't know if you're concluding observation is meant to distinguish China from other legal systems, but just wanted to mention that there is a significant literature out there dealing with Anglo-European legal systems that also finds that the law's meaning is innately a social meaning and not an autonomous product of the legal system itself. This is, for example, what Hart was getting at when he claimed that the "rule of Recognition", which ultimately gave a legal system its meaning, was a social rule rather than a legal rule. The latter work of Gunther Teubner also explores this. Following Hart, I think that there is good argument that it is precisely in the growth of social meaning that what we like to call "rule of law" takes shapes.
Posted by: Mike Dowdle | Dec 30, 2010 4:28:36 PM
Thanks, Mike. I'm not talking about "The Law" or the legal system as a whole, which of course can't bootstrap its own significance in the real world. And of course particular legal rules exist in a social context as well as a legal context. I was only trying to make the somewhat limited point, with which I doubt you disagree, that we cannot, from the observation that a legal rule is meaningful, conclude that it is legal institutions that gave it meaning. Unless, of course, one wants to define "legal institutions" very broadly. But I'm using a narrow definition here.
Posted by: Don Clarke | Jan 2, 2011 11:03:02 AM
Sorry for continuing this, but I'm working on precisely this issue in a paper I am writing, so I want to use this to work it out in my head.
I think I generally agree with you, but I think that the statement "that we cannot, from the observation that a legal rule is meaningful, conclude that it is legal institutions that gave it meaning" is a little to simplistic. I think that the legal system gives it some meaning: the fact that the norms cited by Teng came from legislation and not simply from academic interpretation clearly influenced the meaning these norms had for the policy. The designation of "legislation" is purely a product of the legal system. So its really a question of the interaction of the meanings of the legal system (one particular kind of social meaning) with other sources of social meaning within society (professionalism, in this case).
One of the things that I took out of this story was how the police themselves did seem to be wrestling with this new conflict of social meanings -- i.e., legal meaning vs. professional standards (see also the concluding conversation that Teng had with the police officer on on leaving the station). My suspicion is that this process of wrestling is a somewhat new development (although it comports with some of Murray Scot Tanner's work in of the mid 2000s). The longitudinal development of this process is something that bears looking into (both through field work and comparative analysis). It could have something important to say about the developmental trajectory of law and legality in China.
Posted by: Mike Dowdle | Jan 3, 2011 5:13:47 PM