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1. INTRODUCTION: WHY CHINA?

1. Mark Leonard, excerpts from What does China Think?, pp. 60-63, 71-75, 79-81, 115- 118
2. Carl Minzner, China After the Reform Era, Journal of Democracy, vol. 26, July 2015, pp.
129-143
3. Tang et. al., Chinas Rule by Law Takes an Ugly Turn, Foreign Policy, July 14, 2015
4. Jacques deLisle, The Rule of Law with Xi-Era Characteristics: Law for Economic
Reform, Anticorruption, and Illiberal Politics, Asia Policy, number 20 (July 2015)
5. Tom Mitchell, China ensures Zhou Yongkang trial sticks to the script, Financial Times,
June 12, 2015
6. Orville Schell and John Delury, A Rising China Needs a New National Story, Wall Street
Journal, July 12, 2013
7. CCP Central Committee Decision Concerning Some Major Questions in Comprehensively
Moving Governing the Country According to the Law Forward (part 1)
8. David Shambaugh, The Coming Chinese Crackup, Wall Street Journal, March 6, 2015
9. Is China Really Cracking Up?: A Chinafile Conversation, Chinafile, March 11, 2015
10. Hu Angang , Embracing China's New Normal Why the Economy Is Still on Track,,
Foreign Affairs, May/June 2015
11. Everything Xi Wants The Economist, July 4, 2015
12. Daniel Kliman, Is Chinas the Fastest Rising Power in History? Foreign Policy, May 16,
2014
13. Optional: Benjamin L. Liebman, Chinas Law Stability Paradox (Daedalus April 2014)

Law and Legal Institutions in China Fall 2015


Notes on Class 1 Readings -- Introduction
The readings for our first class are intended to provide a brief introduction to central challenges China
faces today, to recent political developments, and to some of the important current debates on and issues
in the legal system. These readings are of course not comprehensive. The goal is to give you a flavor of
some of the issues we will be discussing over the course of the semester, and in particular current debates
in China about the trajectory of legal reform. I realize that there are a lot of readings for the first class,
but many are media accounts that can be read quickly. Please try to read as much as you can for our first
session.
I will begin our first session with an overview of the course and of the current state of legal reform in
China. We will then move on to a general discussion of the materials assigned for today. Please come to
class prepared to discuss why you think we should study Chinese law (after all, at Columbia we offer
courses on only a very small number of foreign legal systems)? What do we already know about Chinese
law, and what should we aim to learn in the course of this semester? As you read, please also consider
what seem to be primary challenges facing the Chinese economy and Chinese society today? What
appear to be the primary challenges facing the legal system? To what degree are these challenges unique
to China? Are there parallels, either today or historically, in legal systems with which you are familiar?
Do the problems described in the readings appear to stem from Chinas political system? From its history?
Note also that some of the readings make reference to Chinas pursuit of social stability. What does
this term mean in the context of China? Is the Chinese state unusual in its pursuit (some would say
obsession) with social stability?
The Leonard excerpt introduces some key intellectual arguments regarding the Chinese political and legal
systems made by academics within China. The Minzner article is a (controversial) recent analysis of
recent trends in governance in China. The ChinaFile discussion on rule of law presents short comments
from a range of academics following the arrests of numerous lawyers in China this summer. DeLisle is
another recent analysis of trends in legal evolution in China.
The article on the Zhou Yongkang trial draws a contrast between that trial and the trial of Bo Xilai two
years ago. The two trials are the most prominent trials of Chinese leaders in more than thirty years. The
Schell and Delury reading provides an interesting and influential argument regarding Chinas status as a
rising power.
Item 7 is the introduction to the Decision of the Communist Partys Central Committee following its
Fourth Plenum meeting last year. The document is widely regarded as the most important document on
legal reform issued in China in decades. We will return to examine the decision in more detail later in the
semester at this stage our goal is to get a sense of what issues and principles Chinas leadership see as
crucial in legal reform.
The Shambaugh article is another highly influential recent take on political and economic
developments in China. As the ChinaFile comments that follow suggest, Shambaughs analysis is
controversial. I have also included an essay on economic development by Hu Angang, one of Chinas
most prominent economists, and an interesting analysis from Foreign Policy comparing Chinas rise to
that of other major powers historically.
My essay from Daedalus provides an introduction to many of the themes we will discuss this semester.
But the readings are getting a bit long at this stage, so you should treat it as optional. It may be useful to
read at some point in the first month of the course.

Journal of Democracy, Volume 26, Number 3, July 2015, pp. 129-143

China After the Reform Era


Carl Minzner

Carl Minzner is a professor at Fordham Law School who specializes in


Chinese law and governance. His essay China at the Tipping Point:
The Turn Against Legal Reform appeared in the January 2013 issue of
the Journal of Democracy.

In an era of democratic decline, authoritarian rule is receiving a careful

new look. Their fingers having been burned in Iraq and Afghanistan,
U.S. policy makers have backed away from the democracy-promotion
agenda identified with prior administrations. Authoritarian regimes in
Cuba, Iran, and Burma were once scorned by Washington elites. Now
these regimes are targets of cautious diplomatic outreach.
A new tone has entered academia as well. During the 1990s, experts
spoke confidently about a third wave of democratization. Now they
characterize the decade since 2005 as one of democratic recession
and authoritarian resurgence. 1 Even Francis Fukuyama has altered
course. Struck by a plethora of unsuccessful democratic transitions
in Russia, Africa, and the Middle Easthe now cautions readers to
focus less on the high-minded goal of building liberal democracy, and
more on constructing the basic machinery of rule by an efficient state. 2
Given this, one can understand why China might seem attractive today.
Compared with the steadily escalating turmoil in the Middle East and the
slow-moving train wreck of Russia and Ukraine, China appears a relative
haven. There is no revolution and no civil war. For roughly three decades,
economic growth averaged 10 percent a year. On the surface, China seems
the very incarnation of the efficient state machine that Fukuyama calls for.
But a closer look at the four decades of Chinas reform era reveals a different truth. Chinas heady accomplishments have been grounded in a set of
norms and policiespolitical, economic, and ideologicaladopted in the
last quarter of the twentieth century. These are now unraveling.
Since 1989, Beijing has firmly adhered to one core principle: Uphold
the rule of the Chinese Communist Party (CCP) at all costs. Naturally,
Journal of Democracy Volume 26, Number 3 July 2015
2015 National Endowment for Democracy and Johns Hopkins University Press

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this has led Chinese leaders to take political liberalization off the table.
But it has also led them to undermine the very governance reforms that
have been key to the resilience shown by Chinas authoritarian regime.
Put simply, in their drive to retain political power, CCP leaders have
eroded the late-twentieth-century bedrock on which Chinas success has
been built. Rather than serving as the poster child for successful authoritarian governance, China is actually an example of the perils of failing
to undertake political reform.

The Birth of Reform, 197889


In the late 1970s, few would have deemed China a successful authoritarian model. It was unstable, isolated, and poor. Socialist planning
had rendered it an economic basket case, with a per capita income lower
than that of Afghanistan, India, or Zaire. Decades of political radicalism
under Mao Zedong had left China in disarray. Maos preference for ruling
as supreme leader (the great helmsman) through mass movements destabilized state and society alike. During the chaos of the Cultural Revolution (196676), bureaucratic and legal institutions collapsed entirely.
Universities shut their doors. Intellectuals were sent to do hard labor in
remote rural areas. Nor was the political elite above the fray. Individual
leaders and their families regularly rose and fell with the shifting winds
of court politics. Serving as Maos heir apparent was positively hazardous
to ones health. The first two ended up dead, while Maos wife, who had
tried to usurp power in his waning years, was arrested after Maos own
death in 1976.
Deng Xiaopings rise to power in 1978 marked a dramatic shift. The
searing experience of the Cultural Revolution convinced him and other
leaders of the need for deep change. They stabilized elite politics. Unlike
Mao, Deng never exercised one-man rule. In part, this was because CCP
elders elevated other figures, particularly Chen Yun, to the top ranks as
a check on Deng. But Dengs own preferences also played a role. He
eschewed Maos cult of personality, opting instead for a low-key management style marked by a search for consensus among top leaders.
Under Deng, party governance was regularized. Mass movements
faded. There was less stress on ideology, and more on results. In his
famous words, It does not matter if a cat is black or white, so long as
it catches mice. Merit-based systems were established to recruit and
promote new officials. Orderly retirement procedures were adopted to
clear out the elderly. China thus avoided the fate of the Soviet Union in
the 1980s, where leadership ranks resembled a slowly decaying geriatric
ward. Political purges, once so fierce, grew rarer and milder. Although
Dengs first two handpicked successors were forced to resign following
outbreaks of student unrest during the late 1980s, neither was physically
harmed, nor were their families targeted.

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The rest of the Chinese bureaucracy swung back toward institutionalized governance as well. No longer were the rules of the game supposed
to shift with each new leader.3 Legal reform became a hallmark of the
post-Mao era. Authorities issued hundreds of new statutes and regulations, constructing a comprehensive framework of criminal, civil, and
commercial law. They reopened law schools. Thousands of new graduates began to flow into the courts and other government legal bureaus
that rose from the ashes of the Mao years.
Economically, the 1980s saw dramatic improvements in standards of
living. Collectivized agriculture unraveled. Market incentives were introduced. Rural incomes soared, lifting hundreds of millions out of crushing poverty. The urban-rural gap narrowed. As Yasheng Huang points
out, Chinese capitalismin the 1980swas also a poor mans affair.4
Financial liberalization led to expanded credit in the countryside. Rural
entrepreneurship boomed as township and village enterprises grew.
Socially, China gradually opened up. Authorities backed away from
the pervasive ideology that had characterized the Mao era. The Party
no longer had any deep interest in controlling citizens internal beliefs,
just their public actions. Churches, mosques, and temples reopened. So
did colleges and universities. Official controls over the lives of citizens
eroded. As ration coupons and state employment gave way to market
forces, people became less dependent on bureaucrats. When greener
pastures beckoned in the next county or province, many began to simply
pick up and leave. And as China turned outward, foreign students, businesspeople, and ideas began to flow in.
By the late 1980s, such trends had culminated in an unusually open
atmosphere. Relaxed religious policies had generated improved relations between the state and ethnic groups such as the Muslim Uighurs
and Buddhist Tibetans, including a series of talks between representatives of Beijing and the Dalai Lama. Intellectuals gathered in Beijing salons to debate liberal reform. In these years, even state television could
air controversial programs such as River Elegy (1988), which critiqued
traditional Chinese culture and urged greater exposure to the outside
world as a means to modernize China.
Chinese authorities themselves began to experiment with yet deeper reform. Controls over the media were relaxed. And in 1987, under reformminded CCP general secretary Zhao Ziyang, they edged tentatively toward
separating the Party from the organs of governmentthe furthest steps toward meaningful political reform that China has seen to date.

Constrained Reform, 19892003


Then came Tiananmen. After a period of seeming indecision, the party-state came crashing down on the 1989 student democracy movement
with savage repression. Reform experiments were cut short. Party elders

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sacked Zhao, purged reformists from the bureaucracy, and reinstated


tight controls over the media and government. Horrified by the fate that
began to overtake the communist regimes of Central and Eastern Europe
just a few months after the Tiananmen
Square crackdown of June 1989, the
By 2002, CCP leaders had CCP chiefs set their faces implacably
against fundamental political reform.
managed to turn comWith an existential crisis loommunist orthodoxy on its
ing, Deng Xiaoping moved carefully.
headredefining Party
Viewing the politics of leadership suctenets to accept selfcession as a major driver of the Soviet
made billionaires into
collapse, Deng eased the older generathe CCP itself. Money
tion of CCP leaders into retirement. He
and power thus fused
crowned his own political heir, Jiang
Zemin (1989), and anointed Hu Jintao
into red capitalism.
as Jiangs eventual successor. Combined with increasingly regularized
promotion and retirement standards, this brought an unusual degree of
stability to the Party bureaucracy for roughly two decades, lasting even
beyond Dengs death in 1997.
Party authorities took other preventive measures as well. In 1991,
they established an embryonic new bureaucracy to coordinate responses
to social unrest and nip incipient protests in the bud.5 That same year,
they launched a nationalistic patriotic-education campaign in schools
and the media.6 During the 1990s, movies focusing on atrocities that
Japan had committed in China during the 1930s and 1940s steadily migrated to the center of the state-run entertainment industry. Patriotic
education also spread to Tibet, which had experienced its own unrest
in 1988. Party authorities sent cadres into Buddhist monasteries to press
monks to publicly renounce the Dalai Lama.
Although fundamental political change was out, limited institutional
reforms were not. Central authorities desired better means to cope with
the mounting conflicts brought by rapid social change. Administratively, they sought new ways to monitor their local agents. Giving citizens
limited powersto challenge local officials in court, offer opinions
through legislative channels, or choose village officials through grassroots electionslooked like a solution. The 1990s saw law and litigation become a new state mantra. Authorities professionalized the judiciary and privatized the bar. In 1997, rule according to law became a
core CCP slogan, enshrined in the constitution two years later.7
Deng remained convinced that economic development was the key to
modernizing China and avoiding the USSRs fate. Overcoming resistance
within the CCP, he reinvigorated market reforms in 1992. Labor markets
were liberalized. State-run systems for allocating jobs and housing gradually dissolved. By the late 1990s, this culminated in the full privatization

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of urban housing in China. As the economy boomed, college graduates


were left to their own skill, luck, or connections to make their careers
and fortunes. Instead of going to work in state-owned enterprises, many
sought jobs in the now-recognized private sector, including the growing
numbers of foreign firms seeking to do business in China. Party leaders
stood ready to welcome the newly wealthy with open arms. By 2002, they
had managed to turn communist orthodoxy on its headredefining Party
tenets to accept self-made billionaires into the CCP itself. Money and
power thus fused into red capitalism.8
In the 1990s, China was increasingly open to the outside world. Students flocked to learn English in preparation for overseas study. Joining
the World Trade Organization in 2001 meant that China, after decades
of isolation, was about to reconnect with global commerce. Linking up
with the outside world (yu guoji jiegui) and adapting Chinese practices
to mesh with international norms became national obsessions. Globalization was a source of national pride and state legitimacy.
Such sentiments infused a broader range of state policies. China
spent vast sums on a crash expansion of higher education in the late
1990s, seeking to create universities of global repute equal to Harvard
or Oxford. Numerically, at least, the effects were dramatic. In just the
short period from 1998 to 2000, the number of entering college students
doubled to two million as classrooms and dormitories overflowed. The
surging tide of students fed another trendthe explosion of the Internet.
Growing numbers of students began using loosely controlled college
online chat rooms to discuss a wide range of topics.
Offline, the 1990s saw a boom in civil society organizations. Some
groups were religious; others worked for causes such as womens rights,
poverty alleviation, and the like. As Beijing steadily backed away from
providing services under a socialist economic model, it left many health
and development tasks to citizens. Voluntary organizations naturally
sprang up to fill the void. Overseas influences played a role too. International events such as the 1995 UN World Conference on Women, held
in Beijing, helped to raise the stature of Chinese domestic organizations,
while overseas Chinese in Southeast Asia, Christian churches, and international NGOs such as the Ford Foundation provided crucial financial
assistance.
The party-state remained wary. When activists used civil society
channels to form political organizations (such as the China Democracy
Party, founded in 1998), the regime crushed them. In 1999, Falun Gong
members leveraged new online tools to help them stage a surprise demonstration at CCP headquarters in Beijing, during which they peacefully
appealed for official recognition of their spiritual movement. After a
brief tactical pause, authorities responded by expanding the stabilitymaintenance organs set up in 1991 and turning them against Falun
Gong in a brutal eradication campaign.

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By the turn of the millennium, Chinese leaders appeared to have surmounted the crises of the early 1990s. As Andrew Nathan noted in 2003,
they had seemingly managed to institutionalize single-party political
rule, fusing it with market capitalism and global trade networks to create a resilient authoritarian regime that would carry forward into the
twenty-first century.

Reform Stagnates, 200312


Beneath the surface, however, the reforms of the 1990s were creating new challenges for the regime. By the early twenty-first century, economic shifts had given birth to a new range of institutional forces. Increasing commercialization meant that media outlets such as the Southern
Weekend group were no longer simple extensions of the CCP propaganda
apparatus. Now, they had to compete for readers and advertising. A generation of crusading and muckraking journalists arose. They began to test
the limits of censorship, reporting aggressively on corruption and abuses
of power by local officials throughout China. The burgeoning Internet
supercharged these efforts as more and more citizens took to new media
to voice complaints. Legal reforms led some judges and bureaucrats to
suggest that it was time to give Chinas written constitution real weight.
Outside the circles of government, meanwhile, there emerged a cadre of
public-interest lawyersfigures such as Teng Biao and Xu Zhiyong
who were skilled at wielding media pressure and legal rhetoric to press for
deeper institutional reforms.
In 2003, these trends reached their high-water mark. The beating death
in police custody of Sun Zhigang, a young college graduate and internal migrant to booming Guangzhou (Canton), triggered an explosion of
both online and offline outrage. Liberal legal activists quickly emerged
as opinion leaders, articulating legal and constitutional deficiencies with
the case. Faced with overwhelming social pressure, Beijing annulled the
nationwide detention system under which Sun had been held.
Chinas leaders began to take a hard look at their society. They saw
similarities with conditions in the East European and Central Asian
countries where color revolutions had toppled authoritarian regimes
during the first half of the 2000s. Thus began a steadily escalating crackdown aimed at reasserting official control where it had slipped. The Partys leaders turned against many of its own late-twentieth-century legal
reforms. Within the courts, new political campaigns reminded judges of
the supremacy of CCP rule over the constitution and laws. Pressure on
public lawyers escalated. Regular police visits came first, followed by
denial of law licenses, closure of organizations such as the Open Constitution Initiative (2009), and the arrests or lengthy disappearances of
key activists.
Similar controls spread on the Internet as well. In 1987, the first email

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from China to Germany had read: Across the Great Wall, we can reach
every corner of the world. Two decades later, Beijing sought to prevent
precisely that. State authorities steadily adapted their methods of censoring print and television to the online world, strengthening systems
for blocking and filtering information to the point where they became
known as the Great Firewall of China. Rather than a total barrier, the
Firewall aims to make certain information outside China so hard to access that most Chinese citizens will give up looking for it. Within China,
it attempts to induce self-censorship on the part of most users and Internet providers. The regime sanctions those who refuse to cooperate. Such
pressures led Google, which had entered China in 2005, to shutter its domestic Chinese search engine five years later. More compliant domestic
firms such as Baidu now dominate the mainland-Chinese search market.
Tighter controls produced an especially dire turn in Xinjiang and
Tibet. Since the 1990s, repressive policies in both regions had fueled
rising popular resentment. After 2000, Beijings development policies
brought a tide of Han Chinese migrants to each area, but limited benefits
for locals. Festering tensions exploded into violence in Tibet in 2008
and Xinjiang a year later. Brutal ethnic riots wracked Urumqi, killing
hundreds of residents, both Han and Uighurs alike. Authorities cracked
down hard with mass arrests and extensive use of force.
By the early twenty-first century, economic reforms were filling
Chinas cities with the emblems of modern success: skyscrapers and
Starbucks. State investment was steered into massive infrastructure and
urban-development programs. But in stark contrast to the 1980s, the
benefits of such development now flowed disproportionately to a much
narrower elitestate companies and foreign investorsrather than to
the populace at large. Credit policies increasingly disfavored rural entrepreneurs. Township and village enterprises that had helped rural China
to boom during the 1980s faltered. Many went bankrupt.
The impact of these changes rippled through all levels of society.
In the early 1990s, the best and brightest of Chinas college graduates
had sought their fortunes in the private sector. By the 2000s, this had
reversed. State employment offered more attractive possibilities for enriching oneselfif not through legitimate earnings, then through corruption. Applications to join the civil service surged through the centurys early years.9 Shifts occurred among the working poor as well.
With fewer jobs to be had in the countryside, rural residents flowed to
the cities in search of work. The migrant population, which had hovered
between 60 and 70 million in the early 1990s, surged to 137 million in
2000, and 206 million a decade after that.10 In the cities, however, only
established residents had access to urban social benefitshealth, education, and pensions. New migrants went without. Trends such as these
fueled dramatically accelerating income inequality; by 2008, it reached
levels found in Latin America and sub-Saharan Africa.

