The Chinese Communist Party has recently accelerated its political work--moving deliberately to develop its operating theory to enhance its role as a vanguard party in China.
The Communist Party of China (CPC) will hold the fourth plenary session of the 18th central committee in October, to discuss key issues concerning the rule of law, it was announced on Tuesday.
The Political Bureau of the CPC Central Committee will discuss "governing the country according to law" on every front, it was announced after the Tuesday meeting, presided over by the CPC Central Committee's general secretary, Xi Jinping.
It was agreed that the rule of law is a must if the country will attain economic growth, clean government, culture prosperity, social justice and sound environment, and realize the strategic objective of peaceful development.
A statement after the meeting said that the rule of law is an intrinsic requirement of socialism with Chinese characteristics and crucial to modern governance. Governing according to law holds the key to the CPC's leadership, the people's well-being, deepening reform and long-term stability. The statement emphasized, that governing according to law has become more significant in the entire agenda of the Party and the nation, due to new circumstances. (Embassy of the People's Republic of China in Camnada, CPC to hold key session on rule of law, July 30, 2014)
Larry Backer and Keren Wang -- Discussion on the Rule of Law in China, August 8th, 2014 at Katz Building
Keren Wang (Keren): … so when we think about the protection of rights in the context of Chinese rule of law framework, the term “right” is understood by the Chinese more as a social contract rather than an inherent natural right. For instance, the citizen’s right to engage in religious activities would be protected as long as those activities do not disrupt public order and impair social harmony. In other words, the protection of rights in this sense is understood as the government’s responsibility to balancing the citizens’ need to ‘freely practice religions’ with need to be ‘free from religious practices’. This is where the connotations of rights are different between the Western and the Chinese rule of law. Whereas in the U.S., we treat our ‘rights’ as being ‘inherent’-- something that’s given by God and/or by nature; but in China, legal rights are understood under quite different lights….For additional readings about the sustained development of a uniquely Chinese approach to rule of law and constitutionalism, especially in connection with their relationship to law, politics and democracy.
Larry Cata Backer (LCB): Right. And you’ve seen this in some of my recent writings, right? The idea that when you look at rights--this is the Hu Angang piece--When you’re looking at rights in the West, you’re looking at it from the notion that these are conditions or expectations that are centered in the individual, and that they are meant to protect the individual and his social relations especially as against, and to constrain the aggregation of individuals and when they form everything from government to corporations to all of that, which is why CSR sounds a whole lot like public law, and why public constitutional law always looks like we are here to protect the individual and the government is a “servant” and has to be constrained in what it does and it’s got a very particular set, a bill of particulars, effectively, to do what they do. But the Chinese don’t do it that way. For them, the word, ‘the right’ is really more understood as the obligation of those people charged, and this, again, is the Confucian family notion. Those people who buy natural processes with a natural order of things are burdened with the protection and promotion of the community, and that those obligations require them to set up an apparatus. The principle purpose of which is to ensure that those people that are within their charge can benefit, can harvest the fruits of all these things, right? And therefore, in the West, the tendency has always been to look at government with a sort of suspicion. In China, the opposite has to be true-- that the expectation is not no government, but that indeed has to be more and better government, and then when things go wrong it’s the state’s fault, not because they have too much power, but because they don’t have enough or they’re not exercising it correctly.
Keren: Which means that, in China’s case, when the government can no longer satisfy the needs of the people, they would also lose their mandate of heaven to rule, right?
LCB: Think about the stories. How many stories in Asia, and I‘ve run across hundreds of them, how many stories are about the poor peasant or the middle level bureaucrat who undergoes a series of hardships to get to the emperor to let them know about an evil official, a corrupt official, the imperial hand then goes and corrects it, puts in a right official, and that produces happiness and prosperity in the community. That’s the normative base. So when you think about rights you think about it in that context. Everybody understands that the point of this is in fact the obligation of the state to provide these benefits to the individual. That’s your burden. You must do this. Not that it’s inherent in the people: it is their due, but it is their due that produces the primary obligation in the state, so that there’s more state in the state, there’s more state in the East, and less state in the West.
