Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Monday, November 15, 2010

The Chinese government's evolving relationship with its citizens

[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.

 

November 15, 2010 in Commentary | Permalink | Comments (1) | TrackBack (0)