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Chinese authorities were acutely aware of these problems. In 2007,


Premier Wen Jiabao warned that Chinas development path was unstable, unbalanced, uncoordinated, and ultimately unsustainable. And under Hu Jintao, authorities took steps to improve the lot of the rural poor.
Agricultural taxes were abolished, and rural health care expanded. Such
measures helped to stem rising inequality but did little to address underlying imbalances, particularly the steadily expanding privileges of stateowned enterprises. After a bout of reform in the 1990s, a silent counterrevolution had occurred in which state-owned enterprises (SOEs) saw
their financial and political privileges reconfirmed. By 2006, Beijing
was openly promulgating policies to help state-owned national champions compete with the foreign firms that had arrived to do business in
China during the reform period.
These economic shifts reflected a deeper political ossification. As
Dengs generation of leaders with roots in the 1949 communist revolution passed from the stage, political power diffused among a broader
elite. Jiang was weaker than Deng, and Hu was weaker than Jiang. Chinese politics increasingly resembled a feudal oligarchy. Top CCP figures
controlled extensive networks of personal influence comprising loyal
followers spread throughout middle- and lower-level posts. The fusion of
money and power that had taken place since the 1990s meant that these
networks sprawled across Party organs, SOEs, and private financial institutions. Such was the case with Zhou Yongkang, a Politburo Standing
Committee member, and thus one of Chinas top nine leaders between
2007 and 2012. On paper, his official portfolio consisted of the massive
security apparatus that had ballooned over the prior decade to deal with
internal dissent. But his actual turf extended deep into the state energy
sector and the Sichuan provincial administration as well. Such cliques
defied the basic Leninist principle of centralized rule in a one-party state,
facilitated rampant corruption, and stymied systematic reform by fostering nests of resistance to increasingly weak central leaders.
As China approached 2012, politics appeared frozen. With economic
and institutional reform seemingly blocked by the twin forces of internal
CCP politics and total resistance to political liberalization, the country
appeared to be locked in a trapped transition.11

Reform Unwinds, 201215


Behind the scenes, however, things were beginning to break loose.
The year 2012 marked the end of the clear line of succession set by Deng
back in the early 1990s. Factional struggles intensified over who would
be elevated to positions of power. Opportunistic politicians sought to
catapult themselves to higher office. In the southwestern metropolis of
Chongqing, local CCP secretary Bo Xilai attempted to turbocharge his
efforts to obtain a seat on the Politburo Standing Committee. Break-

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ing with long-accepted political norms that emphasized low-key public


personas for up-and-coming cadres, he aggressively cultivated a charismatic populist image during his tenure from 2007 to 2012. His signature
tactics included mass rallies, a revival of Maoist red culture, and an
intense campaign against organized crime that swept up criminal suspects, legitimate businessfolk, and their lawyers alike.
Chinas decades-long economic boom was ending. After averaging
a phenomenal 10 percent a year between 1979 and 2010, the growth
rate slipped to 7.7 percent by 2012 and continued to sink in following
years. In part, China was experiencing the same structural and demographic transitions that other developing East Asian economies such as
South Korea and Taiwan had gone through. But Beijings specific development choices exacerbated problems. Since the late 1990s, state-led
investments in roads, airports, and housing had loomed large as drivers of economic growth. This reached manic proportions after the 2008
world financial crisis. Seeking to jump-start a slowing economy, Beijing
began a massive stimulus program that included building the worlds
most extensive high-speed rail network almost overnight. Such policies
helped to prop up growth in the short term, but at the cost of soaring
public debt, anemic domestic consumption, and a threefold overdependence on Chinas frothy real-estate market to act simultaneously as an
engine of growth, a source of local-government revenue (via land sales),
and a place to invest private wealth. When the housing bubble began
deflating after its 201113 peak, the pain made itself felt throughout the
Chinese economy.
It was amid this mounting economic and political stress that Xi Jinping took power. Like Bo, he was a princeling with an impeccable
revolutionary pedigree. Xi was born in 1953; his father had served
with Mao. Xi had emerged as a compromise candidate, acceptable to
the competing factions identified with Hu and Jiang. Yet once Xi had
ensconced himself in Chinas triad of top offices (general secretary of
the CCP, president of the Peoples Republic, and head of the Central
Military Commission) in 2013, he quickly broke through the bonds of
established patterns and norms and shook the political landscape.
Xi moved to solidify his position by taking down his rivals. First in
line was Bo Xilai. Bo had fallen from grace when his wife was implicated
in a sordid murder plot involving the 2011 death of a British businessman,
after which Bos police chief had fled to the U.S. consulate in Chengdu
in early 2012. Xi quickly weeded out officials loyal to Bo and placed Bo
himself on trial for corruption and abuse of power in 2013. Such a move
was not entirely unprecedented. Similar investigations had been used in
the 1990s and 2000s to fell individual Politburo members whom Jiang
and Hu had regarded as threats during their respective ascents to power.
What followed, however, was new. In 2013, Xi moved against his
next targetformer security czar Zhou Yongkang, who had apparently

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dissented from the decision to purge Bo. In doing so, Xi broke with unwritten Party rules that exempted former and current Politburo Standing
Committee members from prosecution. Xis decision radically upended conventions that had existed since
the beginning of the reform period.
The targeting of family members (in
As of early 2015, central
CCP organs had begun to this case, Zhous sons) by investigaspeak of the need to rec- tors further intensified unease among
members of the political elite. Wild rutify higher education,
mors began to proliferate as to which
purge Western values
other former leaders might be next.
from textbooks, and rediXi coupled his efforts to solidify
rect art and architecture
control with a tough campaign against
back toward traditional
graft. Run under opaque rules by the
secretive CCP disciplinary apparaChinese forms.
tus, it was the severest such campaign
since the reform era began. Week after week, lists of officials sacked or placed under investigation flowed
forth. Xi thus shattered 1990s-era norms that had tolerated both the fusion of money and politics and the unabashed displays of excess that resulted. Once self-confident cadres began to grow palpably afraid. Sales
of Prada handbags and the receipts of Macau gambling houses nosedived. Chinas ultra-rich busied themselves with efforts to move their
assets and families abroad, while midlevel bureaucrats hunkered down
in fear that a wrong move would end their careers, or worse.
By late 2014, rumors began swirling that retired top leaders such as
Hu and Jiang had warned Xi to curb his efforts. If indeed they had urged
him to avoid tangling with too many of the elite patronage networks,
there is little evidence that he has heeded their message. On the contrary, the early months of 2015 saw the anticorruption campaign sweep
through top military ranks, claiming a former Central Military Commission vice-chairman and dozens of generals. Most recently, it has even
begun to envelop Hus and Jiangs own factional allies.
With both the bureaucracy and other top leaders cowed, Xi centralized his formal power. A galaxy of new internal Party leadership groups
has taken shape in the areas of foreign affairs, economic reform, and
Internet security. Their shared feature is Xi Jinping at the apex. The
domestic-security apparatus that Zhou Yongkang and his predecessors
had assiduously built has been folded into a new national-security commission, chaired (unsurprisingly enough) by Xi. Such moves run contrary to internal CCP practices dating from the 1980s. Under these old
customs, top Party officials had divided power among themselves, seeking elite stability through a rough balance of power. Xi has overturned
this, stamping himself as the most powerful Chinese leader since Deng,
and perhaps since Mao.

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During his rise, Xi has borrowed directly from the playbook of his
fallen rival Bo Xilai. He has projected a populist image, aided by the star
quality of his wife, a renowned folk singer. His confident, easy interactions with the public have formed a sharp contrast with those of his predecessor Hu Jintao, a wooden speaker given to stiff sloganeering. Xi has
tapped into a real vein of support among citizens who are disgusted by
official graft, and who love seeing the rich and powerful being brought
to their knees by a strong leader who knows how to get things done.
Xi has built on this sentiment. His image-building has begun to give
off the whiff of a personality cult, with aromatic notes steadily strengthening over time. His public appearances have received a level of television coverage dwarfing that accorded to any other top official. Starting in
2014, he has begun delivering an annual personal address to the nation.
Popular adulation for Papa Xia nickname that began online and has
now drifted into the state presshas become a noticeable phenomenon.
After Xis surprise December 2013 visit to a Beijing dumpling restaurant
to dine with ordinary customers, it became a pilgrimage site for tourists.
By early 2015, art students at one Beijing college were sketching his portrait as part of their entrance examination. The 2015 edition of the annual
Chinese New Years gala on state televisionthe worlds most-watched
annual broadcast, with a viewership approaching eight-hundred-million
peoplefeatured singers crooning I give you my heart while scenes of
Xi visiting citizens and troops flashed behind them. This is a long way
from the low-key style of collective leadership that had prevailed since
the end of the Cultural Revolution in the 1970s.
Playing the populist card has gone hand in hand with reinforcing
hard-line policies launched under Hu Jintao. The crackdown on publicinterest lawyers has tightened. Social-media sites have been subjected
to tighter controls. Even those used to a degree of immunity have found
themselves targeted. Foreign businesses have been alarmed by steppedup corruption probes into pharmaceutical companies, dawn raids by
antimonopoly regulators on firms ranging from Microsoft to MercedesBenz, and proposed antiterror rules that would require foreign software
companies to hand over their encryption keys. New civil society laws
have tightened restrictions on foreign NGOs. As of early 2015, central
CCP organs had begun to speak of the need to rectify higher education, purge Western values from textbooks, and redirect art and architecture back toward traditional Chinese forms.
Such moves reflect a deeper shift. For decades, state ideology has
remained in limboa matter of perfectly coiffed television anchors
mouthing increasingly anachronistic Marxist slogans. Xi has deepened
efforts to find a new basis for the legitimacy of single-party rule. This
son of a Maoist revolutionary has pivoted back to the pre-Maoist past,
making a pilgrimage to the hometown of Confucius, extolling traditional Chinese culture, and embracing reformers from the time of the Qing

140

Journal of Democracy

dynasty (16441912) who were once derided as feudal or reactionary. Under Xis mantra of the China Dream, a new ethnonationalist
narrative has been taking shape. Slowly, China has begun to turn away
from the late twentieth century and its policies of cultural openness. In
schools, the role of English in the national college-entrance test has been
deemphasized. On television, risqu knockoffs of Western dating programs have been eclipsed by game shows that test contestants knowledge of Chinese-language characters.
For many, the new emphasis on Chinas own cultural roots has fed a
welcome sense of national pride. But it has intensified tensions with those
who do not fit the new state narrative. Unregistered Christians in Zhejiang
Province, tacitly tolerated for decades, have been hit by a sweeping official campaign of church demolitions. Relations between the vast Han Chinese majority and ethnically distinct minority populations have worsened.
In Tibet, continued state repression has produced a wave of self-immolations by more than a hundred young people. In Xinjiang, state suppression
of Uighur identity and the Muslim religion have fueled radicalization and
a rising wave of domestic terrorism. In Hong Kong, increasing mainland
influence and Beijings heavy-handed controls have stirred discontent
among Cantonese-speaking citizens fearful about the fate of their distinctive cultural and political identity, resulting in the 2014 Occupy Central
movementthe largest protests anywhere in China since 1989.12

After the Reform Era


Political stability, ideological openness, and rapid economic growth
were the hallmarks of Chinas reform era. But they are ending. China is
entering a new era, the age after reform.
This is not entirely bad. For some in China, it may mean a chance to
address such reform-era excesses as rampant ecological damage, stark
social inequality, and a cultural heritage badly damaged in the rush to
modernize. Yet there is also a dark side.
What kept China stable during the reform era can be summed up in a
single word: institutionalization. The last two decades of the twentieth
century saw the rise of an increasingly steady set of norms in China to
govern state and society alike:
An increasingly norm-bound politics of elite succession;
A depoliticization of the bureaucracy, marked by the decline of
factional purges and the rise of meritocratic norms;
Steady institutional differentiation, with top CCP leaders handling
more clearly defined portfolios and SOEs responding to market
pressures;

Carl Minzner

141

The emergence of bottom-up input institutionslocal elections,


administrative-law channels, and a partly commercialized media
airing popular grievancesthat gave citizens a limited political
voice and helped to boost state legitimacy;
New channels that helped to give the rising new economic elite
a sense of being invested in both Chinas future as well as in the
existing party-state;
An ideological stance open enough to welcome a broad range of
domestic social constituencies and foreign institutional innovations alike.13
These all are now unwinding. Somesuch as semicompetitive local
elections or assertive domestic media outletsquietly gave way over
the past decade in the face of renewed state controls. Since Xis rise in
2012, other norms have been broken more dramatically.
The reasons for the unwinding are twofold. First, Beijing has systematically undercut its own bottom-up reforms. Over the past two decades,
a regular pattern has developed. Individual leaders sponsor reforms to
address latent governance problems. Doors open. Citizens start to use
them to participate politically. Villagers begin to organize around semiopen elections. Public-interest lawyers explore new legal channels.
Social media start to take shape as a forum in which citizens can air
grievances. At that point, central Party authorities get nervous. They see
shades of 1989 and step in to put a lid on things. Reforms are smothered,
activists detained. For precisely this reason, China has remained locked
in a one-step-forward, one-step-backward dance since the 1990s, with
the Party regularly deinstitutionalizing everything outside its own walls.
Naturally, this is a problem for Chinese society. It robs social activists of the gradual evolutionary path toward becoming a moderate, institutionalized political force. But it is a problem for the rulers too. Absent
any external checks, the semi-institutionalized nature of Party rule since
the 1990s has fused with the fastest accumulation of wealth in human
history to produce vested political and economic interests that are both
highly corrupt and deeply resistant to changethe Chinese analogue of
the K Street lobbyistU.S. Congress nexus, but without even the shadow
of elections, judicial oversight, or a free press as checks.
Now put yourself in Xi Jinpings shoes. You know that China faces
deep economic and social challenges. You sense that the Party itself has
gone badly astray. Yet you lack any external institutions to rectify it.
Nor is there an alternative political forcesuch as the organized opposition movements that emerged despite authoritarian rule in Taiwan and
South Koreathat you might employ as a counterweight. (Not that you
would even remotely entertain such a notion: The lessons of 1989 run
too deep.) What would you do?

142

Journal of Democracy

Here we come to the second reason for the shifts noted above. Xi
appears to have concluded that his only path to a breakthrough requires
him to tear up the existing rulesreversing many if not all of the partly
institutionalized internal Party norms that Andrew Nathan noted back in
2003. Hence Xi has opted for politicized anticorruption purges of rivals,
centralization of power in his own hands, cultivation of a populist image, and an ideological turn toward nationalism and cultural identity.
These are not mere transitory policies. For Xi, they are absolutely fundamental shifts necessary to address the crisis he sees facing China.
He may be right. Optimists can point to his efforts at fiscal and economic reform. They can cite his efforts to strengthen Party disciplinary
and legal systems as indications that he will build new political institutions on the ashes of the old.14 Perhaps Xi does indeed belong to that
rarest of all rare breedsthe benevolent authoritarian emperor who presides wisely over the remodeling of China, while ruthlessly crushing
dissent in the process.
Moreover, there are still several key reform-era norms that have not
yet been breached. The ideological redefinition of China remains embryonic. Marxist dialectics still figure in CCP speeches even as Confucian quotations proliferate. And Chinese state television, unlike its
Russian counterpart, continues to promote interethnic harmony rather
than rank appeals to majority-group chauvinism. Most important, Xi has
drawn a clear line at social mobilization. For all of his invocation of
Mao-era symbolism, there has been no sign that he intends to resort to
mass movements.
Yet China is now steadily cannibalizing its own prior political institutionalization. Observers such as David Shambaugh, who once pointed
to such institutionalization as a source of stability for the party-state, are
revising their evaluations of the systems sustainability sharply downward.15 Others have begun to speculate openly whether reform-era policies limiting top Party leaders to ten years in office might be next to go,
with Xi Jinping perhaps trying to extend his rule well beyond 2022.16
Uncertainty hangs in the air. Chinese with the most to lose are diversifying against riskplacing their money in Vancouver real estate and their
children in U.S. colleges, and maybe even seeking passports from one or
another of the small Caribbean nations that is known to put citizenship
up for sale.
The events of 1989 did not resolve the core question of Chinas political future. Nor did they put it on hold indefinitely. Rather, they launched
a cascading set of effects that have swept through Chinas politics, economy, and society in the years since. The resulting reverberations have
now begun to dislodge core elements of the institutional consensus that
has governed China for decades. A new future is slouching toward Beijing to be born.

Carl Minzner

143

NOTES
1. Larry Diamond, Facing Up to the Democratic Recession, Journal of Democracy
26 (January 2015): 141.
2. Francis Fukuyama, Why Is Democracy Performing So Poorly? Journal of Democracy 26 (January 2015): 11.
3. Deng Xiaoping, Emancipate the Mind, Seek Truth From Facts and Unite as One
in Looking Toward the Future, 13 December 1978, http://english.peopledaily.com.cn/
dengxp/vol2/text/b1260.html.
4. Yasheng Huang, Capitalism with Chinese Characteristics: Entrepreneurship and
the State (New York: Cambridge University Press, 2008), 83.
5. Zhonggong zhongyang, guowuyuan guanyu jiaqiang shehui zhian zonghe zhili
de jueding [CCP Central Committee, State Council decision regarding strengthening the
comprehensive management of public security], 2 February 1991.
6. Suisheng Zhao, A State-Led Nationalism: The Patriotic Education Campaign in
Post-Tiananmen China, Communist and Post-Communist Studies 31 (September 1998):
287302.
7. Some material is paraphrased or transposed directly from Carl Minzner, China at
the Tipping Point: The Turn Against Legal Reform, Journal of Democracy 24 (2013): 65.
8. Bruce Dickson, Red Capitalists in China: The Party, Private Entrepreneurs, and
Prospects for Political Change (New York: Cambridge University Press, 2003).
9. Guojia gongwuyuan kaoshi 20 nian baokao renshu zhang 344 bei [In 20 years,
civil-service applicants increased by a factor of 344], Beijing News, 7 November 2013.
10. Kam Wing Chan, Migration and Development in China: Trends, Geography and
Current Issues, Migration and Development 1 (December 2012): 190.
11. Minxin Pei, Chinas Trapped Transition: The Limits of Developmental Autocracy
(Cambridge: Harvard University Press, 2006).
12. See Michael C. Davis, Hong Kongs Umbrella Movement: Beijings Broken
Promises, and Victoria Tin-bor Hui, Hong Kongs Umbrella Movement: The Protests
and Beyond, Journal of Democracy 26 (April 2015): 10121.
13. Andrew J. Nathan, Chinas Changing of the Guard: Authoritarian Resilience,
Journal of Democracy 14 (January 2003): 617; David Shambaugh, Chinas Communist
Party: Atrophy and Adaptation (Berkeley: University of California Press, 2008), 105; Kellee Tsai, Cause or Consequence? Private-Sector Development and Communist Resilience
in China, in Martin Dimitrov, ed., Why Communism Did Not Collapse: Understanding
Authoritarian Regime Resilience in Asia and Europe (Cambridge: Cambridge University
Press, 2013), 20534.
14. Carl Minzner, Legal Reform in the Xi Jinping Era, Asia Policy, no. 20 (July
2015).
15. David Shambaugh, The Coming Chinese Crackup, Wall Street Journal, 6 March
2015.
16. Willy Lam, Xi Jinping Forever, Foreign Policy, 1 April 2015.

8/2/2015

ChinasRulebyLawTakesanUglyTurn|ForeignPolicy

Chinas Rule by Law Takes an Ugly Turn


A recent spate of arrests and detentions is another sign of the Communist Party's
intolerance for dissent.
BY NANCY TANG , KEITH HAND , EVA PILS , TAISU ZHANG , THOMAS KELLOGG

JULY 14, 2015 - 2:17 PM

This article has been updated to reflect additional responses.


