Chinese Law: Smoke and Mirrors

In the United States, we tend to take our problems straight to the top. It's easy to imagine a situation where the frustrated American issues the direction, "I want to speak to your supervisor." But when one sits across the table from the Chinese government, such a strategy may yield less certain results.

The Chinese government is really nothing more than a structure imposed upon Chinese society to legitimize rule by the Community Party. Theoretically, it operates with the National People's Congress [NPC] wielding the bulk of the power. From this body the Standing Committee is selected, which runs the show when the NPC is not in session (i.e. most the time.) Together, these two bodies produce the Codes that compose Chinese law. Since China followed the Continental tradition, rather than the Common Law tradition, case law is less important for future litigants than are the Codes generated by the NPC and the Standing Committee.

Under the previously mentioned faces of the legislative branch is the judiciary and the State Council, or executive branch. That annoying gap between theory and practice rears its ugly head regarding the executive branch. Theoretically, the executive branch is headed by the Premier (currently Wen Jiaboa,) while the President (currently Hu Jintao) holds a more ceremonial role. But here is an illustration of why squeeking to the apparent big cheese for grease may prove fruitless.

It is not uncommon in Chinese government, centrally, provincially, and locally, for those that are "officially" the bosses to be subordinate to their "official" employees. This occurs where the boss' rank in the Party is lower than that of his/her employee. Case in point: Wen and Hu. As discussed above, Hu holds a lower official position in government than does Wen. But Hu is not only President of the NPC and China. He also holds the influential positions of Party Chair and Chair of the Military Council. Thus, the widely held understanding of Hu as the leader of China, rather than his "official" boss, Wen.  This points to the fact that the government is merely a structural legitimation for Party rule. 

The pheonomenon is mirrored at provincial and local levels. There, too, higher "offical" status is not necessarily indicative of access to the levers of power. These are the more applicable levels of confusion for foreign bussiness people in China, provincial and local government being more accessible than Wen and Hu (unless you're Bill Gates or, maybe, Bates Gill.)

This dilemma, like that arguably facing intellectual property rights in China, illustrates the cultural transition that globalization and pragmatism are forcing upon China. Up to at least 1979, China had spent millenia in a system of rule by law, where laws were merely binding decrees made by the emporer/dictatorship. This method of governance was furthered through the Confucian tradition of hierarchical living, wherein the Emporer, husband, and father were the supreme authorities over their respective realms. Now, continued economic growth via foreign investment requires at least the impression that China is moving to a system of rule of law. Rule of law, as in many developed countries, operates to protect the people from not only each other, but from unjustified governmental meddling.

Such limitations on the rights of government in the interest of citizens, are utterly alien to the Chinese legal tradition, as demonstrated by recent arrests of prominent human rights lawyers, continued last weekend. It is this legal tradition that is central obstacle to doing business in China. As stated time and again by China Law Blog, it is not that China is deprived of laws; China is over-regulated, on the books at least. This dearth of laws, all supplied by the NPC, the Standing Committee, and their local counterparts, often presents investors and consultants with a Catch-22: do I follow this regulation, acting contrary to that one? Or vise versa? In the case of local or provincial regulations contravening central regulations, this puzzle is especially troubling. It may be impossible to get one's investment off of the ground without kow-towing to local or provincial officials. But, theoretically, central authority trumps regional regulations. So where the two conflict, a perfect world would have the central regulations be binding, and the regional ones fall by the way side. Enter the judiciary...

Unlike many countries, China does not permit judicial review of the actions of other branches of government. Thus, the Supreme People's Court has not the authority to declare executive or legislative acts unconstitutional. Also, the judiciary may not invalidate regional rules contradicting those of the central government. So in the case mentioned above, the investor is forced to either walk away from insurmountable regional laws, or violate central laws and pray to the gods that they don't care to notice in Beijing.

Without authority clearly in the hands of any given player, investment continues. And absent any remedy for those deprived of private property due to the regional/central rock-and-a-hard-spot, growth persists on the fuel of foreign currencies. Only when one begins to realize the depth of challenges facing foreign investors in China, can one truly appreciate the degree of opportunity presented by Chinese markets. We can only hope that the inescapable temptation of investing in Chinese markets does not prove like the Sirens' song. At least we can rest assured than no matter what happens, we'll all need lawyers.

Comments

[Patrick S. O'Donnell]

Perhaps you could recommend some books (or articles) on this score. I'm aware of the following as being helpful:

Lubman, Stanley B. Bird in a Cage: Legal Reform in China after Mao. Stanford, CA: Stanford University Press, 1999.

Peerenboom, Randall. China's Long March toward the Rule of Law. Cambridge, UK: Cambridge University Press, 2002.