Keren: And when it comes to the practice of shangfang--
LCB: Yes, and that’s why shangfang makes tremendous sense in China, and is relatively incomprehensible in the West. Because you start from very different places, but ultimately you get to the same place, you get happy people whose needs are being protected in particular ways but you get it from very different perspectives.
Keren: So again, we’re going back to the government’s responsibility to fulfill and protect people’s needs.
LCB: It’s the way society understands them. However much we think in the west of our rights as individual rights, they really aren’t. They are that aggregation of individual discretion and freedom which the collective has decided ought to vest in the individual. So I can, as an individual in the West, say, “ I have an inherent right to live on East 59th St. in a 5,000 square foot penthouse. ” Ludicrous! Or, “I have an inherent right to enslave Asians.” So what are the rights? The rights are really communally derived, but they’re vested in the individual, they reside in the individual, and that sets up the relation between the individual and the state.
Keren: Well, when we say ‘communally derived individual rights’, individuals are understood as being products of society...
Backer: Right. In our sense what that does is that we then devolve this down to the individual, and that, even though it sounds small, has an extraordinarily profound effect on the way in which the West then consequentially is constrained in the way in which it can organize governments that they view as legitimate. But, for this, we could have all different kinds of government but because of -- and it’s amazing that people don’t see this, it’s so plain -- because we’ve chosen to, this is our whole way of looking at things, our whole foundation, that all of these things are in the individual, the way in which we organize the government necessarily must follow. Everything form the possibility of an aristocratic government hierarchically ordered, republican government hierarchically ordered, the notion of rights going back to the feudal period. All of these things are still with us. So you have the funny situation, the Catalonians now are demanding their freedom back. It works not only on the individual level, but it works at the middle level of aggregations. So the Catalans are asking for their freedom back -- why? Because they are looking to defend their rights, their collective rights as against a superior sovereign. That notion of the protection of rights in part serves as the functional equivalent of the obligation of the state in the East. You can’t work against it in the West, just like in the East you must fulfill your obligations to the people or you become evil, corrupt, and therefore illegitimate, or, in the West, you have exceeded your authority and therefore illegitimate, and as the Declaration of Independence will tell us, at the point you can break bonds. Or, in the East, the Mandate of Heaven is withdrawn, and because you are illegitimate and things proceed. You get sort of to the same place, but you don’t get there the same way.
Keren: Exactly. And it seems that right now there’s a general consensus in China -- at least among their top leadership --- that the institution and the legal framework has to be reflective of the changing social needs, or social productive forces. During the Deng Xiaoping era, they (the Chinese leadership) had much more uniform consensus on what the most urgent social needs were. That is, have the people well-fed, clothed, and live at a relatively comfortable standard. And given these basic material needs, they Chinese government had to prioritize industrialization and economic development over legal or rule-of-law reforms. But as the overall standard-of-living in China improved drastically over the past 40 years or so, perhaps their basic material needs have been mostly fulfilled, and new social needs have arisen, and new demands of rights and protections have emerged.