Yet another crackdown has begun under Chinese President Xi Jinping. This time, the target isso-called
rights lawyers, loosely defined as those who bring defend unpopular or dissident clients, or bring cases
against the state that rest on claims of individual rights. In recent days,accordingto U.S.-based nonprofit
Amnesty International and other overseas sources, over 100 Chinese rights lawyers have been detained,
questioned, or reported missing.According to a July 12reportin Chinese state media, key to the recent
crackdown are several lawyers and one administrative assistant from Beijing-based law firm Fengrui, who
are suspected of an involvement with a criminal syndicatethat caused trouble and disorder on behalf
of clients. What does it mean and why is Beijing doing this now?FPand partner siteChinaFileasked
some experts. The Editors
Nancy Tang:

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The crackdown has already raised grave doubts about the real-life implications of Chinese PresidentXi
Jinpings particularconceptionof rule by law. On July 12, state mouthpiecePeoples Dailypublished
awhole-page feature,Unveiling the Inside Plot of the Rights Defense Incident, accusing the seized
lawyers of colluding with petitioners, sensationalizing grievance cases on the Internet, seeking personal
fame and status, and participating in a criminal syndicate.
Butactivists point out that thePeoples Dailystory and editorial are essentially a prosecution without
trial. To make their point, they have juxtaposed thePeoples Dailycriminal syndicate headline with an
(unverified) message sent to a Zhejiang-based lawyer by a Shanghai police bureau branch, which read: Do
not publish any relevant information on the arrest of Wang Yu, Zhou Shifeng, and [other rights] lawyers.
Otherwise, we have a way togao, or mess with, you and your son.
The current crackdown on lawyers, though perhaps unprecedented, is anything but unexpected. Since Xis
administration came into power in 2012, attacks on NGO groups, civil society activists, andmedia
freedomshave impacted anti-discrimination groups, liberal intellectuals, and young feminists, and have
resulted in arrests or detentionsin the thousands.The ultimate goal appears to be the total prohibition of
any possible outside checks and balances on the power of the Chinese Communist Party. The current
crackdown is just the most recent manifestation.
In a May 2015 speech at theCentral United Front Work Conference, Xihighlightedoverseas Chineseand
especially Chinese students abroadas a new front for mobilization of party interests. Personnel studying
abroad, he said, constituteda key element of the skilled workforce, as well as the new focus for a United
Front. That approach is wrongheaded. The state should recognize that having studied and lived abroad,
students and scholars will carry different, sometimes dissenting, opinions with them back to China. The
governments stated refusal ofWestern valuesand itsparanoiaaboutforeign influenceis seriously shortsighted and in the long run, may deprive China of opportunities to reform economically, politically, and
legally.

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ChinasRulebyLawTakesanUglyTurn|ForeignPolicy

One consequence of the recent detentions is likely to be the continued brain drain of young, justiceminded Chinese abroad.As ayoung feministand aspiring advocate forChinese civil rights, I find 2015 an
ominous year to begin pursuing my Juris Doctorate (JD) at an American law school. While Im not aware of
statistics on the number of Chinese nationals going overseas to pursue JDs, I sense Im part of a growing
trend. Will our legal training in the United States impact the future of the Chinese legal landscape? Will
young legal talents become interested in the separation of power, possible redistribution of power in the
Chinese context, and perhaps even civil rights? Or will they just become yet another elite, depoliticized
Chinese circle, collaborating with the state for personal status and material gain?
Keith Hand:
In my view, we should understand the wave of lawyer detentions this past weekend as the crescendo of a
decade-long campaign by Chinas leaders to contain the perceived threat posed by the rights defense
movement.
The 2003 Sun Zhigang incident generally is viewed as a milestone in the development of rights defense in
China. After Sun died in police custody, a group of young lawyers leveraged media coverage and public
outrage over the incident and filed a petition with the National Peoples Congress Standing Committee
challenging the legality of a regulation on Chinas custody and repatriation system. Faced with public
opinion pressure over Suns death and a modest, carefully drafted legal argument advanced through
official channels, the government repealed the regulation. The incident highlighted a moderate approach
that legal reformers could use to push for legal reform within Chinas authoritarian system. In the wake of
this incident, moderate lawyers refined rights defense strategies and applied them with limited success on
issues such as anti-discrimination, property rights, and criminal procedure. At the same time, they
advanced broader arguments about constitutionalism and the need for meaningful legal restraints on the
Party-state.

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ChinasRulebyLawTakesanUglyTurn|ForeignPolicy

Senior leaders identified the rights defense movement as a potential threat early on. Although official
media praised lawyers such as Xu Zhiyong and Teng Biao for promoting reformwithin the legal
framework, authorities detained or prosecuted other lawyers, including Gao Zhisheng, Guo Feixiong, Zhu
Jiuhu, and Chen Guangcheng, whose advocacy was viewed as more confrontational or destabilizing. By
2006, Luo Gan, then head of the Party Political-Legal Commission, publicly declared that China must
[e]ffectively guard against enemy forces and people with ulterior motives who get involved in or use
contradictions among the people to manufacture disturbances, including those who use the pretense of
rights defense to engage in sabotage.
Over the decade that followed, a confluence of two trends narrowed space for rights defense actions and
expanded the group of rights activists that Chinese leaders viewed as falling within the category of enemy
forces. As concern about threats to social stability intensified, Chinese leaders launched campaigns to
shore up the loyalty of political-legal institutions and incorporate these institutions into a system-wide
stability maintenance network. At the same time, rights defense lawyers began to organize more overtly
and to push political-legal boundaries through their advocacy on a range of sensitive cases and issues. The
wave of citizen activism crested in 2008, when thousands of citizens signed a broad call for constitutional
government called Charter 08.
Efforts to contain the rights defense movement have intensified under Xi Jinping. While the Fourth
Plenum Decision renewed the partys commitment to legal professionalism and process in certain
respects, it also strengthened emphasis on the party. Xis apparent goal is to discipline the bureaucracy
and promote new economic reforms by revisiting and modestly expanding on the legal reforms of the
1990s and early 2000s, while containing perceived threats that the earlier wave of legal reforms generated.
Accordingly, the party-state has stepped up repression of rights lawyers, tightened control over the
Internet and other discourse that sustains rights defense actions, and marginalized citizen constitutional
rights arguments by emphasizing party leadership as the defining principle of Chinas constitutional
order.The wave of detentions this past weekend is just the latest step in this sustained effort.

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What political-legal space remains for rights defense lawyers? In the early 2000s, there was considerable
optimism that some Chinese lawyers had identified a middle ground within which Chinese leaders would
tolerate some moderate citizen pressure and legal advocacy. Even as this space constricted over the past
decade, petitions from rights lawyers and legal scholars contributed to some meaningful legal reforms.
The adoption of new rules governing property seizures in urban areas in 2011 and leaderships decision to
dismantle the re-education through labor system in late 2013 are notable examples. However, the wave of
repression that has culminated in the weekend detentions demonstrates the leaderships determinationto
eliminate much of this remaining space and make clear that it will tolerate citizen legal argument only
within the very narrow and controlled confines.
Finally, some commentators have observed that the weekend action against rights lawyers demonstrates
the regimes fragility. I think we need to consider a different possibility. Together with Chinas assertive
posture in territorial disputes, the adoption of a broad national security law, and proposed legislation that
would place strict new limits on the Internet and activities by foreign non-profits, the mass detention of
rights lawyers suggests to me that Chinas leaders are so confident in their strength that they no longer
need to maintain the pretense of limited engagement and tolerance.
Eva Pils:
This crackdown is the latest step in Xis apparent campaign to eradicate independent civil society and to
concentrate power. It manifests his neo-totalitarian ambitions trying to reclaim control of all aspects of
society, which requires that all social activities must be reconceived and reorganised along corporatist
lines, and under the firm leadership of the ruling party. The law, with its natural affinity to deep
controversy played out in public, is a particularly important area to be brought under control.

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ChinasRulebyLawTakesanUglyTurn|ForeignPolicy

A July 11 broadcast on state-run China Central Television (CCTV) labelled lawyers at the Fengrui Law Firm
in Beijing as a criminal organization suspected of the offense of creating rights defense-style
disturbances. This phrase captures what rattled the authorities, as well as the absurdity of these
charges.In recent years, human rights advocates in China have developed new strategies to take the
action from inside courtrooms out to social media and the streets.The May 2015 Qingan Incident, in
which the deadly police shooting of ayoung man who may have been trying to petition the
governmenttriggeredwide public discussion and calls for an independent investigation, is a good
example. In its wake, some 660 lawyers rallied around their professional colleagues in a signature
campaign, after one lawyer had been assaulted by unidentified thugs and others had been detained.
But to authorities trying to run a one-party peoples democratic dictatorship, a phrase reiterated in the
National Security Law, such activities look like an attempt to subvert control of the legal process. Legal
advocacy, in their eyes, becomes political resistance. The human rights lawyers swelling numbers
some 200 to 300 now, at an estimate have added to the governments anxieties. It may have reinforced
its perception of human rights lawyers as public enemies hence the crime of creating a rights
defense-style disturbance and the targeting of groups that represent modes of rights advocacy the
authorities wished to repress.
The ongoing crackdown is unprecedented in terms of its scope and methods. Earlier crackdowns
happened much less in the public eye. But this time around, authorities denounced human rights lawyers
all over national media. In being so public and assertive, the authorities have signaled to a broad swath of
society, including the wider legal profession, that they want to stop effective human rights advocacy. They
have also shown themselves brazenly unconcerned about the illegality of some of their methods. Besides
repeated use of forced disappearances, they even held a 16-year-old child for two days with no legal
justification when his parents Fengrui Law Firm employees Wang Yu and her husband Bao Longjun
were swept up in the current crackdown.

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ChinasRulebyLawTakesanUglyTurn|ForeignPolicy

It is perhaps testimony to the strength of the human rights lawyer movement that the campaign we now
see unfolding is so large in scope, with not only dozens detained or ominously out of reach, but also nearly
a hundred lawyers taken in for questioning and warned they are not to advocate for their already-detained
friends. Some of them have lived with persecution for many years. They have been put under surveillance,
harassed, abducted, detained, tortured, placed under house arrest, and some have been sent to prison. As
many lawyers still expect to be detained, the phrase gai lai de jiu lai ba effectively, bring it on! is
currently popular among the social media groups they use to communicate and coordinate their actions.
Inthe short term, this crackdown produces terror and suffering. The spirit of professional solidarity,
which the party is clearly trying to break, can help people live with fear but not entirely dispel it. On a trip
to China in May and June, I spoke to several of the lawyers now detained or disappeared, and already
sensed more of that fear, even though it was not often expressed.
It is difficult to tell what longer-term consequences might be. One likely consequence is greater
disapproval for the governments actions and more support for human rights lawyers within the liberalleaning legal academic establishment, such as recent comments by such widely respected figures as Chen
Guangzhong and Jiang Ping. Chinas rights lawyers are not the only ones who understand that Xis
political vision is wholly incompatible with genuine rule of law.
Taisu Zhang:

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Im not sure that the recent crackdown represents any significant change in government policy towards
activist lawyers. While its scale is indeed unusual, one could argue that the scale was made necessary by
targeting Fengrui Law Firm, which is similarly unusual among Chinese rights-focused legal practices in
the scope and scale of its operations. The way that the crackdown was conducted, including the specific
allegations and propaganda issued in party-controlled newspapers, is not substantially different from how
other arrests and detentions have been conducted since 2007. One could even argue that the government
has been playing a predominantly reactive role in recent years: the number of rights lawyers has
skyrocketed (relatively) over the past decade, and the escalating scale of crackdowns is largely a response
to that. In other words, this is more or less what we have come to expect from the government, which has,
of course, always been openly hostile to rights activists, particularly those who operate with the social
visibility and logistical coordination of Fengrui.
That is to say, once the initial shockwaves subside, Im not sure that this incident will fundamentally alter
the sociopolitical calculus of Chinese rights lawyers. The likelihood of arrest or detention has been very
high for at least the past five to seven years, and is not necessarily that much higher after these recent
arrests.The governments playbook has shown few signs, if any, of substantial change.I expect, therefore,
that the medium- and long-term scale of legal rights activism will continue on whatever trajectory it was
on for the past several yearswhich, apparently, is steeply upwards, despite strong and obvious
government hostility.
I should also add that a number of previous arrests were very much carried out in the public eye. Pu
Zhqiangsarrestwas announced in a number of media outlets, and drew a firestorm of commentary on
Weibo, as did Xu Zhiyongsarrest. The target was larger (in numbers) this time, so naturally a greater
number of people were affected, but the methods, including the media campaign, are not terribly different
from what weve become used to seeing in the past several years.
ThomasKellogg:

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ChinasRulebyLawTakesanUglyTurn|ForeignPolicy

I want to thank Nancy, Eva, Keith, and Taisu for their excellent comments I agree with much of their
analysis. I do, however, want to query Keiths suggestion that the mass detentions of the past weekend do
not suggest fragility, but instead might suggest that the party is in fact so confident in (its) strength that
it no longer needs to allow even the slightest margin of political space to rights lawyers and activists.
Maybe so. But my own conversations with a number of activists and intellectuals as well as with
everyday Chinese over the past several months have highlighted a very real cost of the increased
repression that has marked Chinese society since Xi came to power in late 2012. For many, the Xi years
have been marked by a willingness to pull out all the stops to silence critics and to maintain a high level of
control. To be sure, the party itself has not been spared: an uncountable number of cadres swept up by the
anti-corruption campaign have been tortured, and a small number have died in detention. A disturbing
number of officials have committed suicide rather than face the no-holds-barred investigative techniques
of the Central Commission for Discipline Inspection, the partys lead anti-corruption investigation unit.
But what is really putting the partys legitimacy at risk is its approach to civil society, including the
repression of rights activists and lawyers like Wang Yu and her colleagues at the Fengrui Law Firm. As Eva
notes, the party is increasingly making use of its extensive propaganda apparatus to name and shame
those who cross the line. In addition to facing a very real risk of detention or even torture, activists now
have to contend with the possibility that they will be paraded onto television and forced to confess their
alleged misdeeds. In May 2014, for example, CCTV broadcast the confession of investigative journalist Gao
Yu. Though Gao later recanted the confession, which she claimed was coerced, she was nonetheless
convicted of leaking state secrets in April of this year and sentenced to seven years in jail. The July
12Peoples Dailyattack on rights lawyers is but the latest example of the partys increased use of official
media outlets to blacken the name of its critics.
Taisu is right that there are too many prior precedents for this sort of thing. But it does seem that, over the
past two years, the party has been reaching for this tool more often.

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The problem is that the use of the media to smear activists cuts both ways. True, such stories do send a
strong message that the party will hit back, hard, against those it views as a threat to one-party rule. On the
other hand, anti-activist diatribes also publicize the partys bare-knuckle tactics while at the same time
highlighting the good works of the rights lawyers and activists whose reputations are being savaged.How
many netizens, upon seeing Wang Yus name in the official media, jumped the Great Firewall to learn
more about her?And how many young Chinese, reading about Wang Yus harsh treatment, shook their
head in sadness over the partys abusive handling of her case?
As the Chinese economy slows, the party is looking for alternative sources of legitimacy: in the absence of
robust economic growth, it needs to find new selling points for its rule. As it does so, the Party should
think about how the public reacts to its heavy reliance on repression. Keith may be right that the recent
crackdown highlights the partys strength. But if current trends continue, the party could find itself, in
terms of reputation, much weaker.
Photo credit: AFP/Getty Images

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10/12

roundtable the future of rule according to law in china

The Rule of Law with Xi-Era Characteristics: Law for Economic


Reform, Anticorruption, and Illiberal Politics
Jacques deLisle

i Jinping and Chinas fifth-generation leadership have given law even


greater pride of place in official rhetoric than their predecessors did.
The October 2014 Fourth Plenum of the 18th Central Committeewidely
dubbed the rule of law plenum declared the rule of law to be a guiding
force in pursuing the Chinese Communist Partys major tasks, including
economic development, political modernization, and realization of Xis
China dream. After the Fourth Plenum, Xi included comprehensively
governing the country according to law among his Four Comprehensives,
which also included other goals that law is expected to advance (deepening
reform, building prosperity, and limiting party misbehavior). These
statements amplified earlier commitments to law, including Xis declaration
in 2012 on the 30th anniversary of the 1982 constitution that China must
firmly establish throughout society, the authority of the constitution and the
law, and the seminal Third Plenums pledges in 2013 to move forward with
building a rule of law country, strengthen rule of law guarantees, and
safeguard the authority of the constitution and the laws.1 This emphasis
on law contrasts with decline in official support for law during much of the
Hu Jintao period, which was marked by an emphasis on informal dispute
resolution, skepticism toward the idea that the courts should be guided
primarily by law, and an apparent sense that law had failed to fulfill its
promise in advancing the regimes aims.
At the same time, one of the most dramatic initiatives of Xis early
tenurea remarkably energetic drive against corruptionhas been
conducted primarily through the partys extralegal discipline inspection
commission under the leadership of Politburo Standing Committee
member and venerable regime trouble-shooter Wang Qishan. Advocates of

jacques delisle is the Stephen A. Cozen Professor of Law and Professor of Political Science,

as well as Deputy Director of the Center for the Study of Contemporary China, at the University of
Pennsylvania. He can be reached at <jdelisle@law.upenn.edu>.

1 Xi Jinping Pledges to Implement Rule of Law, China Daily, December 4, 2012; Communiqu

of the Third Plenum of the 18th Central Committee, November 12, 2013, par. 14; and Central
Committee of the Chinese Communist Party, Decision Concerning Some Major Questions in
Comprehensively Deepening Reform, November 12, 2013, XII.47, IX.30.

[ 23 ]

asia policy

more robust constitutionalism, rights protection lawyers, and law-focused


NGOs have all faced heightened repression since Xi came to power.
These seemingly contradictory trends are consistent with a relatively
coherent conception of laws roles that has deep roots in the reform era
and has been evolving under Xi. Throughout the Deng Xiaoping, Jiang
Zemin, and Hu Jintao periods, law came to be expected to performand
to some extent did performsupporting functions for the regimes core
agenda: providing frameworks for market-oriented, internationally open
development strategies; checking potentially development-subverting
misbehavior, much of it by party-state or state-linked actors; and preempting
pressures for democratic reform. Incipient and likely non-transformative
changes in laws mandate under Xi point toward a legal order that is still
reformist and developmentalist (in its notion of laws role in the economy),
more legalist (that is, giving law a larger role in some, but not all, areas), and
more Leninist (in the sense of being less liberal, more top-down, and more
narrowly instrumentalist). As the sections of this essay examine in turn, the
fifth-generation leaderships strategy appears to imply a large role for law in
economic reform, a limited but perhaps growing role for law in addressing
corruption and other party-state-based threats to economic development
and effective governance, and a mostly, but not entirely, repressive role for
law in handling pressures for political change. As this essay also discusses,
factors beyond Chinese leaders control constrain their options in ruling
the country according to law.
Although the elites plans for legal change may fall far short of full
implementation and are subject to revision, these measuresand the context
in which they must be pursueddo show that there is room in Chinas legal
universe in the Xi era to increase reliance on law, even if anticorruption
campaigns leave little room for law and the political environment is hostile
to liberal notions of legality and their advocates.

