May 26th, 2011
Author: Donald C. Clarke, George Washington University Law School
When the Chinese authorities detained human rights lawyer Teng Biao last year, they had little patience with his legal objections.
‘Don’t talk so much about the law with me. Do you know where we are? We are on Communist Party territory!’ they told him. ‘You belong to the enemy! … In that case, we don’t have to talk about legal constraints at all!’
And just in case anyone wasn’t getting the message about the role of law in the system, last month a spokeswoman from the Ministry of Foreign Affairs, Jiang Yu, warned journalists not to imagine they could‘use the law as a shield.’
As the authorities have made clear, political power in modern China is not and will not be constrained by law.
Since late February, there has been a wave of detentions and disappearances of lawyers, activists and others in China. Especially alarming to many is the government’s apparent disdain for even the modest requirements of its own laws. While some have been detained or arrested in accordance with procedures required under Chinese law, others have simply been picked up by security officials and disappeared. These detentions reflect a deep truth about the system that observers are often tempted to overlook: that China’s legal system has never been about the rule of law. It has been and remains about making government function more effectively.
Other views are of course possible. The ‘Disappointed Optimist,’ for example, sees China, despite repeated setbacks — the Cultural Revolution, the June 4th 1989 Massacre — as on a long-term track toward a recognisable form of rule of law. But In this view, the current crackdown means that China has reneged on its commitment to the rule of law and is moving backwards.
Then there is the ‘Realist Separationist.’ He holds that the system can be divided into two parts: the politically sensitive sphere, where restraints on government are admittedly gauzy at best, and a second sphere of non-sensitive areas such as commercial law, where the legal system has been advancing in great strides.
And then there is the ‘I-Told-You-So Cynic’, for whom any talk about the rule of law has always been a sham.
While different, all of these viewpoints have one thing in common: they start from a rule-of-law perspective. But the current crackdown is better understood by jettisoning that concept entirely. Let us stop asking whether and how far China is travelling along the road to the rule of law, understood here to mean a system of meaningful legal restraints on the powers of government. The reality is that this has never been the ambition of the current Chinese legal system.
But what about the Realist Separationist’s argument that there is real progress toward the rule of law in at least some areas? How should we understand the improved educational level of judges, the rising number of case reports posted on line, the increasing sophistication of legislation? Is the I-Told-You-So Cynic right in saying it all means nothing?
The developments are real and do mean something. But they are not developments in the direction of the rule of law, however much they may look the same. China’s legal system is about the effective functioning of government; so when the system changes it does so to help government function better. This does not mean it cannot also develop to better accommodate issues arising between citizens that have little connection to the government — but it does that on the side. The fundamental characteristics of the system stem from its statist orientation.
Moreover, the alleged distinction between what is politically sensitive and what is not continues to break down precisely when it matters. A simple tort case last year, for example (where a drunken driver killed a college student), became intensely sensitive, with the media instructed on how to report it, simply because the driver was the son of a locally powerful official.
In China, 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. It is 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.
The Jasmine Crackdown less reveals than reconfirms that China’s legal system is intended to serve the purposes of the state. It can do so in ways that are more or less effective, and that produce more or less justice for individuals as a byproduct. It can develop, change and be judged by various yardsticks to be better or worse. But there was never any genuine governmental commitment to the rule of law from which the government later backtracked. China’s legal system is not developing toward a system that will restrain political power when it counts.
Donald C. Clarke is a professor of law, specialising in Chinese law, at George Washington University.