LCB: Welcome to the First World where we’re having constant existential crises. In the U.S., people become neurotic, and they spend a lot of money on psychologists. In China, they’ll have to deal with this or the people are going to become unruly. Then, the question is, what does that mean for fulfillment? And actually, you can go back in this case. It is too bad that the term is unfortunate. There’s a key already there. The Chinese would only think about it, and that’s in the Three Represents, unleashing cultural and intellectual forces. In Deng’s time, you’re worried about feeding, housing, clothing, and transportation. Now you don’t have to worry about that--at least, not in well-developed Eastern and coastal China. You’re still worrying about that in West and Central China and Manchuria. We’ll put that aside. We’re worried about our elites from Beijing down to Hong Kong. What do you do with them? They’re now all pampered, rich, and they don’t know what to do with their money. You can only buy so many cars and houses before you get bored. The Three Represents tell you exactly what the party has to do. Jiang Zemin saw it, even if he didn’t know he was seeing it. That is, you now have to unleash the intellectual and cultural power of the people in a way that is constant with the ultimate goal of unleashing your productive forces, not the brutish ones of industrialization, but now the important ones of cultural and intellectual capacity to build the state to the extent that everyone is so, so well off that you’ll actually reach socialist modernization and the communist ideal can be met. That’s the problem, because everyone is still worrying about, “Oh, we have to give everyone a job.” It’s this part that is now more difficult. They know what they have to do. They’ve got the ideological framework to do it, and now the question is, how do you want to operationalize it? In what way can you safely do it? What scares them to death (and what really should, which is why I’ve been an advocate of the Party’s work), this is the part where the Party has to “man up.” This is why they’re the vanguard party. You can’t be the vanguard party and think it’s easy. Life is hard, and that’s why you’re the vanguard party. Now you’ve got to think about how you can manage that, so that it provides, contributes to, that central notion of rights understood as obligations. All of those things -- the unleashing of cultural power, the unleashing of intellectual power -- ought to be focused on the improvement of all of the people, so that as a whole you contributed to the welfare and the wealth of the country, not merely because now you’re eating better, but now because you’re thinking and living better. And that’s where the party needs to hold all of this together in a disciplined way. They have to be at the forefront and provide the structure. That requires two things: One is the ability to handle people’s complaints against bad officials. At some point, the people who reach this level are going to be very jealous of the protection of what they view of the obligations of the state. If you don’t find a way to allow those people to complain about bad officials, you’re going to be doomed. What the Chinese still haven’t done is to separate, which is our project, to insure that that can be done, focusing solely on the state apparatus and then leaving the politics and the political apparatus of policy analysis off into the party, if you’re really exercised about that you can join the party, but otherwise we’ll give you a mechanism, if you’ve got the corrupt official, we’re here to help you. The second is to provide social goals that you can target, cultural and intellectual activities -- not that you’re controlling it at a micro level, but that you’re suggesting, ‘this is what we need, this is how we grow.’ Arts, or whatever, in a way that is commensurate with their social development...
Keren: Which means that the government need to focus not only on meeting economic development goals, but also on social and cultural goals.
LCB: Yes. Then, this is the hardest part for the vanguard party: the time for laziness is over. The hardest thing for the party now, if they really are going to survive the 21st century and be a vanguard force, and you saw a hint of this in the Cuba paper, I had to slap the Cubans, it was very true. They’re going to have to become a much, much more proactive vanguard party if they’re going to hold all the political strings. They have higher and much more burdensome obligations. They are going to have to make sure that their cadres and organization is up to the task, which means that they are really going to have to embrace the development all the way down to bottom level cadres. They’re going to have to develop them to their full potential intellectually and culturally. That’s an intraparty obligation that they have been fairly sloppy, I understand why, there’s a million excuses for their sloppiness, but the time for that is over. If they don’t do this, they will be irrelevant in 20 years. If they do this, they can set up a system that frankly, outside of Europe, will be extraordinarily influential, because it meets the cultural requirements of a whole lot of places for which Western style democracy just doesn’t seem to take hold. They won’t mean to be influential, but if they’re successful, they can be. But they’ve got to do it right, and that requires some effort. The principle thought about that is to stop being embarrassed about being a vanguard party. It’s almost like people are embarrassed. They push “not-Maoist” style, but the less you are proud of and affirmatively embrace your system, the more people begin to think that there’s something wrong with it. That doesn’t mean that you are mindless about it, but it does mean that you’re relatively proud. The thing about Americans is that we’re proud of our republic. We complain about everything, but at the bottom, we’re all taught to be very proud of this system that we have that if we can get it to work right, it will lead us to our own version of utopian constitutional society. The Chinese have not done that, and part of the reason I can understand -- because Mao’s Cultural Revolution did such a hideous job of bringing that kind of party work into disrepute that everyone is very leery. You know what’s going to happen the minute you start doing this. The South China Post is going to come out, “New Generation of Maoists: Are We Going to Be Singing Hail Mao Songs on the Street Again?” That would be just crazy! It’s not that kind of thing. That’s the point of the intellectual and cultural thing. It’s much more sophisticated, and much more basic. Simple and non-threatening: not, “I’m going to order you around,” but, “This is our system, look what we’ve been able to do.” This is how it works. If you can’t get the average Chinese guy more or less to tell you how things work, then you’ve got a problem.