Law and Economic Reform


Much of the reinvigorated endorsement of ruling through law focuses
on economic reforms to sustain development in the more challenging
circumstances of a new normal that has entailed a much flatter growth
curve. Tellingly, the agenda for law proffered at the Fourth Plenum was
foreshadowed in the preceding years Third Plenum. The Third Plenum
articulated the Xi leaderships plans for economic change and signaled that
giving markets their promised decisive role would involve reliance on legal
[ 24 ]

roundtable the future of rule according to law in china

frameworks to facilitate voluntary transactions, conducted on an equal


footing among diverse actors, and that would move away from less lawcentric, more political modes for allocating resources and opportunities.
The Third Plenums program implied several ambitious goals for legal
reforms to support a mixed ownership economy, implement a modern
enterprise system for state-owned enterprises, improve protections for
hitherto insecure property rights, and undertake reforms to a financial
system that has continued to distribute capital on noncommercial bases.2
As the Fourth Plenums policy document put it, Chinas socialist market
economy is essentially a rule of law economy.3
Under Xi, law appears slated to persist as a means to redress
behaviorincluding by agents of the party and statethat threatens
to undermine economic policies and economic development. Such
concerns motivate efforts, endorsed at the Fourth Plenum, to tackle local
protectionism in the courtsthe phenomenon of courts being biased
toward local parties in lawsuits, particularly those that are state-owned,
well-connected, or highly important to the local economy. Legal reform
initiatives under Xisome with roots but little progress in earlier
periodshave sought to address these problems. These endeavors include
centralization of court finances, greater roles for higher-level courts in
promoting judges, professionalization of the judiciary (including recruiting
judges who are experienced lawyers and legal experts), reducing courts
discretion in refusing to hear cases, providing greater transparency and
regularity of process, holding judges responsible (for a lifetime) for errors
in their decisions, creating circuit courts of appeal delinked from provinces
and localities, permitting transfer of cases to courts in other jurisdictions,
and including the judiciary among the targets of anticorruption efforts.
Another reform measure required disclosure of attempts by officials to
interfere in individual cases. These concrete promises came in the context of
broad supporting rhetoric. The Third Plenum had vowed to contain power
within a cage of institutions, committed to rely on governing through
law to reform party-building systems, and declared that governing the
country according to law was a means to deepen political structural reform.4

2 Communiqu of the Third Plenum, par. 15.


3 Central Committee of the Chinese Communist Party, Decision Concerning Some Major

Questions, II.4.

4 Communiqu of the Third Plenum, par. 23, 9.

[ 25 ]

asia policy

Law and the Anticorruption Campaign


As some of these ventures imply, law can be a means to tackle what
the leadership purportedly regards as a potentially existential threat of
corruption in the party-state. That much has been evident in the criminal
prosecution of several high-ranking tigers (including Chongqing party
chief and one-time aspirant to top leadership positions Bo Xilai and former
Politburo Standing Committee member and public security system head
Zhou Yongkang) and many more lower-ranked flies. But the legal system
is only one among several instruments for tackling problemsincluding
corruptionthat might imperil the regimes economic priorities or reflect
weakness in the institutions charged with implementing development
strategies and ruling the country. In the Fourth Plenums terminology, law
is an important tool of governance, and the rule of law is inseparable
from party leadership.5 Law enjoys no lexical priority among the methods
for addressing corruption or other fundamental challenges. The prospects
are limited that the leadership will rely exclusively or primarily on
legal means, given its strongly instrumental view of law, the perceived
importance of the corruption problem, the ingrained habits and structures
for addressing corruption within the party, and the advantages of opaque
and informal procedures in obscuring political score-settling or factional
conflict pursued in the guise of attacking corruption.
Still, legal mechanisms are likely to become more prominent in the
drive against corruption. After more than a generation of official statements
praising law, and amid the rule of law rhetoric of the early Xi years, law
has become a source of regime legitimacy. At minimum, forgoing judicial
processes increases the already high likelihood that a crackdown on graft will
be seen as partisan rather than public-spirited. Eschewing legal procedures
risks ceding ground to the regimes many critics in the contentious struggles
to define what law is and what law should do in China. Failing to send many
cases to the courts would damage the fragile credibility of commitments to
ruling by law and to strengthening the judiciary, which the Xi leadership
has touted and in which it has invested some of its own authority. To give
law an obviously marginalized role in handling corruptionwhich clearly
involves criminal behavior and which leaders have identified as an urgent
problemwould signal narrow limits to laws significance. Moreover, any
risks of relying on court proceedings are greatly mitigated when the partys

5 Communiqu of the Fourth Plenum of the 18th Central Committee, October 23, 2014, par. 10, 12.

[ 26 ]

roundtable the future of rule according to law in china

disciplinary system remains the gatekeeper to prosecution and when the top
leadership can control the narrative in high-profile cases, as occurred with
Bo Xilai and Zhou Yongkang.

Law and Containing Pressures for Political Change


Under Xi, laws role in containing threats to the strategy for economic
growth appears to include laws long-standing function of addressing social
disorder that could disrupt the economy. Law also seems ordained to remain
among the regimes major means to cope with pressures for relatively liberal
or democratic political change. Throughout the reform era, these roles for
law have involved a mix of accommodation and repression.
Since the fifth-generation leadership came to power, some legal reforms
have continued the pattern of accommodation. Reforms to laws governing
litigation promise the expansion of citizens access to courts to sue the state
and to permit public-interest litigation in environmental cases, with possible
extension to other fields. The institutional reforms to address local bias and
official interference in court proceedings target problems besetting citizens
cases against state actors. Although a national administrative procedure law
remains a project for the indefinite future, local rules and practices have
created channels for limited citizen participation in making administrative
decisions that affect local economic and social conditions. Although begun
earlier, such developments have continued under Xi and coexist with other
Hu-era practices, including publication of draft rules for public notice and
comment, release of draft legislation for consideration at public hearings,
and open government information initiatives. Reforms to the Legislation
Law in 2015 are expanding formal legal rights to seek review of laws for
unconstitutionality. The official positions on law reform under Xi have
endorsed accountability and limits on state power. Third and Fourth Plenum
pronouncements stated that the laws must win public acceptance as being fair
and just, that the party-state and its agents must not appear to be above the law,
that there must be rule of law government, and that power must be exercised
within authorized limits and, as noted above, a cage of institutions.
Since the fifth-generation leadership came to power, however, these
elements have coincided with changes that have brought laws repressive
roles to the forefront. To be sure, concerns about social instability and
challenges to party-state authority were a prominent feature before Xis
ascension. But under Xi there has been a notably illiberal turn. The
crackdown on rights protection lawyers has been severe and has swept
[ 27 ]

asia policy

broadly, extending even to less radical lawyers, such as Pu Zhiqiang, whose


high-profile representation of dissidents and critical blog posts had long
been tolerated by the authorities. Affiliates of civil society organizations
that seek to promote legal change or to protect civil rightssuch as the HIV
and hepatitis B advocacy organization Yirenping or the five feminists
who focused on issues of domestic violencehave been subjected to police
detention, charges of picking quarrels and provoking troubles (one of the
so-called pocket offenses that have long been a much-criticized feature of
Chinese criminal law), and prosecution for illegal business operations
(which NGOs are often unable to escape because of the difficulty of
registering lawfully as an NGO), disturbing social order (for small-scale
protests or street theater), or tax evasion (including in connection with
receiving funds from foreign sources). More restrictive laws are on the
agenda, including planned legislation to regulate the activities of foreign
foundations, restrict foreign funding for Chinese NGOs, and authorize
measures to enhance state securitythe last of these particularly reflecting
concerns about ethno-nationalist unrest among Uyghurs.
These changes have occurred against the backdrop of an ostensibly
academic but politically charged debate over constitutionalism that
brought echoes, and amplification, of Hu-era rejections of Western-style
constitutionalism and its principles of limited government, separation of
powers, and liberal rightsadvocated by jailed Nobel laureate Liu Xiaobo,
among others. In the same vein, the early Xi-era Central Committee
Document No. 9 of 2013 sought to limit discussion of seven pernicious
ideas, including Western constitutional democracy, universal values, civil
society, neoliberalism, and Western views of journalism. Early 2015 brought
official calls to not teach Western ideasin law as well as in other fieldsto
Chinese students.

Laws Prospects in Xis China


Although the foregoing legal trends may seem inconsistent, they are
reconcilable from a perspective that seems to animate Xi-era approaches to
law and politics. Chinas current leadership appears to be markedly Leninist
in its insistence on the party-states incontestable monopoly on organized
politics and strongly predisposed to perceive signs of societal challenge to its
authority. Within that mindset, reforms to increase legal accountability of
state actors and limit them to their authorized roles are, like the anticorruption
drive, a partial legal cure for the ills of party-state indiscipline. Tolerance for
[ 28 ]

roundtable the future of rule according to law in china

heterodox and critical viewsand legal rules and practices that accord them
some protectionis not, per se, unacceptable to the regime. But those who
appear to a wary leadership to pose incipient threats to cross the line into
organized action or political mobilization face a stern response, including
through legal measures that are an important tool of party rule, wielded by
what the Fourth Plenum communiqu labeledin a disconcerting echo of
Mao-era languagerule of law work teams.6
Even at this relatively early stage, there are signs of limitations to and
pushback against features of the emerging Xi-era version of ruling by law.
China now has a substantial cohort of legally trained elites who are to varying
degrees drawn to more expansive, liberal, and state-constraining notions
of law. They include law professors and public policy intellectuals, who
range from government advisers to near-dissident stars of the blogosphere;
hundreds of thousands of lawyers and many more law degree-holders who
have internalized rule of law ideassometimes through study or practice
abroadand who are frustrated by officials who have little respect for law
and courts that fail to dispense justice under the law; and the much-battered
but remarkably resilient group of rights protection lawyers. The aggrieved in
Chinawhether they are economic winners or losersnow formulate their
complaints in legal terms and seek legal remedies. In Chinas online world,
legal cases have become causes clbres. Chinese netizens often criticize
official views of law, and sometimes embrace expansive views of citizens
rights and legal accountability for the party and state. The 2013 party
directive proscribing discussion of values related to the rule of law and the
2015 admonition against teaching Western ideas have encountered private
ridicule and brave public opposition at law schools, on university campuses,
in the media, in cyberspace, and beyond.
Chinas rulers seem predisposed to give law a limited role in Xis
signature anticorruption drive; determined to reject law-centered efforts
to liberalize, democratize, or otherwise transform Chinas politics; and
committed to using law against those who would organize to push for such
change. But their approach faces limitations. These include limitations
born of this approachs own ambivalence, the legacy of a generation of legal
reforms, and significant resistance from those committed to or with stakes
in more expansive, liberal, or democratic notions of law. Chinas leaders thus
still can make their countrys legal order, but they cannot make it entirely as
they please.

6 Communiqu of the Fourth Plenum, par. 10, 16.

[ 29 ]

8/1/2015

ChinaensuresZhouYongkangtrialstickstothescriptFT.com

Lastupdated:June12,20154:29pm

ChinaensuresZhouYongkangtrialstickstothe
script
TomMitchellinBeijing

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AFP

twassupposedtobeChinassecondtrialofthecenturyinasmanyyears.However,on
ThursdaynightaChinesecourtannouncedthatZhouYongkang,thehighestprofilevictim
ofPresidentXiJinpingsanticorruptioncampaign,hadbeensentencedtolifeimprisonment
afterbeingtriedinsecretonMay22.
Zhouscloseddoortrialandlifesentenceforchargesrelatedtocorruption,abuseofpower
andrevealingstatesecretsdashedexpectationsthattheproceedingswouldbeatleast
partiallytransparent,allowingMrXitoclaimthattheChineseCommunistpartyhadsecured
anunprecedentedconvictionwhilealsoadvancingtheruleoflaw.

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ChinaensuresZhouYongkangtrialstickstothescriptFT.com

Suchexpectationswerelargelybasedonthefactthat,inAugust2013,authoritiesopeneda
smallwindowontothetrialofBoXilai,aZhouallyandrivaltoMrXiduringChinaslast
rotationofpartyandgovernmentleaders.InBoscase,reporterswereallowedtogatherina
separatefacilitynearhiscourtroomwheretheycouldmonitoraneditedtranscriptofthe
proceedings.
Evenwithsuchrestrictions,apartiallypublictrialofZhouwouldhavesetthestageforChinas
mostdramaticcourtproceedingsinceMaoZedongswidow,JiangQing,railedagainst
prosecutorsin1980,famouslysayingthatshewasjustChairmanMaosdogwhobitwhoever
heaskedmetobite.
LikeMadameMao,however,Bodidnotkeeptothescript.Theonetimepartybossof
Chongqinglashedoutatgovernmentwitnessesincludinghiswife,whowasseparately
convictedofkillingaBritishbusinessman,andhisformerpolicechief,sheddingunflattering
lightontheprivatelifeofoneofChinaselitepoliticalfamilies.Boalsodidnotconfessorshow
remorseandlaterappealedhisconviction.
Theparty,manyanalystsbelieve,didnotwanttoriskanysimilarembarrassmentswithZhou,
whoasaretiredmemberoftheallpowerfulPolitburoStandingCommitteeandformerheadof
thecountrysinternalsecurityforcessimplyknewtoomuch.
TheBoXilaitrialendedupbeingverymessyfromthepartyspointofview,saysJoseph
Fewsmith,aChinaexpertatBostonUniversity.Ithadnodesiretorepeatthatexercise,as
goodasitwouldhavebeenforadvertisingtheruleoflaw.
Zhoustrialwasconductedbehindcloseddoorsonthebasisthatitinvolvedfivevery
confidentialdocumentsandanotherconfidentialone,whichheallegedlypassedtoan
unauthorisedpersonidentifiedbytheofficialXinhuanewsagencyasCaoYongzheng.
ButZhouwasultimatelysentencedtojustfouryearsonthatcharge,whichthecourtsaiddid
nothaveveryseriousconsequences.Ontheothercountshewassentencedtosevenyears
imprisonmentforabuseofpowerandreceivedalifesentenceforcorruption.
MrCaohaspreviouslybeendescribedbystatemediaasanoilexecutivewhoseinitialclaimto
famewashisabilitytotreatincurablediseasesandtellpeoplesfortunes.Hecouldnotbe
reachedforcomment.
WhileitisnotclearwhatsecretsZhouleakedorwhatthefortunetellertoldhim,thereisalong
historyinChinaofsuperstitiousemperorsseekingoutpeoplewhocandivinefortunes.
Chineseleadershavealwayslovedthesekindsofpeople,saysZhangLifan,ahistorian.Itisa
historicaltraditionandtheChineseCommunistpartyisnodifferent.Itisasignoftheirlackof
confidence.
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ChinaensuresZhouYongkangtrialstickstothescriptFT.com

WhiletryingZhouinprivatemayhavesavedthepartyfrommoreembarrassingrevelations,it
alsodeniedMrXianopportunitytohighlightthetrialasevidenceofhisadministrations
statedcommitmenttobuildafairandtransparentlegalsystem.
AsecrettrialwasnotXisdesiredresult,itwashisPlanB,saysSteveTsangatNottingham
UniversityintheUK.Apublictrialwouldhavesentaclear,powerfulmessagethattheparty
hadcleaneditselfupandhaddoneitthroughthesocalledruleoflaw.
TheBoXilaitrial
endedupbeingvery
messyfromthepartys
pointofview.Ithadno
desiretorepeatthat
exercise
JosephFewsmith,Chinaexpert
atBostonUniversity

ManypeoplebelievethatZhousrealcrimewastohave,inleague
withBo,opposedMrXisrisetopowerinthefirstplace.Theynote
thatotherelitepoliticalfamilieswhosemembershaveamassed
largefortunesinChinahavenotbeentargetedbytheanti
corruptioncampaign.
InitsannualreporttoChinasparliamentinMarch,theSupreme
PeoplesCourtallegedthatZhouandBohadtrampledontherule
oflaw,underminedpartysolidarityandengagedin[unauthorised]
politicalactivities.

Zhouwastargetedbecausehewasathreat,onepersonwithtiestotheleadershipsays,
addingthattheanticorruptioncampaignappliesdifferentruleswheninvestigatingChinas
mostpowerfulfamilies.Atthatlevel,ifyourenotathreatyourenotatarget.
ZhoustrialwasaboutloyaltytoXiandcontrol,agreesProfTsang.Justicehasgotnothingto
dowithit.Justiceisincidental.
AdditionalreportingbyWanLi
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7/24/2013

A Rising China Needs a New National S

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July 12, 2013, 7:51 p.m. ET

A Rising China Needs a New National Story


To move forward, the country must move on from its emphasis on a century of 'national humiliation'
By ORVILLE SCHELL and JOHN DELURY

Malcolm Greensmith Collection/The Image Works

The capture of a Chinese Imperial Dragon Standard at the Battle of Chusan during the First Opium
War. Painting by Malcolm Greensmith.

Every July, amid festivities and fireworks, the U.S. and France mark their birth as nations.
Accustomed as we are in the West to histories that begin with triumphthe signing of the
Declaration of Independence, the storming of the Bastilleit may seem strange that China, the
fast-rising dynamo of the East, marks the beginning of its journey to modern nationhood in a very
different way: with the shock of unexpected defeat and the loss of national greatness.
Many Chinese date the start of their modern history to Aug. 11, 1842, when the Qing Dynasty, by
signing the Treaty of Nanjing, capitulated to Great Britain in order to end the disastrous First
Opium War (1839-42). It was from this and many other subsequent defeats that China's political
elitesincluding the most progressive 20th-century reformers and revolutionarieswove an
entire national narrative of foreign exploitation and victimization. Even today, this fabric of ideas
continues to hold powerful sway over China's relations with the rest of the world.
wsj.com//SB1000142412788732442

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A Rising China Needs a New National S

The artifacts of China's formative moment can be seen at the Temple of the Tranquil Seas, which
sits on a narrow slice of land in the northwest part of Nanjing on the banks of the Yangtze River. It
was here, in the oppressive heat of August 1842, that Chinese negotiators were forced to sit with
their British counterparts and hammer out the crushing terms of the treaty. The negotiating
chamber in the old temple has now been restored to something resembling its original state. A
nearby exhibition covers the painful history of "China's unequal treaties," which imposed
territorial concessions and onerous indemnities that remained in force until the 1940s.
The Temple of the Tranquil Seas serves as a curious porthole into this bitter past of foreign
incursion and exploitation, from which both the Nationalist and Chinese Communist parties later
constructed their ideologies. As the historical exhibit's first panel explains: "Those unequal treaties
were like fettering ropes of humiliation that made China lose control of her political and military
affairs. It was one of the major causes that rendered China poor and weak in modern history
and has become a symbol of the commencement of China's modern history."
For Chinese reformers, however, there was, in this record of impotence and inferiority, also a
paradoxical promise of redemption. Being overwhelmed by materially stronger but culturally
inferior foreign powersChinese leaders called them "barbarians"may have been a profound
humiliation, but it also served as motivation for China to regenerate itself as a great power. As
Mao Zedong declared in founding the People's Republic in 1949, "The Chinese have always been a
great courageous and industrious nation; it is only in modern times that they have fallen behind.
Ours will no longer be a nation subject to insult and humiliation."
This morality play continues to shape the Chinese imagination. As the last panel in the exhibit
room of the Temple of Tranquil Seas explains: "It is hard to look back upon this humiliating
history. But the abolishment of the unequal treaties has shown the Chinese people's unwavering
spirit of struggle for independence and self-strengthening. To feel shame is to approach courage."
In this authorized version of modern Chinese history, 1842 is Year One. Every Chinese highschool student is expected to know the official narrative dividing Chinese history neatly into preOpium War and post-Opium War periods. It is China's counterpart to the familiar American
exercise of learning the preamble of the Declaration of Independence.
To fully appreciate the trauma of these historical experiences, one must understand not just the
shock of China's defeat in the First Opium War but also the cascade of further defeats that soon
followed. Historically, the Chinese had very little experience in questioning the fundamental
assumptions of their culture and ways of governance. When imperial officials finally began to
understand that their country had become the hapless "sick man of Asia," in the words of Liang
Qichao, a towering intellectual figure at the turn of the last century, they established an abiding
view of China as having been preyed upon by its foreign rivals.
Today, the psychological and cultural habits developed during this dismal era of Chinese history
continue to color and distort China's relations with the rest of the world, especially the U.S., which
has taken the place of Great Britain as the world's superpower. In one of his first speeches as
General Secretary of the Communist Party, President Xi Jinping recollected the "unusual hardship
and sacrifice" suffered by his country in modern times. "But the Chinese people have never given
in," Mr. Xi continued.
The historical memories on display at the Temple of the Tranquil Seas have had positive effects as
well. One can hear their echo in China's determination to rejuvenate itself regain wealth and
power, and become a nation of consequence once again. It is this urge that Mr. Xi tries to
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A Rising China Needs a New National S

encourage by speaking proudly of a "China dream."


