China at rule-of-law turning point

2015-02-18 16:05SINOGRAPH

Establishing the rule of law is one of the pillars of Chinese President Xi Jinping's reform program and surely one of the most important, for without confidence in the legal system many other things will go wrong. The new emphasis on the rule of law implies a deep cultural shift, from traditional reference points of clan and emperor to the Western concept of a public entity. China cannot go back from there. - Francesco Sisci

Establishing the rule of law is one of the pillars of Chinese President Xi Jinping's reform program, and surely one of the most important, for without confidence in the legal system, many other things will go wrong. Private capital markets depend on the rule of law, but the problem goes deeper: if ordinary citizens do not believe in the fairness of the legal system, they will feel less like citizens and more like imperial subjects. Social cohesion depends on the rule of law.

For China, the rule of law is a modern concept and to a great extent a Western import. In the Western model, the efficacy of law requires a sense of responsibility towards the state on the part of ordinary citizens. It is not simply a matter of the state providing justice from the top down, but rather a complex of mutual obligations between state and citizens.

Precisely this sense of responsibility for the state is difficult to identify in traditional Chinese culture. The obligations of traditional China were compelling: the Chinese had a strong sense of duty to family, to friends, to the emperor, to the boss. The modern concept of "state" itself is an innovation for the Chinese. The standard Chinese translation of "state," namely guojia, does not capture the meaning of a term derived from the verb "to be." Instead, the term guojia derives from the words for families/clans (jia) and walled territory (guo).[1]

The new Chinese emphasis on the rule of law (yi fa zhi guo) implies a deep cultural shift, from the traditional reference points of clan and emperor to the Western concept of a public entity (res publica), or public state of being (state), with its attendant rights and duties and civic responsibilities. In Western history, civil responsibility is the other side of the coin of civil rights. This notion of civic responsibility is critical to China's future success, and challenges the way Chinese have thought of society for millennia.

In the mainland Chinese view, the law is a formality and often a hindrance: doing things according to the law is inefficient, slow, and uncertain in its outcome. The law is something to be circumvented through power relationships that cut through hindrances. Yet the Chinese look to other societies where the rule of law prevails as exemplars of what they hope China might become.

Survey data suggest that the "Chinese dream" for many Chinese is to live in a land like America, that is, a country where citizenship is filled out with rights and responsibilities. By contrast, many Chinese have no sense of belonging with respect to China's state. They have a strong sense of Chinese identity, to be sure, and strong roots in Chinese culture, but their attachment to the Chinese state is marginal.

China for many is an opportunity to make their fortune. But apart from a strong sense of a common culture and the opportunity to build wealth, they have little affection for, or a sense of protection from the Chinese state or its laws. In China there is a perception often that power without impartial laws and without responsibilities is capricious.

On the other hand, a population accustomed for centuries to the unrestrained exercise of imperial power will have little sense of responsibility or duty towards the common good of the country represented by the institutions of the state. There is no fabric of civic rights and responsibilities which delimit the action of the state, so that the risk always remains present that the state can run amok with the exercise of naked power.

Without a popular sense of civic responsibility, the state must use unlimited power to restrict the unrestrained power of individuals to act in ways harmful to others (for example through corruption). But the same unlimited exercise of state power suffocates the lives of ordinary people, who respond by undermining it or running away from it. That is the vicious circle of state power that the "rule of law" reform proposes to break. But perhaps to have a glimpse of the complexity of this issue we have to take a big step back into Western tradition, and the Chinese ancient culture.

In China's reading of Western history, rule of law derives from Roman law; one may differ with this view, but it provides a clear basis for contrast with China. The study of Roman law has been central to China's reform efforts since the 1980s. The specific mix of rights and responsibilities is expressed in the relationship between the Roman state and the pater familias ("father of the family" or "owner of the family estate/assets"), the model Roman citizen.