Keren: And even the villagers, the way they understand their relationship with the government and authority has transformed dramatically over the last few decades. That’s part of the reason why we are seeing the rise of shangfang. Many of these shangfang petition cases -- if not the vast majority of them -- involve either some disgruntled folk not being happy with the court’s ruling, or a property dispute with the local government. For example the local government wants to build a road, and the villagers are not happy with the compensation or don’t want to give up their farmland. Backer when China was a much poorer country, you hardly hear any eminent domain complaints -- they’d just take whatever the government offers. Not necessarily because of government coercion, but more due to the fact that those villagers didn’t own much to begin with. Everyone was so poor, and everyone could easily benefit from that massive infrastructure development projects. When development policies improve the living conditions of everyone -- even if some would benefit far more than others -- it’s pretty easy to govern and maintain social harmony without paying much attention to the rule of law. In fact a ‘highly developed’ Western rule of law system may even hinder the economic growth of an under-developed country like China right after Mao. But as Chinese society-- both urban and rural areas-- gets wealthier and wealthier, the average citizens have more and more to lose from government misconducts, and the Chinese government can no longer afford to ignore institution building any more.
LCB: But this is great step towards a stable state. With a vanguard party, this is marvelous. The party shouldn’t be afraid of this. They should embrace it and own it, because it’s a natural progression, and if the party can situate itself to be the heroes here. They insure that the officials up and down listen appropriately. Sometimes that means you don’t win. Sometimes it means that lower-level officials are disciplined. You’re going to have a lot more buy-in. And if you can’t teach your own cadres to explain the system, and then teach your students about this, civics education, honest, here it is and unashamed, you’re fucked. You’re done. You’re screwed. The Chinese aren’t doing it, and I don’t blame them. They’re not unique. The Americans have stopped doing it over the last 25 years, to our discredit.
Keren: Their civic education talks a lot about the political, but not about rule of law. Actually, there’s no civic education. From middle school, it’s just called “Politics.”
LCB: If you don’t do mass education and socialization, then the whole thing about harmonious society is wasted. You really need to do it. And not in a stupid, mindless, propaganda way-- but given the rise in the level and capacity of the population, in a way that is suitable to the abilities of your population.
Keren: Specifically then, with regard to the rule of law, after the social progress from the basic need for economic development to the needs of social justice, cultural fulfillment and political participation, obviously that calls for a more updated approach to rule of law. Now, when people are well-fed and clothed and even have a little bit extra to keep for themselves…
LCB ...They need to be able to engage with their administrative apparatus! If they are now so well educated and so involved that they want to be involved in politics, they can also do that too: join the party. And the party then has to continue to do its work in intra-party democracy and et cetera.
Keren: So everyone can participate and engage in the administrative domain, but you still need to join the party if you want to become a politician...
LCB: Yes. And if the party has to be very clear about that separation, then they come in and become the heroes. It’s true that a lot of the members of administration are party members as well, but that’s perfect too, because the double threat of shuanggui and corruption or discipline for failure to do their administrative work ought to help discipline officials who have a heavy burden, and it’s a burden that should not be made lighter, merely because they are now in an exalted position. And indeed, the reverse is true. The higher you are, the heavier you should be feeling about the burden of the responsibility you have. And you ought to act appropriately.
Keren: So basically allow more formalized channels for the people to respond to and petition against administrative actions like land seizure
LCB: Right. And the process will be protected by the party. If the party administers this, and if it’s viewed to be administered fairly, the party wins, because they become the protectors.
Keren: ...because they protect the people from abusive administrative actions.