Still, it is time for China and the more vociferous propagandists in Beijing to move beyond
declarations about China's "one hundred years of national humiliation." That period has come to
an end. The world has changed, China and the West have changed, and a new narrative is
necessary for China to achieve its declared aim of equality and a "new type of great power
relationship."
Only when China is ready to define itself with a more constructive national story will it be able to
take its place in full partnership with a nation born, in a moment of affirmation, on a distant
Fourth of July.
Mr. Schell is the Arthur Ross Director of the Center on U.S.-China Relations at the Asia Society in New York City.
Mr. Delury is a professor of history at Yonsei University in Seoul, South Korea. They are the co-authors of "Wealth and
Power: China's Long March to the 21st Century," which has just been published by Random House.

A version of this article appeared July 13, 2013, on page C3 in the U.S. edition of The Wall Street
Journal, with the headline: A Rising China Needs a New National Story.

Copyright 2012 Dow Jones & Company, Inc. All Rights Reserved
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8/7/2015

CCPCentralCommitteeDecisionconcerningSomeMajorQuestionsinComprehensivelyMovingGoverningtheCountryAccordingtothelawForward

CCPCentralCommitteeDecisionconcerningSomeMajorQuestionsinComprehensivelyMoving
GoverningtheCountryAccordingtothelawForward
POSTEDONOCTOBER28,2014 UPDATEDONOCTOBER30,2014
Translationcomplete,withthecooperationofJeremyDaum
Passedon23Octoberatthe4thPlenarySessionofthe18thCentralCommitteeoftheChineseCommunistParty
Inordertoimplementthestrategicdeploymentmadeatthe18thPartyCongressandacceleratetheconstructionofa
Socialistruleoflawcountry,the4thPlenarySessionofthe18thCentralCommitteehasconsideredsomemajorquestions
incomprehensivelymovingrulingthecountryaccordingtothelawforward,andmadethefollowingDecision.
I,PersistinmarchingthepathofSocialistruleoflawwithChinesecharacteristics,buildaSocialistruleoflawsystemwith
Chinesecharacteristics.
Rulingthecountryaccordingtothelawisanessentialrequirementandimportantguaranteeforpersistinginanddeveloping
SocialismwithChinesecharacteristics,anditisaninevitablerequirementtorealizethemodernizationofthenational
governingsystemandgoverningability,itaffectsourPartysgoverningandrejuvenatingthecountry,itaffectsthepeoples
welfare,peaceandhealth,anditaffectsthelongtermpeaceandorderofthePartyandthecountry.
TocomprehensivelybuildamoderatelyprosperoussocietyandrealizetheChineseDreamofthegreatrejuvenationofthe
Chinesenation,comprehensivelydeepenreform,perfectanddeveloptheSocialistsystemwithChinesecharacteristics
andraisethePartysgoverningabilityandgovernancelevels,wemustcomprehensivelymoverulingthecountryaccording
tothelawforward.
OurcountryisintheprimarystageofSocialism,thecomprehensiveconstructionofamoderatelyprosperoussocietyhas
enteredadecisivestage,reformhasenteredaphaseofassaultandaregionofdeepwater,internationalcircumstances
arecomplexandmercurial,ourPartyisfacingreform,developmentandstabilitytasksthatareunprecedentedlyheavy,and
contradictions,risksandchallengesinunprecedentednumbers,thepositionofrulingthecountryaccordingtothelawhas
becomemoreprominentintheoverallpictureoftheworkofthePartyandthecountry,anditsrulemoreimportant.Inthe
faceofnewcircumstancesandnewtasks,ourPartymustevenbetterdealwithboththedomesticandinternationalbig
pictures,evenbettersafeguardandutilizethisimportantperiodofstrategicopportunityforourcountrysdevelopment,even
bettercomprehensivelyplansocialforces,balancesocialinterests,adjustsocialrelationshipsandstandardizesocialacts,
toensurethatourcountryssocietyisfullofvitalityaswellaswellorderedduringprofoundchange,torealizeeconomic
development,politicalpeace,culturalglory,socialjusticeandecologicalwelfare,andtorealizethestrategicobjectiveof
ourcountryspeacefuldevelopment,wemustgiveevenbetterreintotheguidinganddrivingroleoftheruleoflaw.
OurPartygiveshighregardtotheconstructionofruleoflaw.Foralongperiod,andespeciallysincethe3rdPlenumofthe
11thPartyCongress,ourPartyhasprofoundlysummarizedthesuccessfulexperiencesandprofoundlessonsofour
countrysSocialistruleoflawconstruction,andhasputforwardthattheruleoflawmustbestrengthened,anditmustbe
ensuredthatdemocracyisinstitutionalizedandlegalizedtoguaranteethepeoplesdemocracy,itmaderulingthecountry
accordingtothelawintoabasicstrategyofthePartysleadingthepeopleandgoverningthecountry,itmadegoverning
accordingtothelawintoabasicmethodforthePartytogovernthecountry,itvigorouslybuiltSocialistruleoflawand
madehistoricalachievements.Atpresent,theSocialistlegalsystemwithChinesecharacteristicshasbeenformed,and
theconstructionofaruleoflawgovernmentisbeingmovedforwardsteadily,thejudicialsystemisincessantlybeing
perfected,andtheruleoflawconsciousnessoftheentiresocietyisclearlystrengthening.
data:text/htmlcharset=utf8,%3Ch3%20style%3D%22margin%3A%200px%200px%204px%3B%20fontfamily%3A%20Cutive%2C%20Georgia%2C%20'Tim

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CCPCentralCommitteeDecisionconcerningSomeMajorQuestionsinComprehensivelyMovingGoverningtheCountryAccordingtothelawForward

Atthesametime,wemustsoberlybeawarethat,incomparisonwiththedevelopmentneedsoftheundertakingsofthe
PartyandtheState,incomparisonwiththeexpectationsofthepopularmasses,andincomparisonwithmovingrulingthe
countryaccordingtothelawforwardandmodernizingourgoverningability,ruleoflawconstructionstilldisplaysmany
problemswhereitisnotadaptedorunsuited,whichismainlymanifestedas:somelawsandregulationshavenotbeenable
tocompletelyreflectobjectivelawsandthewillofthepeople,theyarenotstrongintermsoffocusorfeasibility,thereare
tendenciesofdepartmentalizationinlegislativework,turfbattlesandshiftingofresponsibilityarerelativelyprominentthe
phenomenathatlawsexistbutarenotfollowed,lawenforcementisnotstrictandlawbreakersarentpunishedare
relativelygrave,separationofpowersandresponsibilitiesinthelawenforcementmultiheadedlawenforcementand
selectivelawenforcementstillexist,lawenforcementandthejudiciaryarequiteprominentlynotstandardized,notstrict,
nottransparentanduncivilized,themassesstronglyreactagainsttheproblemsofjudicialunfairnessandcorruptionthe
consciousnessofanumberofmembersofsocietytoabidebythelaw,trustinthelaw,respectthelaw,usethelaw,and
safeguardtheirrightsaccordingtothelawisnotstrong,someStatepersonnelandespeciallyleadingcadres
consciousnessabouthandlingaffairsaccordingtothelawisnotstrong,andtheirabilitiesareinsufficient,anditstilloccurs
thatlawsareknowinglyviolated,oneswordreplacesthelaw,thelawissuppressesthroughpower,andthelawisbentfor
relativesandfriends.TheseproblemsviolatetheprinciplesofSocialistruleoflaw,harmtheinterestsofthepopular
masses,impedethedevelopmentoftheundertakingsofthePartyandthecountry,andwemustspendgreateffortsto
resolvethem.
Tocompletelymoverulingthecountryaccordingtothelawforward,wemustimplementthespiritofthe18thParty
Congressandthe3rdPlenumofthe18thPartyCongress,holdhighthemagnificentbannerofSocialismwithChinese
characteristics,takeMarxismLeninism,MaoZedongThought,DengXiaopingTheory,theimportantThreeRepresents
thought,andthescientificdevelopmentviewasguidance,deeplystudythespiritoftheseriesofimportantspeechesby
GeneralSecretaryXiJinping,persistintheorganicunityoftheleadershipoftheParty,thepeoplemasteringtheirown
affairs,andrulingthecountryaccordingtothelaw,unwaveringlymarchthepathofSocialistruleoflawwithChinese
characteristics,firmlyupholdtheauthorityoftheConstitutionandthelaws,protectthepeoplesrightsandinterests
accordingtothelaw,protectsocialfairnessandjustice,protectnationalsecurityandstability,andprovidepowerfulruleof
lawguaranteestorealizetheTwoCenturiesstruggleobjectiveandtorealizetheChineseDreamofthegreatrejuvenation
oftheChinesenation.
Thegeneralobjectivestocomprehensivelymoverulingthecountryaccordingtothelawforwardareconstructinga
SocialistruleoflawsystemwithChinesecharacteristicsandconstructingaSocialistruleoflawcountry.Thatistosay,
undertheleadershipoftheChineseCommunistParty,persistinginthesystemofSocialismwithChinesecharacteristics,
implementingthetheoryofSocialistruleoflawwithChinesecharacteristics,shapingaperfectsystemoflegalnorms,a
highlyeffectivesystemtoimplementtheruleoflaw,astrictsystemforruleoflawsupervision,andapowerfulsystemof
ruleoflawguarantees,shapingaperfectsystemofintraPartyregulations,persistinginmovingrulingthecountry
accordingtothelaw,governingaccordingtothelawandadministrationaccordingtothelawforwardtogether,persistinthe
unitedconstructionofaruleoflawcountry,aruleoflawgovernmentandaruleoflawsociety,realizingscientific
legislation,strictlawenforcement,judicialfairnessandrespectforthelawamongtheentirepopulation,andmoveforward
themodernizationofthenationalgoverningsystemandourgoverningability.
Torealizethesegeneralobjectives,wemustpersistinthefollowingprinciples.
PersistingintheleadershipoftheChineseCommunistParty.TheleadershipofthePartyisthemostessentialtraitof
SocialismwithChinesecharacteristics,andisthemostfundamentalguaranteeforSocialistruleoflaw.LettingParty
leadershippenetrateintotheentireprocessandallaspectsofrulingthecountrytothelawisabasicexperienceofthe
constructionofourcountrysSocialistruleoflaw.OurcountrysConstitutionhasestablishedtheleadingpositionofthe
data:text/htmlcharset=utf8,%3Ch3%20style%3D%22margin%3A%200px%200px%204px%3B%20fontfamily%3A%20Cutive%2C%20Georgia%2C%20'Tim
ChineseCommunistParty.PersistinginPartyleadershipisabasicneedforSocialistruleoflaw,itiswherethe

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CCPCentralCommitteeDecisionconcerningSomeMajorQuestionsinComprehensivelyMovingGoverningtheCountryAccordingtothelawForward

foundationsandthelifelineofthePartyandtheStatelie,theinterestsandhappinessofthepeopleofallethnicitiesinthe
entirecountryaretiedtoit,anditisaproperelementofmovingrulingthecountryaccordingtothelawforward.Party
leadershipandSocialistruleoflawareidentical,SocialistruleoflawmustpersistinPartyleadership,Partyleadership
mustrelyonSocialistruleoflaw.Onlybyrulingthecountryaccordingtothelawandrigorouslyenforcingthelawunderthe
leadershipoftheParty,willitbepossibletofullyrealizethatthepeoplearemastersoftheirownaffairs,andwillitbe
possibletomovethelegalizationofthelifeofthecountryandthesocietyforwardinanorderlymanner.Governance
accordingtothelawrequiresthatthePartygovernsthecountryonthebasisoftheConstitutionandthelaws,andrequires
thatthePartymanagesthePartyandgovernsthePartyaccordingtointraPartyregulations.WemustpersistintheParty
leadinglegislation,guaranteeinglawenforcement,supportingthejudiciaryandtakingtheleadinrespectingthelaw,unite
thebasicstrategyofrulingthecountryaccordingtothelawwiththebasicmethodofgoverningaccordingtothelaw,unite
thePartysgeneralresponsibilityfortheoverallpictureandcoordinatingallsideswithPeoplesCongresses,governments,
consultativeconferences,trialbodiesandprosecutorialbodiescarryingouttheirdutiesandconductingtheirworkaccording
tothelawandaccordingtotheircharters,unitetheConstitutionformulatedandimplementedbythepeopleunderthe
leadershipofthePartywiththePartypersistinginactingwithinthescopeoftheConstitutionandthelaw,begoodat
makingthePartysstandpointsbecomethenationalwillthroughstatutoryprocedures,begoodatensuringthatthe
candidatesrecommendedbyPartyorganizationsbecomeleadersinStatepoliticalbodiesthroughstatutoryprocedures,be
goodatimplementingPartyleadershipoverthecountryandsocietythroughStatepoliticalbodies,andbegoodatutilizing
democraticcentralistprinciplestosafeguardtheauthorityoftheCentre,andsafeguardtheunityoftheentirePartyandthe
entirecountry.
Persistinginthedominantpositionofthepeople.Thepeoplearethesubjectsofandsourceofstrengthforrulingthe
countryaccordingtothelaw,thePeoplesCongresssystemisthefundamentalpoliticalsystemthatguaranteesthatthe
peoplearethemastersoftheirownaffairs.Wemustpersistinthefactthatruleoflawconstructionisforthepeople,relies
onthepeople,benefitsthepeopleandprotectsthepeople,makeguaranteeingthepeoplesbasicrightsandinterestsintoa
startingpointandstopoverpoint,guaranteethatthepeopleenjoybroadrightsandfreedomsaccordingtothelaw,bearthe
dutiestheyshould,safeguardsocialfairnessandjustice,andstimulatecommonprosperity.Wemustguaranteethatthe
people,undertheleadershipoftheParty,andaccordingtotheprovisionsofthelaw,managetheaffairsofStatethrough
variouschannelsandforms,manageeconomicandculturalundertakings,andmanagesocialaffairs.Wemustmakethe
peopleunderstandthatthelawisapowerfultooltoguaranteetheirownrights,andisabehaviouralstandardthatmustbe
respected,strengthentheconsciousnessintheentiresocietyaboutlearningthelaw,respectingthelaw,abidingbythelaw
andusingthelaw,andensurethatthepeoplemaster,respectandusethelaw.
Persistinginthefactthatallareequalinthefaceofthelaw.EqualityisabasiccharacteristicofSocialistlaw.Any
organizationorindividualmustrespecttheauthorityoftheConstitutionandthelaws,andmustactwithinthescopeofthe
Constitutionandthelaws,theymustallexercisetheirpowersandrights,andcarryouttheirdutiesandresponsibilities
accordingtothelaw,nonemayhaveprivilegesoutsideoftheConstitutionandthelaws.Wemustsafeguardtheunity,
dignityandauthorityoftheStatelegalsystem,andrealisticallyguaranteetheeffectiveimplementationoftheConstitution
andthelaws,wemayabsolutelynotpermitanypersontolettheirwordreplacethelaw,usetheirpowertosuppressthe
law,orbendthelawforfriendsorrelativesunderanyexcuseandinanyway.Wemustmakestandardizingandrestraining
publicpowerintoafocuspoint,expandsupervisionstrength,ensurethattheremustberesponsibilitywherethereispower,
theremustbesupervisionovertheuseofpower,andthatlawbreakingmustbepunished,firmlycorrectingactswherelaws
arenotfollowed,lawenforcementisnotstrict,andlawbreakersarenotpunished.
Persistinginintegratingrulingthecountryaccordingtothelawandrulingthecountryaccordingtovirtue.Stateandsocial
governancerequirethatbothlawandvirtueplayaroletogether.Wemustpersistingraspingtheruleoflawononehand,
andtheruleofvirtuewiththeotherhand,forcefullycarryforwardtheSocialistcorevaluesystem,carryforwardChinas
data:text/htmlcharset=utf8,%3Ch3%20style%3D%22margin%3A%200px%200px%204px%3B%20fontfamily%3A%20Cutive%2C%20Georgia%2C%20'Tim
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CCPCentralCommitteeDecisionconcerningSomeMajorQuestionsinComprehensivelyMovingGoverningtheCountryAccordingtothelawForward

aswellastheeducationalroleofvirtue,reflectmoralconceptsintheruleoflaw,strengthenthestimulatingimpactoflaw
onmoralityconstruction,nourishthespiritofruleoflawwithvirtue,strengthenthesupportingroleofvirtueinlegalculture,
realizethatlawandvirtuecomplementeachother,andthattheruleoflawandtheruleofvirtueeachmakeeachother
appearmorebrilliant.
PersistinginstartingfromChinasreality.Thepath,theoreticalsystemandstructureofSocialismwithChinese
characteristicsarefundamentallodestarsforcomprehensivelymovingrulingthecountryaccordingtothelawforward.We
muststartfromourcountrysbasiccircumstances,adapttotheincessantdeepeningofreformandopeningup,summarize
andusethesuccessfulexperienceofthePartyleadingthepeopleincarryingoutruleoflaw,focusonmajortheoreticaland
practicalquestionsintheconstructionofSocialistruleoflaw,moveruleoflawtheoryinnovationforward,developSocialist
ruleoflawtheorythatisadaptedtoChinasrealities,hasChinesecharacteristics,andreflectssocialdevelopmentlaws,to
providetheoreticalguidanceandacademicsupportforrulingthecountryaccordingtothelaw.Drawfromthequintessence
ofChineselegalculture,learnfrombeneficialexperiencesinruleoflawabroad,butwecanabsolutelynotindiscriminately
copyforeignruleoflawconceptsandmodels.
Comprehensivelymovingrulingthecountryaccordingtothelawforwardisasystemicproject,itisabroadandprofound
revolutionintheareaofStategovernance,andrequireslongterm,arduousefforts.ComradesintheentirePartymusteven
moreconsciouslypersistinrulingthecountryaccordingtothelaw,andmoverulingthecountryaccordingtothelaw
forwardevenmorefirmly,theymuststrivetorealizethelegalizationofallworkaffairsoftheState,andprogress
incessantlytowardstheconstructionofaruleoflawChina.
II,PerfectaSocialistlegalsystemwithChinesecharacteristics,withtheConstitutionatthecentre,strengthenthe
implementationoftheConstitution.
Lawsareimportanttoolstorulethecountry,benevolentlawsarethepreconditionforgoodgovernance.Toconstructa
SocialistlegalsystemwithChinesecharacteristics,wemustpersistingivingprecedencetolegislation,givingreintothe
guidinganddrivingroleoflegislation,andgraspthecrucialmatterofraisinglegislativequality.Wemustscrupulouslyabide
bytheideasofputtingpeoplefirstandlegislatingforthesakeofthepeople,implementtheSocialistcorevaluesystem,
ensurethateverypieceoflegislationconformstothespiritofthelaw,reflectsthepopularwillandisendorsedbythe
people.Wemustlettheprinciplesoffairness,justiceandtransparencypenetrateintotheentireprocessoflegislation,
perfectlegislativesystemsandmechanisms,persistinsimultaneouslycarryingoutlegislation,revision,abolitionand
interpretation,strengthenthetimeliness,systemicnature,focusandeffectivenessoflawsandregulations.
(1)Completingconstitutionalimplementationandsupervisionsystems.TheConstitutionistheconcentratedreflectionof
thewillofthePartyandthepeople,andisthefundamentallawformedthroughaprocessofscientificdemocracy.To
persistinrulingthecountryaccordingtothelaw,wemustfirstandforemostpersistinrulingthecountryaccordingtothe
Constitution,topersistingoverningaccordingtothelaw,wemustfirstandforemostpersistingoverningaccordingtothe
Constitution.Thepeopleofallethnicitiesintheentirecountry,allStatebodiesandarmedforces,allpoliticalpartiesandall
socialorganizations,allenterprises,undertakingsandgroupsmustconsidertheConstitutionasthebasicbehavioural
norm,andbearthedutyofupholdingthedignityoftheConstitutionandguaranteeingtheimplementationofthe
Constitution.AllactsviolatingtheConstitutionmustbepunishedandcorrected.
PerfecttheconstitutionalsupervisionsystemoftheNationalPeoplesCongressanditsStandingCommittee,complete
proceduresandmechanismsforconstitutionalinterpretation.Strengthenfilingandreviewsystemsandcapacitybuilding,
bringallnormativedocumentsintothescopeoffilingandreview,cancelandcorrectnormativedocumentsthatviolatethe
Constitutionorthelawaccordingtothelaw,itisprohibitedthatlocalitiesformulateandissuedocumentsofalegislative
data:text/htmlcharset=utf8,%3Ch3%20style%3D%22margin%3A%200px%200px%204px%3B%20fontfamily%3A%20Cutive%2C%20Georgia%2C%20'Tim
nature.