The pater familias had a series of rights related to the members of his family and the state, but he also had a series of obligations toward his family members and the state. From that came the modern conception of a citizenry with rights and responsibilities, a word that comes from "response": in response to one's rights, one has to do something. The pater familias with his rights and responsibilities made up the basic building-block of the res publica, the public/common thing, the name of the Roman state, where its ancient citizens shared a sense of equality, were all the same before the law as they were all the same in the battlefield arrayed in the ancient phalanx.

The principle survives even today: you do something you are required to as a citizen and thus you are entitled to your rights. Rights do not come gratis; they are a kind of "compensation" for performing your responsibilities, obligations, and duties. However, once you perform your duties you are entitled to your rights, and if you do not get them there is a kind of "breach of contract," and you are entitled to protest and claim your due.

Roman laws were conceived around these principles, that is, regulating rights and duties. Moreover, laws were conceived in Rome as derived from the customs of the older/better people (mores maiorum), possibly against the challenges to those customs posed by the new additions to the res publica, the plebeians and their allies (socies), a growing part of the Roman state. Leges (laws) derives from the word legare, to bind the res publica together with a form of equality before the law, in keeping with the understanding of the state as a "public thing."

In classical China, there were no citizens. Everything started from the concept of state (guo or bang), which at the beginning was a walled city, later extended to a walled-in territory, managed in a very strict manner to maximize social and political order, tax revenues, and military service. The unified empire of Qin Shi Huangdi, the first emperor, started with the annihilation of all other competing states and the superimposition on their former territories and people all the norms and standards of the Qin state (guo). Conquered people and territories were managed according to Qin's principles.

Within the state there were the emperor, his officials (senior or minor), and the common people, small and large farmers and the like. Notably, nothing was fixed. Through a system of exams or merit-based selection, common people could be elevated to higher positions and become officials. Moreover, periodic revolutions and invasions would topple emperors and their aristocracy, which would routinely change the top ruling class, bring social mobility, and grant stability for a few years or centuries.

But in this system, no-one had rights and responsibilities. Subjects were to do what they were ordered to do; they might hope to be rewarded in some way for obedience. Or if they were not satisfied, they could try to stage a revolution and hope to be successful and become emperors or imperial aristocracy. If they didn't obey the orders or failed to succeed in a revolution, they would face stark punishments.

Laws were in substance simple punishments - xing (penal law) is cognate with xing (shape), i.e. reshaping a person with mutilation (cutting the nose or ears) or tattoos - and rules for administration of the state. Therefore, since Confucius' time, punishments were for common people (xiao ren); the people above, gentlemen (junzi), were dealt with according to codes of courtesy (li). The word law (fa) in Chinese originates from the concept of standard for measurement: Qin's original standards and norms applied to all conquered people and territories, used together with "punishments" (xing). These were ways to enforce a norm, but included nothing that binds people together with some form of equality.

That is, there was no principle of responsibility in classical China, as there was no idea of rights, much less a structural link between responsibilities and rights.

The idea of rights and equality before an authority came to China in the early 20th century. Communist Party doctrine spoke of the rights of workers and peasants; after this came the broader (Western) idea of human rights. However, rights were structurally de-linked from responsibilities. The words rights (quanli) and responsibilities (zeren) do not have the meaningful linguistic link we find in their Latin counterparts.

In fact, despite the official use of of the concept of rights in modern China, we have a situation something like that of ancient China: there are two classes of people, one above the law and one below the law. Those above the law can negotiate the law and the law can be bent for them; the ones below the law are at the mercy of the ultimate law enforcer - not unlike the xing and li for the xiao ren and junzi of ancient times.

This creates two problems. The first is a contradiction between the social practice of these two layers of the population on one hand, and the official rhetoric claiming equality, and thus only one class of people (no xiao ren and junzi) with equal rights. The second problem, as noted, is that rights have no link to responsibilities.This decoupling, to be sure, has advantages for totalitarian states.

The link between rights and duties means that common people must obtain what is theirs if they perform their duties. If rights are given without a request for duties, then they can become privileges to be granted or denied based on the whims of power. Power has no duty to grant the duties it promises.