[Christopher Cassidy]

Thanks for the resources, Patrick.

My perspective is informed by lectures of the faculty at China University of Political Science and Law, working in a Beijing firm, and generally keeping tabs on relevant current events. So while I can't reciprocate your generosity off the top of my head, I am appreciative of your ability and willingness to share.

[Patrick S. O'Donnell]

Given the WTO's contribution to international economic law, do you think that China's participation in same--along with the other forces of economic globalization--will also help China move in the direction of the rule *of* law?

Incidentally, hierarchical social organization (and patriarchy as well) pre-dates Confucius, and Confucian *philosophy* actually contributed to softening the harder edges of hierarchy even, at points, suffusing it with a more egalitarian ethos, especially insofar as empathy is said to be integral to both *shu* and *chung*. [Now Confucianism as an ideology appropriated by various ruling households and regimes, well, that's a different beast, and Confucius, no less than Marx, cannot be held accountable for the motley things people have done with this or that aspect of his teachings (insofar as we can ascertain them).] For instance, with respect to the Five Constant (or 'Great') Relationships and our various social roles in general, consider this discussion of *jen* (humaneness, benevolence, authoritative conduct, etc.):

Jen is the sum of uniquely human ethical virtues, an all-encompassing ethical if not spiritual ideal, crystallized in the practice of benevolence and compassion. Karyn Lai writes that jen, ‘in its general form…is manifest as a concern for the human condition; in its more specific instances, it is manifest as a concern for specific others.’ Ames and Rosemont define jen as ‘one’s cultivated cognitive, aesthetic, moral, and religious sensibilities as they are expressed in one’s ritualized roles and relationships.’ Jen is even expressed, in part, in ‘one’s posture, and comportment, gestures and bodily communication.’ Jen is the result of self-cultivation, an educational process that commences within the family and continues throughout one’s lifetime, for it is, in the words of Hall and Ames, ‘a process term that has no specific terminus ad quem [endpoint].’ Similarly, Kim-chong Chong notes that jen, ‘like autonomy, is…an achievement concept.’ The exemplary or authoritative person (chün tzu) is continually self-surpassing, on a perfectibilist moral and spiritual path that ends with the Sage, the ideal spiritual figure of the Golden Age that serves as a lodestar for self-cultivation. Jen, like the Platonic Good, cannot be definitively expressed in propositional language, as it is as much about ‘knowing how’ as ‘knowing that’ (a distinction that goes back to the philosopher Gilbert Ryle), and one reason we know about the presence of jen through li, the latter embodying ‘knowing how.’ Slingerland, however, accounts for the Confucian reluctance to define jen—its ‘indeterminate character’ and ‘apparent vagueness’—to ‘the problematic nature of judgments of character.’ With good reason, Socratic dialectic and dialogue demonstrated that the virtues are not wholly captured in the names, propositions and images by which we have learned to know them, however much such knowledge is integral to coming to know their true nature, a knowledge that takes the form of nonpropositional insight. Replace ‘the good’ with ‘jen’ in the following from Francisco Gonzalez and you can better see the argument here: ‘Propositions are well suited to expressing knowledge of objects or facts; they can no more express knowledge of the good, however, than they can express knowledge-how or self-knowledge, both of which are involved in knowing the good.’ Insofar as li is the codified, external expression of jen (Fingarette), li and jen are similar to the Socratic dialectic as discussed by Gonzalez in Dialectic and Dialogue: Plato’s Practice of Philosophical Inquiry (1998), perhaps one reason the scenes of Confucius and his students depicted in the Analects is reminiscent of Socrates and his interlocutors in the agora:

'[T]he use that characterizes dialectic itself instantiates what it brings us to understand, so that this understanding is always self-understanding (in the sense of a ‘knowledge of knowledge’). This is why this use presupposes an affinity between the subject and the object. One must have and thus be acquainted with virtue and the good, even though only implicitly and confusedly, in order to inquire into them. As a user’s knowledge, knowledge of virtue and the good is acquired and exhibited in the very practice of inquiry, rather than in any propositional results abstracted from that practice.'