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TheComingChineseCrackupWSJ

Thiscopyisforyourpersonal,noncommercialuseonly.Toorderpresentationreadycopiesfordistributiontoyourcolleagues,clientsorcustomersvisit
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TheComingChineseCrackupWSJ

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AprotesterispushedtothegroundbyaparamilitarypolicemanMarch5,2014,inBeijingbeforetheopeningoftheNational
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Conversation

Is China Really Cracking Up?


A ChinaFile Conversation
Suisheng Zhao, Arthur R. Kroeber, Ho-fung Hung, Howard W. French, Peter Mattis, Ryan Mitchell, Chen Weihua March 11, 2015

The ChinaFile Conversation is a weekly,


real-time discussion of China news, from a
group of the worlds leading China experts.

Suisheng Zhao
Suisheng Zhao is Professor and
Director of the Center for
China-U.S. Cooperation at
Josef Korbel School of
International Studies,
University of Denver. He was
a Campbell National Fellow at
the Hoover...
More

Arthur R. Kroeber
Arthur R. Kroeber is Managing
Director of GaveKal
Dragonomics, an independent
global economic research firm,
and Editor of its journal, China
Economic Quarterly. He is a
non-resident senior fellow of...
More

Lintao ZhangGetty Images

A guard at the entrance of the Great Hall of the People during the second plenary session of China's
parliament on March 8, 2015.

On March 7, The Wall Street Journal published an opinion piece by David Shambaugh arguing that
the endgame of Chinese communist rule has now begun...and it has progressed further than many
think. Shambaugh laid out a variety of signs he believes indicate a regime on the cusp of failure. Do
you agree with his assessment? Why or why not? The Editors

Ho-fung Hung
Ho-fung Hung is an Associate
Professor of Sociology at
Johns Hopkins University. He
researches global political
economy, protest, and
nationalism. He is the author
of the award-winning Protest
with...
More

Responses
Tuesday, March 10, 2015 - 11:08pm

agree with Shambaugh to the extent that the C.C.P. regime is in crisis.

But the regime has muddled through one crisis after another, including the
catastrophes of the Cultural Revolution and the Tiananmen crackdown,
by tackling its symptoms. It is too difficult to predict the arrival of the cracking

Suisheng Zhao

Howard W. French
Howard W. French is an
Associate Professor at the
Columbia Journalism School,
where he teaches journalism
and photography. He was a
freelance reporter for T he
Washington Post, and many
other...
More

up moment now.
The current crisis came after more than three decades of market-oriented
economic reform under the one-party rule that has produced a corruptive state
capitalism in which power and money forge an alliance. The government officials and senior managers
in state-owned enterprises have formed strong and exclusive interest groups to pursue economic gains.
China ranks among the countries of the highest income inequality in the world at a time when China has
dismantled its social welfare state, leaving hundreds of millions of citizens without any or adequate
provision of healthcare, unemployment insurance, cost of education, and a variety of other social
services. In the meantime, China has become one of the world's most polluted countries. The crisis has
worsened as Chinas economic growth is slowing down and could come to a pause or even enter a
http://www.chinafile.com/conversation/china-really-cracking

Peter Mattis
Peter Mattis is currently a
Fellow with T he Jamestown
Foundation and a visiting
scholar at National Cheng-chi
University's Institute of
International Relations in

1/14

7/27/2015

Is China Really Cracking Up? | ChinaFile


T aipei. Formerly editor of
China...
More

downturn. The huge social, economic, and environmental costs China has paid for its rapid economic
growth could eventually derail China from its growth path. As the worsening economic, social, and
environmental problems cause deep discontent across society and lead many people to take to the
streets in protest, China has entered a period of deepening social tensions. Apparently, the Chinese
government is frightened and has relied more and more on coercive forces. The cracking up moment
could ultimately come when the economic growth has significantly slowed down and the government is
unable to sustain the regimes legitimacy with its economic performance.
While scholars such as Shambaugh are warning the coming of cracking up, President Xi Jinping is
unlikely unaware of the danger of possible collapse and has been doing his part to prevent it from

Ryan Mitchell
Ryan Mitchell is currently a
Mellon Foundation Humanities
Fellow and Ph.D. in Law
candidate at Yale University.
Previously, he worked as an
attorney on Chinese human
rights and legal development...
More

happening. Opposite from the prescription by liberal scholars and Western leaders, Xi has seen that the
key to keeping the C.C.P. in power is to further empower the authoritarian state led by the Communist
Party, reflecting the long struggle of the Chinese political elites in building and maintaining a powerful
state to lead Chinas modernization. Lucian Pye famously observed that China suffered a "crisis of
authority" in a deep craving for the decisive power of "truly effective authority" ever since the collapse
of the Chinese empire in the 19th century. Chinese elite attributed Chinas modern decline partially to

Chen Weihua

the weakening of the state authority. The authority crisis called for the creation of an authoritarian state
through revolution and nationalism. The Chinese communist revolution was a collective assertion for the

Chen Weihua is a columnist


and chief Washington
correspondent for China Daily
and the Deputy Editor of
China Daily USA. He was a
Knight Fellow at Stanford
University from 2004 to
2005, a World Press...
More

new form of authority and a strong state to build a prosperous Chinese nation. The very essence of the
C.C.P. legitimacy for the founding of the P.R.C. was partly based upon its ability to establish a
powerful state as an organizing and mobilizing force to defend the national independence and launch
modernization programs.
To rectify his predecessors overemphasis on the transformation of China through decentralization
reforms that weakened the states authority and the C.C.P. central leadership, President Xi has made
concentrated efforts to over-empower the authoritarian state. Repeatedly warning against
Westernization, Xi emphasizes a unified national ideal of the China Dream and has allowed the

Related Reading
"Is the Chinese Dragon Losing its Puff?" Sydney
M orning Herald, M arch 16, 2015

security/propaganda axis to tighten up controls on expression of different political ideologies and


opinions. Taking strong measures to strengthen central Party and government authority, he set up new

"Q. and A.: David Shambaugh on the Risks to Chinese


Communist Rule," The New York Times, M arch 15, 2015

and powerful small leadership groups, such as the Central National Security Commission and the

"Shambaugh China Essay in Shambles," China Daily,


M arch 13, 2015

Comprehensive Deepening Economic Reform Small Group, with himself as the head. Looking to Mao
Zedong for inspiration to manage the country, he launched the largest rectification and mass line
campaigns in decades to fight corruption. Describing Mao as a great figure who changed the face of
the nation and led the Chinese people to a new destiny, Xi has emerged as a champion of the partystate power, with himself at the top as a strongman.
Whether or not empowering the authoritarian state is a long-term solution to the current crisis, it seems
to have targeted some of its symptoms and temporarily silenced its liberal critics inside China. As a
result, it may help postpone the arrival of a cracking up moment at least for now. Suisheng Zhao

"Watching the New Emperors," CHINET, M arch 12,


2015
"Sorry America: China is NOT Going to Collapse," The
National Interest, M arch 10, 2015
"Why Is Shambaugh's Suddenly Shouting About 'China's
Collapse'?" The Global Times, M arch 9, 2015 (Chinese
only)
"The Coming Chinese Crackup," The Wall Street Journal,
M arch 6, 2015
"Here Is Xis China: Get Used To It," ChinaFile,
December 11, 2014

Wednesday, March 11, 2015 - 11:38pm

disagree with David Shambaugh. Neither China nor its Communist Party
is cracking up. I have three reasons for this judgment. First, none of the

"China's Long History of Defying the Doomsayers," The

Arthur R. Kroeber

Atlantic, August 30, 2012

factors Shambaugh cites strongly supports the crack-up case. Second,


the balance of evidence suggests that Xi Jinping's government is not weak and
desperate, but forceful and adaptable. Third, the forces that might push for
systemic political change are far weaker than the Party.

Share

Shambaugh thinks the system is on its last legs because rich people are moving
assets abroad, Xi is cracking down on the media and academia, officials look bored in meetings,

724

303

corruption is rife, and the economy is at an impasse. This is not a persuasive case. True, many rich
Chinese are moving money abroad, both to find safe havens and to diversify their portfolios as China's
growth slows. But in aggregate, capital outflows are modest, and plenty of rich Chinese are still
investing in their own economy. Following an easing of rules, new private business registrations rose
45% last yearscarcely a sign that the entrepreneurial class has given up hope.
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The crackdown on free expression and civil society is deeply distressing, but not necessarily a sign of
weakness. It could equally be seen as an assertion of confidence in the success of China's authoritariancapitalist model, and a rejection of the idea that China needs to make concessions to liberal-democratic
ideas to keep on going. It is also related to the crackdown on corruption, which Shambaugh wrongly
dismisses as a cynical power play. Corruption at the end of the Hu/Wen era had got out of control, and
posed a real risk of bringing down the regime. A relentless drive to limit corruption was essential to
stabilize the system, and this is precisely what Xi has delivered. It cannot work unless Xi can
demonstrate complete control over all aspects of the political system, including ideology.
As to the economy and the reform program, it is first worth pointing out that despite its severe
slowdown, China's economy continues to grow faster than that of any other major country in the world.
And claims that the reform program is sputtering simply do not square with the facts. Last year saw the
start of a crucial program to revamp the fiscal system (which has led to the start of restructuring local
government debt), first steps to liberalize the one-child policy and hukou system (discussed for years
but never achieved by previous governments), important changes in energy pricing, and linkage of the
Shanghai and Hong Kong stock markets. News reports suggest that we will soon see a program to
reorganize big state owned enterprises (SOEs) under Temasek-like holding companies that will focus
on improving their flagging financial returns. These are all material achievements and compare favorably
to, for instance, the utter failure of Shinzo Abe to progress on any of the reform agenda for Japan he
outlined two years ago.
Finally, there is no evidence that the biggest and most important political constituency in Chinathe
rising urban bourgeoisiehas much interest in changing the system. In my conversations with members
of this class, I hear many complaints, but more generally a satisfaction with the material progress China
has made in the last two decades. Except for a tiny group of brave dissidents, this group in general
displays little interest in political reform and none in democracy. One reason may be that they find
uninspiring the record of democratic governance in other big Asian countries, such as India. More
important is probably the fear that in a representative system, the interests of the urban bourgeoisie (at
most 25% of the population) would lose out to those of the rural masses. The Party may well be
somewhat insecure, but the only force that might plausibly unseat it is more insecure still.
Predictions of Chinese political collapse have a long and futile history. Their persistent failure stems
from a basic conceptual fault. Instead of facing the Chinese system on its own terms and understanding
why it workswhich could create insights into why it might stop workingcritics judge the system
against what they would like it to be, and find it wanting. This embeds an assumption of fragility that
makes every societal problem look like an existential crisis. As a long-term resident of China, I would
love the government to become more open, pluralistic and tolerant of creativity. The fact that it refuses
to do so is disappointing to me and many others, but offers no grounds for a judgment of its weakness.
Seven years ago, in his excellent book China's Communist Party: Atrophy and Adaptation,
Shambaugh described the Party as "a reasonably strong and resilient institution....To be sure, it has its
problems and challenges, but none present the real possibility of systemic collapse." That was a good
judgment then, and it remains a good judgment now. Arthur Kroeber

Thursday, March 12, 2015 - 10:35am

agree with Shambaugh that there are serious cracks in the C.C.P.

Ho-fung Hung

regime, not only because of his arguments and evidence but also because
of his deep knowledge about and long-time access to the Partys elite.
Whether these cracks will lead to the end of C.C.P. rule, nevertheless, is
difficult to predict. The prediction about a C.C.P. endgame this time might end
up like the many unrealized predictions before. It may also be like the story of
cry wolf: The wolf didnt come the first two times but finally came when
nobody believed it would come. The bottom line is, the C.C.P. is facing very tough challenges that it
has not been seeing for decades. Whether and how it can weather them is uncertain.
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First, Xi is a leader who came to power with very few sources of legitimacy. Mao and Deng were
among the founding fathers of the Peoples Republic. Both Jiang Zemin and Hu Jintao were handpicked
by Deng and got the backing of party elders at the moment of coming to power. Xi, despite his
princeling background, is the first leader who was chosen out of a delicate compromise among party
factions.
In the midst of Xis rise to power, there were, among others, the mysterious Wang Lijun incident,
followed by the unusual downfalls of Bo Xilai and Zhou Yongkang. What Wang Lijun actually told the
American diplomats during his sleepover in the U.S. Consulate in Chengdu, and what sensitive
information he eventually conveyed to the central government is still unknown. But the rumor that he
revealed, out of self-protection, a plot by other princelings to get rid of Xi through a coup does not
sound too out of whack. If this is true, then Xis frenetic purge of other factions in his anti-corruption
campaign makes sense as a desperate move to whip the disrespectful elite to submission through
creating a culture of terror within the Party.
Xis purges surely make new enemies and make most of the Party elite feel deeply anxious about their
fortunes. It wont be so surprising if some of those anxious elite conspire to find chance to depose Xi.
Such internal coup against unpopular leader is not alien to the C.C.P., with precedents of the downfall
of the Gang of Four and Hua Guofeng in the late 1970s.
Second, the Partys internal rift is unfolding at the worst possible time as far as the economy is
concerned. To be sure, a 7.4 percent annual growth rate is an enviable number to many other emerging
economies. But this figure needs to be understood in Chinas context. With the heavy and soaring
indebtedness of the Chinese economy and the ever aggravating unemployment problem, the Chinese
economy needs higher-speed growth to stay above water.
The debt hangover of the 2008-09 stimulus is worrying. Total debt to GDP ratio of China jumped from
147 percent in 2008 to over 282 percent now, according to a recent McKinsey report, and it is still
growing. It is a dangerously high level compared to other emerging economies. The economic
slowdown will lead to profit decline for companies and revenue shortfall for local governments,
increasing their difficulty in servicing and repaying debts. A vicious cycle of defaults and further growth
deceleration can turn a slowdown into something uglier. Hard landing or soft landing, the Chinese
economy is not flying any more. Chinas social tranquility and elite compromise over the last two
decades, both built upon a high-flying economy, could unravel.
It is well possible that the C.C.P. elite, no matter how much they dislike Xi and his anti-corruption
campaign, will still prefer not to rock the boat, as they are well aware that they are nobody without the
protection of the party-state institution, and their privileges will be under far greater threat in the wake
of a regime collapse. It is also possible that after all the years of pacification and domestication ever
since Tiananmen, Chinas civil society and dissidents became so timid and cornered that they are
incapable of taking advantage of any cracks in the regime.
Is Xi successfully increasing his grip of power through the anti-corruption campaign, or does his rule still
suffer from inadequate legitimacy behind the mask of invincibility? Only time can tell. But besides the
endgame of C.C.P. rule, we should also ponder at another possible scenario that can come out from
the current elite rift and economic landing: the rise of a hysteric and suffocating dictatorial regime which
effectively maintains its draconian control over a society gradually losing its dynamism. Perhaps we can
call this hypothetical regime a North Korea lite. Ho-fung Hung

Thursday, March 12, 2015 - 12:05pm

ith respect to David Shambaugh, what has interested me most in


this matter is the response to what amounts to a carefully hedged

Howard W. French

prognostication, rather than his specific arguments in and of

themselves.

It has been fascinating to watch what strikes this observer, at least, as a certain
betrayal of anxiety in the efforts of some of those who have rushed to take
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Shambaugh down, or at least refute and discredit his arguments. The notes
have ranged from how dare he? to who does this person think he is? to, in
some of the more breathless reactions, attacks on his motives: he is a pawn or
at least an unwitting agent of this or that occult force. Along the way,
Shambaughs good faith has been questioned; he becomes an actor on behalf
of America, or the West, which is said to be always trying bring China down,
or cast its political and economic model in doubt. (This extends, of course, to the limited Chinese
responses we have seen so far, such as that of the Global Times, which has responded with vilification,
forgetting perhaps that for decades a cherished recurrent theme in Chinese propaganda has been the
fundamentally flawed nature of Western democracy or capitalism, and, of course, its inevitable
demise.)
Before getting down to details, perhaps the first thing to be said is that it is impossible to appreciate
Shambaughs perspective without understanding where he comes from. Few among the first wave of
critics have credited him for his scholarship, other than to note that he is prominent or respected within
the academy. Few have explored the actual nature of his work over the years, or the findings he has
made in previous writings, such as Chinas Communist Party: Atrophy and Adaptation, a careful
study of how the Party responded to the shock of the demise of the Soviet Union and began reinventing
itself. Shambaugh gives enormous credit to the C.C.P. for these efforts, but it is clear by the time he
published his subsequent book, China Goes Global: The Partial Power, that the scholar had come
to the view that in many ways we have overestimated Chinas strengths and underestimated its
weaknesses. This is all worth spelling out because even if Shambaughs crackup theory surprised
you, it has clearly not come out of thin air; rather, it is the latest wrinkle in the evolving views of an
earnest scholar.
Perhaps the next most important point to be made, and it has not been heard enough in this discussion,
is that no one knows where China (or the world) is heading, say twenty, or even ten years down the
road. Mao oversaw rapprochement with the U.S. in order to counter the Soviet Union, and this can be
said to have brought capitalism to his country, which was clearly not his aim. Deng embraced
capitalism, and that can be said to have led to a near existential crisis for the Party around the issue of
democratization. The U.S. embraced China also in order to balance the Soviet Union, as well as, a bit
later, to seek markets. This ended up in the creation of what now appears ever more like a peer rival,
after a brief period of monopolarity in the world. Unintended, even undesirable consequences are the
name of the game in matters of state and in international affairs, and however assertive and determined
Xi Jinping may appear to us now, in the early phases of his rule, it is a safe bet that his drive to realize a
Chinese dream will produce many things he could never have dreamed ofor desired. It is also for the
least plausible that Xis remarkable apparent confidence is a kind of compensation for deep anxiety at
the top in China: a recognition that the country is walking a tightrope.
I defer to others on the specifics of Chinas known challenges, but a few points seem fairly obvious.
The early, and one might say easy, phase of Chinas takeoff is over. That period consisted in large
measure of stopping doing stupid things and inflicting damage on oneself. Moving forward now from
here becomes exponentially more difficult. This means finding a way to sustain relatively high growth
rates, when almost everything points to a natural, secular slowdown. It means coping with
environmental challenges on a scale never seen before. It means dealing with the emergence of a middle
class, and everything that political science suggests about the difficulties that this poses for authoritarian
regimes. It means finding a way through the middle income trap. It means restraining corruption that in
this view is, if anything, even worse, meaning more systemic, than commonly recognized. It means
coping with the accelerating balancing of nervous neighbors. It means somehow coping with issues of
ethnic and regional tensions and stark inequality. It means drastic and mostly unfavorable changes in
demography. And it means doing all of these things, and facing any number of other serious challenges
that space doesnt allow one to detail here, without the benefit of a coherent or appealing ideology
other than nationalism and, one says tentatively, budding personality cult-style leadership.
We dont know how this is going to turn out. For every success one can point to involving China, it is
easy to point to at least one stark and serious problem, or potential failing. I dont share Shambaughs
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confidence in predicting the demise of the Chinese Communist Party, but it does not strike this reader
as a reckless prediction. It should not surprise us, and neither should its opposite, Chinas continued
relative success. Such is the degree of uncertainty we must all live with. Howard French