It was the communists who broke with China's traditional conception of the Chinese state and society, by promulgating the concept of rights for workers and peasants, according to Marxists tenets. Their vigorous campaign for such rights helped the communists gained popularity, and contributed to their victory in the Civil War against the Nationalists. Without the complementary idea of civic duties, however, the concept of rights introduced by the Communists remained a foreign Western import. The result was a perverse form of social contract, in which the people have rights but no responsibilities, and the state in consequence retains the old, arbitrary power of the imperial system.

Until the late 1980s, if for whatever reason I were unhappy with my office or how I was treated, I could fake all kinds of sickness and refuse to go to work. As long as I did not directly fight the state, the state did not bother about me. This led to immense inefficiencies that were addressed by "bribing" people, that is, giving them monetary rewards to perform what would otherwise, in a duty-rights system, be simply their duties.

This is no longer the case on such a large scale, but the problem is still there. Money is still the main motivator for actions in China, not responsibility towards one's job or the public welfare.

This also creates a situation where no law is paramount, and the law does not give a sense of protection to the people "below the law," who also have no sense of responsibility. Common people do not feel they belong to a "public entity," and the state largely has no obligation to common people. The absence of responsibility works two ways: common people have no sense of duty to the res publica, and the res publica is not common/public at all - in fact, it is the res, the thing of a few privileged people.

Again, this clash of old and modern state principles creates a number of problems. Common people have no sense of identification with the state that issues the laws, which are not yet laws of a res publica, but no longer the xing or li of ancient times.

To create such a sense of national responsibility would change the dynamic of power and the sense of the state in China.

People would be responsible to the state, and the state would be responsible to the people. That is the key to the "Chinese dream," which in crucial respects is not much different than the American dream. A deep implication is that this expression of the rule of law would structurally limit power, a crucial problem for present China. That is: the introduction of the conception of a sense of responsibility de facto would limit the concept of total power of the present Chinese State.

The trouble is that if power is without limit, in order to challenge this boundless power, one might not work for small changes but rather for total revolution - which is in fact the logic of past revolutions in Chinese history. On the other hand, to limit power with laws creates a broader base for state power, because it gives people hope that changes can occur, and that one can hope for the protection of the law from the errors committed by the state itself. Then the state becomes stronger.

This may explain why the Roman state, for all its deviations and occasional degeneration, persisted in one form or another for over 2000 years, from the fouding of the Republic in the 6th century BC to the fall of Constantinople in 1453. Chinese dynasties, with their absolute power, lasted at most two or three hundred years.

It goes without saying that flourishing capital markets and a hospitable environment for Chinese investment overseas as well as foreign investment in China require the rule of law. Corporations as well as individuals need clarity about their rights and responsibilities with respect to the state.

The sanctity of contracts and the freedom of decisions to deploy capital also impose de facto limits on arbitrary intervention by the state in economic life - which is a necessary condition for freedom in any part of life. Corporations have rights (to be heard by fair courts and enjoy the protection of the law) as well as responsibilities (payment of taxes, honest dealings, and fair treatment of employees).

China, as I indicated earlier, made the leap away from the traditional Chinese conception of the state and its laws into the modern world at the time of the Communist revolution. Although communism may be a distorted expression of Western legal concepts, it nonetheless put China on the other side of a great divide between the traditional Chinese world and the Western system. China cannot go back from there: its economy cannot flourish without reforms, and all the reforms ultimately stand or fail on the rule of law.

1. The following article was first suggested by talk with Mu Chen. However, in the course of the years I have talked about the subject with many people but particularly with Mr Huang Feng, Mr Xu Guodong and Ms Fei Anling. To all of them I am grateful. All mistakes are in any case mine.

Francesco Sisci is a Senior Researcher associated with the Center for European Studies at the People's University in Beijing. The opinions expressed are his own and do not represent in any way those of the Center.


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