Confucius is often asked in the Analects what he means by the word jen, which suggests he no where provides a satisfactory definition or propositional formulation that fully articulates the essence, truth or meaning of jen, however much his examples and references point to some aspects, features or qualities of jen. It is natural for his students to ask such questions, and the collective process of inquiry serves to instantiate and exhibit jen! As Ames and Rosemont state, ‘like a work of art, it is a process of disclosure rather than closure, resisting fixed definition and replication.’ The Analects suggests, to borrow from Nozick, that ‘we are to care about, accept, support, affirm, encourage, protect, guard, praise, seek, embrace, serve, be drawn toward, be attracted by, aspire toward, strive to realize, foster, express, nurture, delight in, respect, be inspired by, take joy in, resonate with, be loyal to, be dedicated to, and celebrate’ the values and virtues that make up jen. Cf. 4.1: ‘In taking up one’s residence, it is the presence of jen (authoritative persons) that is the greatest attraction. How can anyone be called wise who, in having the choice, does not seek to dwell among jen (authoritative persons).’ Chong explains that jen is approached in ‘the language of integrity, self-worth, courage, and right,’ in stark contrast with an egoistic focus on ‘material things, profit, wealth, rank, and the opinions of others.’ In processes of enculturation and socialization it is fair to say, with Kwong-loi Shun, that the ‘ideal of jen is shaped by actually existing li practices in that it is not intelligible and cannot be shown to have a validity independent of them. However, it is not totally determined by li because advocacy of the ideal allows room for departing from or revising an existing rule of li.’ Enculturation and socialization are what shape innate dispositions and tendencies or, put differently, are what awaken our awareness of and attraction toward jen (Confucius did not articulate a theory of human nature as such, although his understanding of same seems, by default, open-ended). In this sense, li might metaphorically be seen as deposits of jen, as concretized jen, which, in turn, serve to facilitate an attraction toward the value of jen. Yet jen transcends li as Shun makes clear, inasmuch as it is the former that allows for critique and modification of the latter. This transcendent quality of jen with respect to li is well explained here by Slingerland:

'Although the training through which virtues are acquired proceeds according to a general set of rules or principles, the actual decisions made by a person with fully virtuous dispositions are both more flexible and more authoritative than the rules themselves. Thus,once a practice has been mastered, in the sense that the requisite virtues have been developed, this mastery brings with it a certain independence from the rules that constitute the practice: the master is able to reflect upon the rules and may even chose to transgress or revise them if, in her best judgment, this is what is required to realize the good or goods specific to that practice. Practice mastery thus brings with it a type of transcendence: the freedom to evaluate, criticize and seek to reform the practice tradition itself.'

We all have some implicit awareness of the good or jen as a consequence of our enculturation and socialization through li practices, and further Confucian self-cultivation draws us closer to jen as the essence of our humanity. If jen is ultimately rooted in the tao (dao) of t’ien, and we owe our existence to such cosmological forces and powers, it might even be argued, Socratic-like, that individuals possess an innate knowledge of jen, however dim, and that Confucian self-cultivation and education serves to bring such knowledge into ever-greater awareness and fruition, hence we are not ‘taught’ jen in the conventional sense. This is certainly in keeping with Mencius’ later assertion that human nature is intrinsically or innately good, accounting for how one can come to recognize and appreciate the good through psychological and moral developmental processes. It is traditionally argued that there are two indispensable parts to jen: shu (‘reciprocity,’ or the negative formulation of the Golden Rule: ‘do not impose on others what you yourself do not desire’) and chung (loyalty). These concepts seem applicable to the various hierarchical roles one is involved in daily life (the argument of David S. Nivison), with the considerations of shu applicable to one in a ‘superior’ position or rank, and chung applicable to one in a ‘subordinate’ position or rank. Of course one is typically involved in roles of both types, for example, the (superior) relation of the father to the son in the family, while the father at his place of employment may have a manager or boss, in which case he is now in a subordinate relation. Empathy appears to be fundamental to both shu and chung, and of course both can be no less appropriate to roughly equal relations as well.

[Travis Hodgkins]

Patrick--

Obviously, you're interested in the teachings of Confucius; consequently, I recommend reading Ethan Leib's new book The Search For Deliberative Democracy in China. You can find the link on Prawf's Blog or visit the following url:

http://www.palgrave-usa.com/catalog/product.aspx?isbn=1403974160&printer=yes&

As one of Leib's research assistants, I had the pleasure of editing the essay written by Chen Shengyong. His essay discusses many of the issues you just mentioned in your comment.

Also, one of my favorite books is NTC's Dictionary of China's Culture Code Words. It demonstrates that the key to unlocking the Chinese culture is knowing the language, which is probably true for any culture.

--Travis

[Patrick S. O'Donnell]

Travis,

Yes, I am interested in Confucianism. Many years ago I was a teaching assistant for one of the pioneers in the philosophical rehabilitation of Confucius for contemporary philosophy: Herbert Fingarette (Confucius: The Secular as Sacred, 1972). My introductory study guide for Confucianism has received kind comments from several of the leading lights in Confucian Studies. I've sent you a copy via e-mail.

I'm aware of Ethan's book, although I did not know it dealt with Confucianism.

All good wishes,
Patrick