LCB: Also, in a way, that gives people a buy-in into the party because if then they help the party here by denouncing corrupt or unethical officials, then the party here can do a better job of making sure its cadres are sufficiently disciplined both as cadres and in their roles in the administration.
Keren: So instead of focusing on directly administering economic development, where the party basically sets a hard target for economic growth, and directs the local governments to build a dam, to pave a highway and so on, the party should play a different role where it focuses on the protection of the people and the enforcement of the rule of law. Rather than letting the local governments do just basically anything it takes to bring the GDP up to the target, the party ought to balance the relationship between the people and local governments, and to protect people from abusive administrative actions.
LCB: You’re still doing the same thing. The analysis becomes more sophisticated, that’s all. There are more factors that have to be weighed and balanced. You’re upfront about it, you’re upfront about the balancing, and the more you do that, even if people disagree with your balancing, as long as you appear to be fair and open, you’re fine.
Keren: I remember, back in the old days, even when I was a little kid in the early 1990s, when local governments would demolish large parts of the cities people loved it, because that meant new roads and new homes. They don’t want to live in shanty town sheds -- they didn’t have much to worry about.
LCB: But notice what happens. Yes, we get rid of it, but the state will protect me. It’s that second part that becomes critical. So you’re going to build a dam, and you have to get rid of a village? OK, you say, we need to do make this progress, but we hear you, but you’re going to wind up much better than you were. We’re not going to destroy anything. if you’ve got ancestral sites, we’ll help you move them. A little more expensive, but you’re richer now. So you can do this.
Keren. Right, and back in the day, when the local governments engaged in this kinds of brusque administrative activities, they didn’t get a lot of complaints from the people, primarily because the entire society--in varying degrees--benefitted from the government’s actions. The folks on the ground were still traumatized by the harsh material conditions during the Mao era, and they were very forgiving of the government behaviors as long as their living condition keeps improving. But now--and you see this especially in major Chinese cities -- that they’re pretty well-developed, and the people start to have other things to worry about in addition to their basic material well-being. When the city wants to do something big, say demolishing old city blocs, even if it benefits the majority of its residents, there will be conflict of interests involved. Administrative actions can no longer easily benefit everyone, since the society is no longer dirt-poor and everyone has something to lose, and it becomes harder to use old logic to govern.
LCB: Welcome to the world of the West! You’re going to wind up having to compensate. But that’s fine. You can do that in a lot of ways, and you can be very flexible. What people don’t want to hear, and this is, even there people will grouse, but they’ll buy into it -- where they don’t want to buy in, is when you want to build a new freeway extension in Shanghai, and then it turns out that you dispossess the old lady, right, and you pay her 10 Yuan, but then when you sell it to the state, you sell it for 100. It’s that kind of corruption. It’s the corruption and then the appearance of a benefit, personal benefit to the official who’s got the burden. And that’s really the problem. The problem in the West is that it becomes impossible to do anything because the government is so constrained. The problem in the East is that once you have that administrative burden, if you appear at all to be personally profiting from the exercise of your obligations, then all bets are off. That’s the part that becomes difficult.
Keren: Basically, the key, then, to developing rule of law in China is to institutionalize the shangfang practice. The shangfang mechanism in itself can be seen as a manifestation of the socialist principle in the sense that when new social needs emerge from changing material conditions, even if the government doesn’t formally establish any new institutions, informal structures like shangfang will inevitably form to accommodate these new needs. The widespread of shangfang means that it already became a quasi-formal structure waiting for official anointment.
LCB: And it is not only socialist rule of law, it is deeply embedded in Chinese Marxism. Recall Deng Xiaoping’s notion that the party that fails to listen to the people both loses its perspective and is not practicing socialism appropriately. To listen doesn’t mean that you will bend to whatever you hear, but you’ve got to hear the people out. The minute the party becomes afraid of the people, it’s over.
Keren: So how exactly should China institutionalize this shangfang practice, then?
LCB: That’s the trick.