Thursday, March 12, 2015 - 4:35pm

iven David Shambaughs past arguments about the resilience and


adaptability of the Chinese Communist Party (C.C.P.) as well as

Peter Mattis

research-based approach for nearly everything he writes, I confess


to being a bit stunned at his turnaround on the prospects of the C.C.P.
Nevertheless, Dr. Shambaugh identifies reasons for the persistence of crises
within the C.C.P., not its doom. Whether any of future crisis within the C.C.P.
is capable of bringing the machinery of Chinese government down is as
unpredictable as it may be foreseeable. By prediction, I mean a specific time
and trigger. By foreseeable, I mean a distinct possibility that should be recognized among the scenarios
for Chinas future.
In an analogy I have used before, China may be like a corked champagne bottle. From the outside, all
is placid and calm. If opening the bottle is like a leadership crisis, only when the bottle is opened will
you find out how much pressure has been building inside and how serious the spillage will be. The
signs of pressure may be observable, like how much shaking the bottle has suffered; however, the result
cannot be known until the cork is popped.
We have ample evidence to suggest that, despite greater institutionalization in leadership selection and a
more centralized party bureaucracy, Chinese elite politics is fierce, cutthroat, and prone to providing
exciting contingencies. From the perspective of 2015 and the long run-up to Xi Jinpings certain
coronation, it is easy to forget the contingency that gave Xi the opportunity to rise. Had Hu Jintao not
somehow neutralized Jiang Zemin and ousted Shanghai Party Secretary Chen Liangyu for corruption in
fall 2006, it is impossible to conceive how Xi would have become the party general secretary. Why
should we think the politics that allowed Xi to rise from his unenviable position as the last alternate
Central Committee member selected to party chief has dissipated suddenly with his ascension?
The basic opacity of Chinese politics that created the impetus for factionalism also has not changed. In
a low information environment, as Lucian Pye argued long ago, party cadre have to band together to
gather information and act (or not) in the ways that maximize their chances for survival and
advancement. Perhaps the greatest evidence of this opacity is that party officials are availing themselves
of the commercial security/intelligence sector to spy on one another, to acquire both information and
leverage. Two of Bo Xilais greatest crimes were attempting to subvert the Chinese governments
secure red phone system and attempting to find willing acolytes in the State Secrets Bureau. Part of the
shakeup in the security services has to do with the blatant violation of norms developed early in the
Reform Era that the intelligence services should be removed from domestic politics.
Much has been made of Xis status among and solidarity with the princelings; however, if family ties are
important, then why should the sons and daughters of Chinas revolutionary generation have solidarity?
The evils their parents inflicted upon one another as they struggled to survive in the chaotic politics of
Mao Zedongs China can hardly be called a recipe for harmony. Yang Shangkun and Deng Xiaoping
had close ties going back to the early days of the Chinese Revolution; yet, Yang and his brother were
ousted amid rumors of an attempted coup against Jiang Zemin while Deng was wasting away and after
having supported the Southern Tour that restarted reform after the Tiananmen Crisis. Fifteen years
ago, Cheng Li identified more than half a dozen factions among the princelings, and no satisfactory
explanation has ever been given for why they would suddenly have congealed.
For these and many other reasons, I think leadership splits and resulting crises are foreseeable, but not
predictable. They could arise from policy differences, economic shocks, how to address unrest,
succession at the next party congress, etc. The more the C.C.P. maintains collective leadership, the
more stable the party is likely to be as its elites can more readily find common ground and walk back
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from the brink even as policymaking is harder. The more personalized Xi makes the party, the more
vulnerable the party will become to fights among the leadership, especially after he leaves the political
scene.
The consequences of these crises and whether the C.C.P. will fall are more difficult to estimate in
advance, because the nature of leadership divisions, such as the unity of the military and security
services, in a crisis cannot be foreseen. Nor do we know what impact the Peoples Liberation Armys
isolation from the party relative to the years of dual party-army elites will have on its behavior. If the
C.C.P. collapses under the strain of a leadership crisis, it will be because problems rapidly pile up or
cascade across the country. As Shakespeare wrote, When sorrows come, they come not single spies
but in battalions.
The C.C.P.s collapse is just one potential Chinese future, and one that cannot be dismissed out of
hand given the probable persistence of elite conflict. Nor would its collapse necessarily be a good thing.
Alternatives to the C.C.P. include anarchy and military dictatorship, and even a return to Maos kind of
tyrannical and oppressive leadership. Chinas future is a problem to consider soberly and seriously
without reveling in the potential for the C.C.P.s demise, as David Shambaugh has attempted. If he is
right, the bigger question about the partys fall is what to do in response. A foreseeable challenge is one
that requires preparation. Peter Mattis

Friday, March 13, 2015 - 11:51am

n a 1948 article , Xi Zhongxun was quoted saying the most lovable


(keai / ) qualities of us Communist Party folks are devotion and
sincerity (zhongcheng laoshi / ). Almost 70 years later, his
son, Xi Jinping, has taken this idea and run with it. Speaking in 2013 to Party
members in Liaoning, for example, he said, leading cadres must treat the

Ryan Mitchell

masses with devotion and sincerity. In a Peoples Daily article summarizing


Xis guidanceintended to help his audience avoid being targeted for having
ideological or work style problemsthe formula devotion and sincerity is
used 12 times in the space of about half a page. The full set phrase has continued to be quite prominent
in the many official media reports describing the Partys ongoing anticorruption and internal governance
campaigns. It shows all the signs of a deliberately chosen ideological formulation, or tifa ().
Towards the beginning of his essay, David Shambaugh remarks on this ritual of parroting back official
slogans, characterizing it as a theatrical veneer, and little more than an act of symbolic compliance.
Indeed, one of the five reasons he gives for impending regime change is how bored officials must be
while sitting in meetings listening to these formulations being endlessly repeated. Yet for many within the
Party, tifa are anything but boring: they are a constant reminder of lines not to be crossed, positions to
be advocated, opportunities for advancement (or, especially since the Deng era, enrichment), and
expressions of the current balance of power. They are visible expressions of political capital and
materialized authority.
Thats all to say that, even in a one-party system, politics can be a domain of meaningful and engaging
personal involvement. Xi the Younger, sitting in his cave in Shaanxi during the Cultural Revolution, no
doubt had plenty of time to decide just to which formulations the Party needed to pay more attention.
Its no accident that he has alighted on a few of his fathers along with others from various sources.
There is no equivalent form of behavior in regimes that are truly ideologically sterile, such as the more
straightforward kleptocracies targeted by the Color Revolutions. Esoteric as it seems for many of us,
this is a kind of representation.
Whats being represented, of course, is not the Will of the People as embodied in a referendum, or in
the choice of elected representatives. Political theorists can (and do) argue endlessly about just what
the People are, and to what extent they can have a Will. But what we all can agree on is that
societies look one way or another. For Xi Jinping to bring back an idealized version of the devoted
and sincere Party cadre devoting himself to the people is not just a calculated strategyit clearly
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represents an appeal to a widely-shared set of aesthetic values. There is a whole subfield of political
theory called political aesthetics, but its not necessary to go into the weeds of that discipline at least
to consider its biggest takeaway: authority contains both rational and irrational factors, and these are
messily intertwined.
Of course, Max Weber said much the same thing nearly a century ago when he divided legitimate
authority into rational, traditional, and charismatic forms. Importantly, he viewed most societies as
embodying all three to various extents. History is also full of charismatic leaders who have founded
lasting states. An honest look at U.S. history, as well, shows that Lincoln and F.D.R. were not just
especially competent public servantsthey radically reformed their political systems in part by means
of personal, charismatic authority. Mao and (at least within the Party) Deng both asserted legitimacy in
this fashion, and Xi seems set to do the same. Only the Chinese people can say whether or not his
vision will be equally successful. Ultimately, it may well be a question of his own work stylewill
most people really end up finding him as devoted and sincere as he portrays himself? The only
relevant claim Id like to advance is that Western academics are ill-placed to definitively answer that
question. Keai is in the eye of the beholder. Ryan Mitchell

Friday, March 13, 2015 - 12:00pm

n the 1990s, some American scholars and journalists indulged


themselves in forecasting a China collapse into several republics, like the
Soviet Union. Some based their arguments on the growing regionalism in
the country, others bet on the passing away of Chinese leader Deng Xiaoping.

Chen Weihua

To their disappointment, China has not disintegrated into six or seven republics.
Instead it has become the world's second-largest economy and it is well on its
way to being No 1.
Yet the rise of China has not discouraged some in the United States from continuing to fantasize about
the breakup of China.
In his Wall Street Journal article "The Coming Chinese Crackup," on March 7, David Shambaugh, a
China scholar at George Washington University, pronounced that the "endgame of Communist rule" in
China has begun. But his article is based on some random and superficial facts, and his arguments can
best be summarized as yipian gaiquan (hasty generalization), or with the English idiom, "One swallow
does not make a summer."
Shambaugh is right that no campaign can eliminate the problem of corruption. But no one should be so
naive as to believe that corruption can be completely uprooted, either in China or in the U.S., where
President Barack Obama has repeatedly complained about money in politics.
Shambaugh's deep flaw is that he looked at China with a bias, completely ignoring the positive aspects.
For example, the anti-corruption campaign launched by President Xi Jinping has raised hope for many
Chinese that the thorny issue is being tackled. The campaign has been popular both at home and
abroad, including winning support from senior Obama administration officials and many China scholars
in Washington. In the past days, U.S. scholars, both on the right and left, have questioned Shambaugh's
logic.
I believe Xi and many Chinese know that fighting the war on corruption is really hard. Yet Shambaugh
seems to suggest that doing nothing is probably a better way forward. Chen Weihua
[Note: Reprinted with permission from China Daily.]

Topics: Economy, History, Law, Politics


Keywords: Xi Jinping, Anti-Corruption, Economic Reform, Propaganda, Chinese Communist Party

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Embracing China's
"New Normal"
Why the Economy Is Still
on Track
Hu Angang
t is clear by now that China's economy is set to slow in the years to
come, although economists disagree
about how much and for how long. Last
year, the country's GDP growth rate fell to
7.4 percent, the lowest in almost a quarter
century, and many expect that figure to
drop further in 2015. Plenty of countries
struggle to grow at even this pace, but
most don't have to create hundreds of
millions of jobs over the next decade,
as China will. So understandably, some
experts are skeptical about the country's
prospects. They argue that its productionfueled growth model is no longer tenable
and warn, as the economist Paul Krugman
did in 2013, that the country is "about to
hit its Great Wall." According to this
view, the question is not whether the
Chinese economy will crash but when.
Such thinking is misguided. China
is not nearing the edge of a cliff; it is
entering a new stage of development.
Chinese President Xi Jinping has called
this next phase of growth the "new
normal," a term that Mohamed El-Erian,
the former CEO of the global investment
firm PIMCO, famously used to describe
the West's painful economic recovery
HU ANGANG is a Professor at Tsinghua
University's School of Public Policy and
Management.

FOREIGN AFFAIRS

following the 2008 financial crisis. But


Xi used the phrase to describe something different: a crucial rebalancing,
one in which the country diversifies its
economy, embraces a more sustainable
level of growth, and distributes the
benefits more evenly. The new normal
is in its early stages now, but if Beijing
manages to sustain it, China's citizens
can count on continued growth and
material improvements in their quality of
life. The rest of the world, meanwhile,
can expect China to become further
integrated into the global economy. The
Chinese century is not at the beginning of
the end; it is at the end of the beginning.
FOLLOWER TO LEADER

Understanding China's new normal


requires some historical context. As a
latecomer to the modern economy,
China has followed what one could
call a "catch-up growth" model, which
involves rapid economic growth following years of lagging behind. From 1870
to 1913, for example, the U.S. economy
followed precisely this path, growing at
an average rate of four percent. Between
1928 and 1939, Russia's GDP grew at an
average rate of 4.6 percent. And from
1950 to 1973, Japan's economy grew at
an average rate of 9.3 percent. Yet none
of those countries came close to matching China's record from 1978 to 2011:
an average GDP growth rate of nearly
ten percent over 33 years.
This ascent has helped China's
economy approach, and perhaps even
surpass, that of the United States. In
terms of purchasing power parity, a
measure economists use for cross-country
comparisons, China's GDP surpassed that
of the United States in 2010 or 2014,
depending on whether one relies on

Embracing China's "New Normal"

historical statistics from the Maddison


common prosperity"-will require not
Project or data from the World Bank's
only more sustainable growth but also
International Comparison Program. Yet
more evenly distributed gains.
if one relies on the World Bank Atlas
method, China's economy won't likely
SLOWER BUT STEADIER
outgrow the United States' until 2019.
To a certain extent, China's latest
And Chinas GDP still trails that of the
slowdown was inevitable. Three decades
United States if calculated using current
of breakneck growth have left China
U.S. dollars. But the best method for
with an economy that is simply massive,
comparing the two economies objectively making marginal increases in size all
is power generation, since it is physical
the more difficult. Even measured using
and quantifiable. It also closely tracks
current exchange rates, Chinese GDP
modernization; without electricity, after
exceeded $10 trillion in 2014, which
all, or at least without a lot of it, one can't means that growing by ten percent
run factories or build skyscrapers, which
would amount to adding $1 trillion to
is exactly what China has been doing. In
the economy after one year, a sum
1900, China generated 0.01 percent of the greater than the entire GDP of Saudi
power the United States did. That figure
Arabia, which is among the world's
rose to 1.2 percent in 1950 and 34 percent largest economies. Growth on this
in 2000, with China surpassing the United scale was bound to become unsustainStates in 2011. In this respect, China has able at some point. It essentially requires
caught up.
an unlimited supply of energy and puts
China's rise has also brought massive enormous stress on the environment.
benefits to the country's population,
China already emits more carbon into
although here there is obviously much
the atmosphere than the United States
more to be done. With a population
and the EU combined, and its emissions
more than four times as large as that
are still increasing.
of its closest economic competitor,
Given all this, China has little
China won't likely match even half the
choice but to pare back. Although a
United States' GDP per capita until
seven percent growth rate is still high
around 2030. To be sure, the country
in comparison to most economies of the
has made major strides in other areas.
world, it will reduce China's demand for
Its average life expectancy (around 76
basic inputs, whether coal or clean water,
years) is nearing the United States'
to more manageable levels. It will also
(around 79 years). Educational levels in allow China to finally address its contrithe two countries are comparable. And
bution to global climate change, in part
measured by the Gini coefficient,
by making good on the U.S.-China Joint
economic inequality in China may now Announcement on Climate Change, a
be lower than it is in the United States.
2014 agreement that requires China to
Yet since 1979, most of the windfall
begin reducing its carbon emissions by
from China's rise has accrued mainly to
no later than 2030. Thanks to slower
those who live in urban or coastal areas. growth and a host of new energyRealizing Beijing's ultimate developconservation policies, China will likely
ment goal-"common development and reach that target well ahead of time.
May/June 2015

Hu Angang

Beijing's shift toward the new


normal has already begun, and so far,
the results are impressive. Consider
its 12th five-year plan, which was
approved in 2011 and will run through
2015. Despite the plan's unfolding in
a time of declining growth, five of its
goals have strengthened the economy
and improved the lives of Chinese
citizens. The first was a commitment
to creating 45 million new jobs in urban
areas. Beijing has already exceeded the
target, creating over 50 million jobs in
the country's cities, a feat that stands
in stark contrast to the unemployment
crises in the United States and Europe
during the same period. The second
involved economic restructuring, calling
for the expansion of the country's service
sector from 43 percent of GDP in 2010
to just over 48 percent in 2014; in this
case, too, the government has already
hit its target, diversifying the economy
and boosting employment in the process. The third objective, an emphasis
on scientific innovation, mandated an
increase in state funding for research
and development from 1.75 percent of
GDP in 2010 to 2.20 percent in 2015.
Again, Beijing has hit its mark, turning
the country into the world's secondlargest funder of research and development. (The investment is already paying
dividends: in 2012, less than three
decades after China passed its first patent
law, nearly 50 percent more patent
applications were filed in China than in
the United States.) The fourth priority
was social welfare, including an expansion of the health-care system, which now
covers more than 95 percent of Chinas
total population. The last emphasized
conservation. It called for improvements
in eight environmental indicators, such
10

FOREIGN AFFAIRS

as the share of nonfossil fuels that make


up primary energy consumption and
the amount of carbon dioxide emissions
in proportion to GDP.
The plan's growth targets, meanwhile, were relatively modest by China's
standards. The central government set a
goal of seven percent GDP growth and
aimed to double per capita GDP by 2020
compared with the 2010 level. These
targets sent a clear signal, especially to
state governments that look to Beijing
for guidance: when it comes to growth,
focus on quality, not quantity.
The average income in urban areas
is still more than twice as large as that in
rural regions, but the gap is set to decrease
in the coming years-a development
that will boost domestic consumption
and drive continued GDP growth. Of
course, China's relative slowdown will
also pose difficult challenges, particularly in the realm of job creation and
food production, where growth rates
will likely slow. But this is the cost of
structural transformation, and it is a
price well worth paying to carry the
country forward.
GLOBAL GAINS
The new normal won't be limited to its
effects on China itself: by rebalancing its
domestic economy, the country will take
on an even greater role abroad. China is
already the world's largest contributor to
global growth, and if its economy continues expanding at a rate of around seven
percent, the country will likely remain,
in terms of purchasing power parity,
the most important force driving global
growth. From 2000 to 2013, China
was responsible for nearly 23 percent of
global growth (the United States contributed almost 12 percent). My own fore-

Embracing China's "New Normal"

Attention, Chinese shoppers: in Shanxi Province, March 2010


casts suggest that this figure will increase
to 25 percent before 2020, helping keep
global growth rates above three percent.
In trade, too, China is already the
world's leader, and it will continue its
upward trajectory. According to the
International Monetary Fund's Direction
of Trade Statistics database, it is the
largest source of trade for some 140
countries, and its trading activities
accounted for some 13 percent of the
world's total growth from 2000 to 2012.
But if Beijing wants to raise domestic
consumption and reduce China's
dependence on exports, it will have to
open China's borders, by cutting tariffs,
encouraging Chinese companies to
expand internationally, establishing
more free-trade zones, and increasing
its trade in the service sector. And to
attract more foreign investment,
Beijing will have to deliver on basic
reforms, such as capital account liberal-

ization, which involves easing restrictions on money flows across the country's borders, and the creation of a
so-called negative list, a single document
that indicates which sectors of the economy are not open to foreign investment,
signaling that all the others are.
China is poised to make greater
contributions in the realm of ideas as
well. The country is now among the
world's largest generators of intellectual
property; from 2000 to 2012, inventors
in China were responsible for nearly
62 percent of the growth in the world's
patent applications (inventors in the
United States contributed to around
25 percent). And as part of its new commitment to innovation, Beijing will
likely adopt stricter intellectual property
protections and encourage Chinese
companies to apply for international
patents and disseminate new technologies,
especially to developing countries.
May/June 2015

11

Hu Angang

Volting Ambition
Net Electricity Generation in the United States and China, All Sectors, 1980-2012
6,000

5,000

China
United
SStates

4,000

3,000

2,000

1,000

0
1980

.I

1985

1990

. I

1995

2000

2005

I .

2010

SOURCE: U.S. Energy Information Administration.

