Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Thursday, May 26, 2011

China's Jasmine Crackdown and the Legal System

[The following commentary appears in revised and shortened form at the Australian National University's East Asia Forum web site.]

Since late February, China has seen a wave of detentions and disappearances of lawyers, activists, and others whom the state apparently finds threatening. Particularly alarming to many is the government’s apparent disdain for even the modest requirements of the laws that it created itself. While some people have been detained or arrested in accordance with procedures required under Chinese law, others have simply been picked up by security officials and disappeared.

The immediate cause is doubtless the government’s desire to forcefully dispel any fantasies Chinese citizens might have about having their own Jasmine Revolution. More concretely, in the current atmosphere no official wants to be on the receiving end of an angry telephone call from his superior when someone he has failed to control causes a stir that in some way embarrasses the leadership. There is little downside to detaining as many potential troublemakers as possible, and no upside to erring on the side of tolerance.

What this means for our understanding of China’s legal system is not immediately clear. Here I will canvass three different viewpoints, each widely held, and then suggest why I think they are not completely satisfactory. I will then propose my own way of understanding what’s going on.

One school of thought I’ll call the Disappointed Optimist. The DO sees China’s legal system as a work in progress, constantly heading towards the kind of system the DO sees as desirable (an idealized version of the legal orders of the developed West) but also constantly subject to setbacks: the Antirightist Movement in the late 1950s, the Cultural Revolution in the mid-1960s, the June 4th massacre in 1989, and now the current crackdown. At each setback the DO is strongly tempted to throw up his hands in despair and may even do so, but eventually his innate optimism gets the better of him, and the inevitable post-setback recovery makes him think that perhaps China is really on track this time. The DO’s response to the current crisis is to declare that China has reneged on its commitment to the Rule of Law and is now moving backwards—a direction that can only be ascertained and labeled if one has a theory about where the legal system is and ought to be heading.

Another school of thought is the Realist Separationist. The Realist Separationist sees himself as having clearer insight than the sentimental, hand-wringing DO. According to the RS, the Chinese legal system can be divided into two spheres: that of politically sensitive matters and that of ordinary matters. Or the RP might also say that the legal system simply doesn’t cover politically sensitive matters, and should be understood as having only a limited reach. While acknowledging that politically sensitive matters are not now, and should not be expected any time soon to be, governed by legal principles, the RS points to steady progress (labeled as such, not simply “movement” or “change”) in the legal system in areas such as ordinary commercial disputes. In other words, the non-political sphere of law is getting better and bigger.

To the RS, then, the main story of China’s legal system is what’s happening for most Chinese who interact with it in non-sensitive ways, not for the few who get into political trouble. And that story is by and large a satisfying one. The RS might, therefore, share the DO’s dismay at the current crackdown, but does not see any need to revise his views about China’s legal system. Indeed, he may go out of his way to refute the DO’s assertions that China has abandoned its commitment to the Rule of Law by pointing to developments in the non-political sphere.

A third school of thought is the T-Told-You-So Cynic. To the IC, nothing has ever really changed about China’s legal system: it has always been a sham. Any “progress” has been at best a house of straw that collapses at the least puff of political wind. To the IC, therefore, the border between the politically sensitive and the non-sensitive is so fragile and porous as to be essentially non-existent; any matter can, in the right circumstances, become politically sensitive and so the distinction loses its value. To the IC, the current crackdown is just the system showing its true colors; far from being of marginal importance, politically sensitive cases are precisely where we should look in order to see the essence of the legal system. A house of straw really is different from a house of bricks, so even if fierce political winds blow only rarely, we should grasp those moments in order to understand the difference. Like the RS, the current crackdown gives the IC no reason to change his views; it simply confirms his view that the state never had a commitment to the Rule of Law, and therefore the current crackdown is nothing to be surprised at.

I believe the current crackdown can best be understood from yet a different perspective. That perspective requires abandoning a concept common to all three schools of thought outlined above: the “Rule of Law” and China’s movement toward or away from it. The DO sees China moving in fits and starts toward it, but is constantly disappointed. The RS sees the Rule of Law as growing and at least potentially present in one sphere while admittedly absent in another. The IC sees the Rule of Law as absent everywhere and then has nothing more to say about China’s legal system.