Keren: It brings to mind the popular news stories of the village folks, they ride a bus together to the capital, and complain to the central government because it is still presupposed that the central government is legitimate, and that it will protect them from the misconducts of local governments. And because the central government knows that assumption too, they have to listen and handle the petition once it gets to their doorstep.
LCB: But there are a lot of ways of doing it. If everyone knows you’ve got to go to the capital when you think you have a problem with the locality, that’s OK, but you can still set up a system where, instead of having to handle it yourself, you can then use that mechanism to send it back somewhere appropriate. Not to the people that the local complaining people fear, but somewhere else. Think about how they do shuanggui. When you are shuanggui’d up, you’re going up a different parallel. So maybe what you need to do is, when you have a complaint in one province or one city, and then the complaint ought to be exercised by the complaint-hearing person in a different city.
Keren: So the U.S. handled this problem by setting up separate a judicial branch, how would the Chinese approach this, without copying the American style judicial independence?
LCB: You don’t necessarily need to set up a different branch. There are all kinds of ways of autonomy...
Keren: ...but some degree of differentiation is required in order to avoid conflict of interest, since the reason that the shangfang people go all the way to Beijing in the first place is because are cynical about the fairness of the local judicial organ, being controlled by the local government.
LCB: Right, and if the shangfang deals with the misconduct a local official, do what they did do with shanggui--move it to the next county over. For example, requiring the petition to be heard in different city...
Keren: And what about the separation between party and administrative organs? The fact that the shangfang petitions are going out their way coming to see the central authority, basically the central executive committee (dang zhongyang / 党中央), this implies that the party is seen structurally separate from the government, especially in terms of the political-economic relations between the party, the local government, and the people. So how can we ensure to preserve that degree of separation while ensuring accessibility for people to lodge their complaint without forming an additional judicial branch?
LCB: You’re going to have to figure out a way of slotting hearings of shangfang… I guess one of the other ways you can do it is use graded filing system similar to shuanggui.
Keren: In the U.S., the judicial branch handles a wide range of complaints--whether your complaint is about a murder, a government action, or a divorce, they all go to the same court system.
LCB: and the court is supposed to be autonomous and not connected.
Keren: That’s why the American court is capable of handling, for example, a person suing the state of Pennsylvania.
LCB: So you’ve got to find a person who is not connected. In China, to do that, without creating a new apparatus, you’d have to physically, since all lines are like this, you’d have to move it from this line to this line and so on.
Keren. Can’t they specifically delegate the judicial organ, which is part of the administrative apparatus, to handle the criminal and civil matters that don’t pertain to administrative actions. And for complaints dealing with the actions of the government, they can file petitions to a separate organ that’s designed to specifically handle shangfang petitions.
LCB: You mean, have the courts become shangfang entities as well?
Keren: No. The local courts don’t handle any of the shangfang, but handle the normal traffic law violations, divorce, to murder, anything that does not involve conflict of interests with the local government. But when the complaint is about local government officials or administrations, that creates a separate category, and they need to create a organ that’s separate from the judicial organ and not under the influence of local government to handle this kind of complaint.
LCB: Look at France, the industry and court system of France. You’re not going to want to do it the way the French do it exactly, but they have parallel system. And you don’t have to make it judicial, you could make it hearing officers who, all they do is deal with administrative complaints.
Keren: An administrative complaint organ, separate from the administrative government apparatus, and separate from the judicial organ which part of the local administration. This would resolve the contradiction without entirely change the existing Chinese judicial system.
LCB: And that may be a facility that is best placed in the party. And then you go to my old article that I wrote about the constitutional court of China based on moving the functions… so you have an administrative system.
Keren: And that system will be directly controlled by the party, but not considered a part of the administrative organ.
LCB: That makes a lot of sense because if there is a problem, the party is going to need to be able to shuanggui. You are effectively disciplining the state organ, and the only body that is fit to discipline state organs is the party.
Keren: This actually promotes the rule of law and social harmony, and offers the protection of people against administrative abuses without undermining leadership of the CCP.
LCB: ...and reinforces the state-party system in China, thus the rule of law under the Chinese socialist system.
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