But suppose we stop asking whether and how far China is traveling along the road to the Rule of Law, understood here to mean a system where there are meaningful legal restraints on the powers of government and those in power cannot do simply as they please. Let us face the fact that if legal systems can be said to have ambitions, that has never been the ambition of the current Chinese legal system. This should not come as a surprise; Chinese political leaders have repeated the point over and over. Rights lawyers detained by the police who make legal objections regularly report responses like that received last year by Teng Biao: “Don't talk so much about the law with me. Do you know where we are? We are on Communist Party territory!” and “You belong to the enemy! ... In that case, we don’t have to talk about legal constraints at all!” In their sometimes crude way, those who hold power in China keep telling us how the system works; the problem is that sometimes we don’t want to listen.

What they are saying is that political power was not, is not, and will not be constrained by law. The DO is wrong because there was never any governmental commitment to the rule of law (understood as legal constraints on state power) from which the government later backtracked. The RP and the IC are wrong for more complex reasons.

The RS is wrong because the distinction between the politically sensitive and the ordinary keeps breaking down precisely when it needs to matter. An ordinary matter can become politically sensitive, and thus removed from the sphere where the RS observes the growth of the Rule of Law, any time someone with sufficient political clout decides it is. Indeed, the RS’s definition of “politically sensitive” sometimes seems tautological, relying not on the nature of the case but instead on whether it ultimately in fact did or did not attract political attention.

But isn’t the RS right to identify real progress somewhere? How should we understand the improved educational level of judges, the rising number of case reports posted on line, the increasing sophistication of legislation? Can the IC really be right that this all means nothing?

Indeed, the developments identified by the RS do mean something. But they don’t mean movement along a path toward the rule of law. And here we come back to the central point: China’s legal system was never about the rule of law. It has been and remains about making government function more efficiently. This does not mean it does not take care of issues that arise between citizens that have little plausible connection to the government. But it does that in effect on the side; the fundamental characteristics of the system, and its place in the polity, stem from its statist orientation.

The developments identified by the RS are indeed real; governments can function with widely varying degrees of efficiency, and different political and economic environments will call for different efficiency-enhancing measures. Given the government’s economic policies in the post-Mao era, the pre-1979 legal system could hardly have done the job. But it is a mistake to interpret them as developments in the direction of the rule of law, even though they show many of the features we might expect to see in such developments. A well organized army, for example, could develop a highly bureaucratized system for ensuring that commands were accurately passed down and properly executed. It might come up with procedures for resolving disputes between soldiers. But that would not change the fact that all those procedures are not intended to, and do not, restrain the commander. The commander can change or disregard his own rules at any time; whether or not he does so is purely a matter for his own pragmatic consideration. If he observes a rule when it is not in his immediate interest to do so, it is because he has calculated that it is in his long-term interest to do so.

The model of the perfectly organized army is, of course, only an ideal. It does not describe the reality of China, where there is not a single supreme commander—Communist Party leader Hu Jintao is more accurately described as a primus inter pares—and subordinate officials exercise considerable discretionary power simply because any leader in the real world must delegate. But that model—let me call it here the “statist model”—offers a better way of understanding how the Chinese legal system actually functions than does the “rule of law” model, which sees unlawful detentions as aberrations, mistakes, or backsliding.

In the statist model, the difference between detention according to law and detention not according to law is one of policy and convenience. If activists are “disappeared,” it is not because some fragile and immature rule of law has broken down in the face of overwhelming political pressures, but simply because the authorities have decided that the message sent by disappearing someone is preferable to the message sent by detaining them in accordance with legal procedures, or because the detention was considered too urgent to allow time for proper procedures. To call the detention “unlawful” serves certain purposes, to be sure: it clarifies that a particular policy decision is involved in the detention, and it shows the limited coverage of the sphere of “legality,” thus falsifying government claims that legality is all-encompassing. But it can obscure the way in which such detentions are quite regular and normal parts of the Chinese legal order, identified by one of Teng Biao’s earlier-quoted captors as “Communist Party territory.”

The Jasmine Crackdown less reveals than reconfirms this feature of China’s legal system. It is intended to serve the purposes of the state. It can do so in ways that are more or less efficient, and that produce more or less justice for individuals as a byproduct. It can develop and change; we can judge it by various yardsticks to be better or worse. But it is not developing toward a system that will restrain government action when it counts.

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