The more integrated Chinas economy


becomes, the more it will act as a global
stabilizer, just as it did following the 2008
financial crisis. It was Beijing's aggressive
stimulus plan that arguably contributed
the most to the global recovery after the
crisis hit. By ensuring that China kept
its growth rate at over nine percent,
Beijing helped turn negative global
growth positive. China will continue
to serve this role moving forward, but
it will also act through more formal
channels, mainly international financial
institutions, such as the World Bank
and the International Monetary Fund, to
reform the international financial order in
ways that benefit developing countries.
As China increases its economic lead,
it will inevitably be called on to assume
12

FOREIGN AFFAIRS

greater global responsibilities. But in


many ways, Beijing is already stepping
up, knowing full well that the success
of China's next stage of development
depends as much on the wider world as
it does on China itself. China can't thrive
without a balanced, rules-based global
order, and so the country will continue
to advocate for the liberalization of trade,
the end of protectionism everywhere,
regional cooperation, and a system of
global governance more representative of
developing countries. The new normal,
in this sense, is about building a China
strong enough not only to hold its own
but also to help others.0

7/29/2015

EverythingXiwants|TheEconomist

Nationalsecurity

EverythingXiwants
AnewnationalsecuritylawhintsattheCommunistPartysfears

Jul4th2015|BEIJING| Fromtheprintedition
SINCEtakingoverasChinasleaderin2012,
PresidentXiJinpinghasshownanunusual
preoccupationwithchallengestothecountrys
security.Ayearlater,tohandlethese,hesetupa
newnationalsecuritycommissionandmade
himselfchiefofit.OnJuly1stthecountrys
parliamenthelpedhimfurtherbyadoptinganew
lawonnationalsecurity.Itconveysthe
remarkablerangeofMrXisworries,withpotentialthreatsseentobeemanatingfromsources
asdiverseastheinternet,culture,educationandouterspace.Foritsinsightintotheoften
opaquepsychologyofChinaselite,thebillwillbewelcomednotso,however,byanyonewith
grievancesagainsttheCommunistParty.
Thelawisadense6,900charactersofpartyspeak,withlittleinthewayofdetail(notevenany
specificpunishments),butplentyofobligationssuchastodefendthefundamentalinterestsof
thepeopleandtakeallmeasuresnecessarytoprotectthecountry.Manycountries,including
AmericaandIndia,havelawsonnationalsecurity.Butthevarietyofconcernscoveredin
Chinasisstriking,asisthevaguenessofitslanguage(anexceptionisthatApril15thwill
henceforthbeobservedasNationalSecurityEducationDay).Itmaybefollowedbydetailed
regulationslater.Butitisunlikelythatitskeytermswilleverbedefinedmoreprecisely.ToMr
Xi,vaguenessisausefulweapon.
Thelawsfirstarticlesetsoutthedocumentsintention:toprotectthepoliticalpowerofthe
peoplesdemocraticdictatorshipandthesystemofsocialismwithChinesecharacteristics.As
always,thepartysgriponpowerandstatesecurityaretreatedassynonymous.MrXisroleas
nationalsecuritychiefisprimarilyconcernedwithdomesticthreats.Theseincludeones
commonlyregardedasnationalsecurityproblems,suchasterrorism.Buttheyalsoincludethe
challengesposedbyfreespeechandliberalideology.
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7/29/2015

EverythingXiwants|TheEconomist

MrXihasmovedmoredecisivelythanhispredecessor,HuJintao,toheadofftheseperceived
dangers,byroundingupnumerousdissidentsandtighteningcontrolsontheinternet,aswellas
launchingapeopleswaronterroramongMuslimUighursinthewesternregionofXinjiang.
Animportantdifferencebetweenanearlierdraftofthelaw,releasedinApril,andthefinal
documentisthegreaterprominenceandspacegiventoclausesrelatedtothepartysmonopoly
onpower.Thebill(whichreplacesonepassedin1993)isoneoffivenewlawscurrentlyindraft
formorrecentlypassedthatmayhelpMrXistrengthenthemuscleofthesecurityapparatus.
Theothersareanantiespionagelaw,passedlastyear,andlawscurrentlyindraftformon
counterterrorism,cybersecurityandforeignNGOs.
ThelawmakesanodtooneofMrXispetcauses,strengtheningruleoflaw.Article15
requiresthestatetostrengthenthemechanismforconductingchecksonandoversightover
theexerciseofpower.Thatisnotasitsounds.AtanannualpartymeetinglastOctober,MrXi
setoutavisionoftheruleoflawthatclearlysuggesteditwastobeusedtokeepthepartyin
control,nottohamstringitspower.OnJuly1stthelegislaturealsodeclaredthatfromnextyear,
officialswillhavetoswearloyaltytotheconstitutionwhentakingoffice.Thatdocument
supposedlyprotectsfreedomofspeech,ofthepress,ofassemblyandofassociation.Yetitsfirst
articlealsospecifiesthatChinaisapeoplesdemocraticdictatorship.MrXineverseemsto
mentionthenicersoundingparts.
Adutytosnitch
Hisanxietieshavesomejustification.Thepartyhaslongsincelostitsideologicallegitimacy:the
madnessoftheMaoisterafromthe1950stothe1970sputpaidtothat.Itseconomiclegitimacy
mayalsobewaning:aslowingeconomy,risingpricesandrisingtaxesmakeithardertobuy
peopleoff.Ordinarycitizensareincreasinglywillingtoexpresstheirgrievancesprotests
involvingthousandsofpeoplebrokeoutinasuburbofShanghaionJune22ndoverrumoursof
aplantobuildachemicalfactoryinthearea,forexample.Theunrestlastedforseveraldays
untilpolicebeganarrestingdozensofparticipants.Therapidexpulsionofairinrecentdays
fromthecolossalbubblethatisChinasstockmarketisalsocausingjittersinBeijing:millionsof
investorsarepeoplewhohaveborrowedheavilytopourmoneyintododgyshares.
Underthenewlaw,thedutyofindividualcitizenstoprotectnationalsecurity(forwhichread,
notstiruptrouble)isemphasised.Thisaspectisclearerthanitwasintheinitialdraft.
Equivalentlawsinmostcountriestellcitizenswhattheymustnotdo,suchasleakstatesecrets.
Chinaslawtellsthemwhattheyarerequiredtodo,includingreportinganythingthatmaypose
athreat.Thatislikelytoaddtoanxietyamongmembersofthecountrysbeleaguered
communityofpoliticalactivists,whoarealreadyvictimsofvaguelegislationthathaslongbeen
inforce.InthesoutherncityofGuangzhou,prosecutorsarereportedlypreparingacaseagainst
http://www.economist.com/node/21656689/print

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7/29/2015

EverythingXiwants|TheEconomist

ablogger,LiangQinhui,forincitementtosubvertstatepower.Hisallegedcrimewasposting
sensitivetweets.(OnesupposedlysaidhewouldratherbeanAmericandogthanaChinese
pig.)
Thosealarmedbythenewbillincludeforeignbusinesses.Somehadalreadyexpressedconcerns
abouttheothersecurityrelatedlawspackagedwithit,suchasthedraftcounterterrorismlaw,
releasedinMarch,whichdemandsthatcompaniesreleaseencrypteddataonrequest.Thenew
lawassertsChinasrighttoensurethatcriticalinfrastructureandinformationsystemsare
secureandcontrollable.GivenChinascurrentanxietiesabouttheuseofforeigntechnologyin
computersystemsitdeemsimportant,foreignfirmsworrythatsuchinnocentsounding
languagecouldeventuallyresultinstrictercurbsontheuseoftheirproducts.Thedraftlawon
foreignNGOshassimilarlysownanxiety.Itwillrequiresuchorganisationstoregisterwiththe
police.
TheremaybealittlereliefinHongKong.Thedocumentmentionstheformercolonysobligation
toupholdnationalsecurity.Butofficialswerequicktopointoutthatthebillwouldnotbe
appliedintheterritory,whichhasitsownBritishinspiredlegalsystem.Itsexemptionmaynot
lastforever.ChineseofficialswouldlikeHongKongtopassitsownlawonnationalsecurityit
saystheterritoryisobligedtodosobyitspostcolonialconstitution.ButwhenHongKongs
governmenttriedtopasssuchalawin2003,massivedemonstrationseruptedthateventually
causedthethenchiefexecutive,TungCheehwa,tostepdown.Officialsintheterritoryare
unlikelytobeinahurrytotryagain(notwithstandinganunusuallylowturnoutonJuly1stfor
anannualparadeinHongKongbysupportersofgreaterdemocracyamovementthatappears
tohaveloststeaminthefaceofChinasintransigence).
ElsewhereinChina,thechillbeingspreadbyMrXisnewlawsisunlikelytodissipatesoon.A
seniorlegislatortoldreportersafterthelatestonewaspassedthatChinasnationalsecuritywas
morecomplicatedthanatanyothertimeinhistory.Thestatenewsagency,Xinhua,saidallof
the155legislatorswhovotedonthelawwereinfavour,apartfromonewhoabstained.Atleast
MrXineednotworryabouttheloyaltyofhisparliament.

Fromtheprintedition:China

http://www.economist.com/node/21656689/print

3/3

Legal Reform:
Chinas Law-Stability Paradox
Benjamin L. Liebman
Abstract: In the 1980s and 1990s, China devoted extensive resources to constructing a legal system, in
part in the belief that legal institutions would enhance both stability and regime legitimacy. Why, then,
did Chinas leadership retreat from using law when faced with perceived increases in protests, citizen complaints, and social discontent in the 2000s? This law-stability paradox suggests that party-state leaders
do not trust legal institutions to play primary roles in addressing many of the most complex issues resulting
from Chinas rapid social transformation. This signies a retreat not only from legal reform, but also
from the rule-based model of authoritarian governance that has contributed much to the resilience of the
Chinese system. The law-stability paradox also highlights the difculties facing efforts by Chinas new
leadership to reinvigorate legal reform.

BENJAMIN L. LIEBMAN is the


Robert L. Lieff Professor of Law
and the Director of the Center for
Chinese Legal Studies at Columbia
Law School. His recent publications
include Leniency in Chinese Criminal Law? Everyday Justice in Henan, in the Berkeley Journal of International Law (forthcoming 2014);
Malpractice Mobs: Medical Dispute Resolution in China, in the
Columbia Law Review (2013); A
Return to Populist Legality? Historical Legacies and Legal Reform,
in Maos Invisible Hand (edited by
Sebastian Heilmann and Elizabeth
Perry, 2011); and Toward Competitive Supervision? The Media and
the Courts, in The China Quarterly
(2011).

o robust legal institutions support or subvert


efforts to maintain social stability in an authoritarian
state? Over the past decade, this question has become central to discussions concerning legal reform
in China. In the 1980s and 1990s, China devoted extensive resources to constructing a legal system, including training legal professionals, encouraging
greater use of the courts, and adopting new laws
designed to regulate and constrain state conduct. In
the 2000s, in contrast, the Chinese party-states focus shifted toward emphasizing resolution of disputes outside the formal legal system, negotiated
outcomes in the formal legal system, flexible application of rules and procedures, and greater oversight of judges and other legal professionals.1
This essay focuses on what I refer to as Chinas
law-stability paradox. Having devoted extensive
resources to constructing a legal system in the 1980s
and 1990s, why did Chinas leadership retreat from
using law when faced with perceived increases in
protests, citizen complaints, and social discontent
in the 2000s? Chinas legal reforms have been
designed in part to further stability. Yet party-state
2014 by Benjamin L. Liebman
doi:10.1162/DAED_a_00275

96

leaders appear not to trust legal institutions to play primary roles in addressing
many of the most complex issues resulting from Chinas rapid social transformation. The party-state has prioritized rapid
resolution of conflict over adherence to
legal procedures.
In China, the term social instability is often
understood to refer specically to incidents of protest or social conflict. Yet the
phrase has evolved to cover a much broader swath of activity and discourse, including online discussions of high-prole
issues and any conduct that the party-state
views as a potential threat to its authority
or legitimacy, including corruption, group
litigation, and virtually any publicly discussed controversial topic. Social instability in China thus refers narrowly to acts
of protest and broadly to conduct that
party-state ofcials view as having the
potential to create unrest or to challenge
the party-states power.
Evidence from China suggests that top
leadership has in recent years perceived
adherence to legal rules as a constraint on
efforts to maintain social stability.2 This
approach may be due to concerns that
stronger legal institutions could threaten
Communist Party control. But recent attitudes toward law also reflect party-state
efforts to maintain legitimacy by being responsive to the public, as well as uncertainty about the utility of law in managing a
period of rapid change. Law has become an
important governance tool in China, but
adherence to legal procedures is not a
source of party-state legitimacy. Recognizing Chinas law-stability paradox challenges Western arguments regarding the
role legal reforms have played in the construction of Chinas form of authoritarianism,3 suggesting a retreat not only from
legal reform but also from the rule-based
model of authoritarian governance that
has contributed much to the resilience of
the Chinese system.
143 (2) Spring 2014

The law-stability paradox also highlights Benjamin L.


the difculties facing efforts to reinvigo- Liebman
rate legal reform. Under the slogan rule
of law China, newly appointed Communist Party General Secretary and President
Xi Jinping has signaled a desire to enhance
legal reform and force ofcial actors to
obey legal norms. The Communist Party
Central Committees Resolution on Several Important Issues on Comprehensively
Deepening Reform (or simply, the Third
Plenum resolution), issued in November
2013, outlines some potentially important
reforms to the legal system. Xis comments
and the resolution have brought cautious
optimism to many people working within
the Chinese legal system who have viewed
policies of the past decade as an assault
on legal norms and the idea of rule-based
governance. Yet other recent developments, including renewed emphasis on
stability and detentions of legal activists,
suggest that fundamental changes to ofcial attitudes about the role law plays in
China are unlikely. The law-stability paradox suggests that reform requires not
only renewed commitment to the use of
legal procedures and institutions, but also
breaking the cycle of distrust that undermines the authority of legal institutions
and rethinking how the party-state conceives of its own legitimacy.

X i Jinpings comments endorsing the

concept of rule of law China and the reforms announced following the Third
Plenum in November 2013 have been widely viewed as efforts by Xi to mark a clean
break from his predecessors, especially following the fall of Bo Xilai, the former Communist Party Secretary of Chongqing
whose populist approach was seen by
many as a direct assault on rule-based governance. Xi is not the rst Chinese leader to
use the rhetoric of law to distinguish himself from his predecessors. Deng Xiaopings
embrace of legal reforms in the late 1970s
97

Chinas
LawStability
Paradox

98

and 1980s was in signicant part a reaction


to the chaos and violence of the Cultural
Revolution.
Chinas legal reforms initially focused on
creating a legal framework for economic
development.4 By the 1990s, the focus of
new laws expanded to include a range of
other issues, from environmental protection and womens rights to administrative laws that facilitate challenges to state
action and regulate state conduct. The
number of trained legal personnel also
expanded rapidly in the 1980s and 1990s,
with the total number of lawyers increasing from 3,000 in 1978 to more than
160,000 by the early 2000s. Professionalization was explicitly encouraged: hundreds of law schools and law departments
opened; legal expertise developed within
the National Peoples Congress and other
law-drafting bodies; and beginning in
2002, all new judges, procurators, and lawyers were required to hold university
degrees and pass a unied national bar
exam.5 Signicant attention was devoted
to making the legal system accessible to
ordinary people. In the late 1990s and
early 2000s, China devoted resources to
constructing a state-run legal aid system,
and for the rst time permitted the development of quasi-independent public interest law organizations. Debate about legal
issues also became common in the media
in the 1990s, advancing popular knowledge
of law.
Although reforms to the legal system in
the 1980s and 1990s were impressive, abuses continued to be widespread. Many rights
set forth in the large volume of new laws
went unenforced. The Chinese party-state
continued to rely on political campaigns
to address the most signicant problems
including threats of instabilityand to
enforce new legal norms. Courts and procurators remained under direct Communist
Party oversight. Party political-legal committees and individual party and gov-

ernment ofcials played signicant roles


in influencing outcomes in court and in
resolving disputes outside the formal
legal system, reflecting a continuation of
revolutionary-era distrust of autonomous
institutions.6 Populism remained an important factor in shaping legal outcomes.
Legal rules were designed primarily to
facilitate, not constrain, party-state policy,
in particular economic development. Law
was not a mechanism for oversight over
the party-state itself.
General Secretary Hu Jintao and Premier
Wen Jiabao took power in 2003 against a
backdrop of rising concerns about social
unrest and inequality. They initially appeared to use law to signal a break from
the past. Legal scholars and lawyers seized
on a perceived new commitment to reform
to call for greater enforcement of the constitution and a deepening of legal reform.7
There were some modest successes for
advocates of reform, most notably the 2003
abolishment of the custody and repatriation detention system for migrant workers following an outcry from the media
and legal academics concerning abuses in
the system. The sars outbreak the same
year led to widespread calls for, and
apparent new state commitment to, increased government transparency. China
also amended its constitution in 2004 to
add provisions protecting human rights
and private property.
Despite this initial optimism, the 2003
2013 HuWen era became known for its
deemphasis on legal reform. In the rst
two decades of legal reform, embrace of
law and rule-based governance was largely
understood as enhancing the party-states
authority and legitimacy. In the HuWen
period, in contrast, the Chinese leadership appeared to develop a more skeptical
approach to law. The result was a decade
of slowing legal reform and greater party
oversight over the legal system, what legal
scholar Carl Minzner has called Chinas

Ddalus, the Journal of the American Academy of Arts & Sciences

turn against law, and what I have elsewhere described as Chinas return to populist legality.8
New ofcial attitudes toward law in the
HuWen era were manifest most clearly
in the emphasis on maintaining social
stability and constructing a harmonious
society. Stability has been a key concern
throughout the reform era. In the 2000s,
however, stability attracted renewed
attention as reports of protest and unrest
mounted. In the 1980s and 1990s, legal
reforms were largely thought to promote
stability: it was better to have disgruntled
citizens suing in court than protesting or
burning down government ofces. In the
2000s, in contrast, ofcial sensitivity to
unrest resulted in deemphasis on legal
procedures and the creation of incentives
for local ofcials to maintain stability,
often at the expense of following legal
norms.
In the 2000s, courts came under pressure
to mediate the majority of civil cases.
Courts received explicit targets for mediating percentages of cases; mediation rates
in some jurisdictions exceeded 80 percent.9 This trend marked a shift from the
1990s, when adjudicated outcomes had
become the norm in most cases decided
by Chinas courts. Ofcial encouragement
of mediation reflected the belief that
mediated cases are less likely than adjudicated cases to result in escalation and
unrest. Mediation also t well into ofcial
policy of re-embracing revolutionary-era
concepts of justice for the people and
the Ma Xiwu adjudication method,
which emphasized resolving disputes
immediately, on the spot, and in line with
popular views.10
High mediation rates lead to concerns
that litigants are being coerced into agreeing to mediated outcomes and denied the
opportunity to resolve cases in accordance with the law. In many contentious
disputes, mediation is handled through
143 (2) Spring 2014

grand mediation, led by local party Benjamin L.


leaders, with courts being one of many Liebman
actors at the table. Ofcials and judges
serving as mediators often act as fact
nders, pressuring parties and their families to agree to settlements.
Many judges view mediation as subverting their proper role and adding to their
workload. Yet mediation also protects the
courts. Mediated outcomes insulate courts
from appellate review and prevent cases
from being made public, reducing the possibility that judges will be held accountable for incorrectly decided rulings. In
some substantive areas, most notably
labor, heavy reliance on mediation outside
the courts also reflects the courts lack of
capacity to handle a surge in disputes.11
Mediation in the 2000s extended to administrative cases (where it had previously been banned by the 1989 Administrative Litigation Law) and criminal cases.
Equity concerns are particularly apparent in criminal cases. Many defendants in
minor criminal cases who agree to compensate their victims receive suspended
sentences. Those who do not pay compensation, or are unable to do so, generally
receive prison terms.12 In more serious
cases, compensation payments by defendants or their families to victims can determine whether defendants receive suspended death sentences or life terms
rather than the death penalty. The emphasis on compensation and negotiated
outcomes in criminal cases reflects resource concerns and ofcial policy of
treating minor cases leniently.13 Yet the
encouragement of settlement and compensation in criminal cases also mirrors
state apprehension about escalation and
protest. Ensuring victims are compensated
reduces the possibility of escalation or protest by victims; reducing sentences minimizes the risk of discontent from defendants families. But whether negotiated
outcomes actually produce stability is
99

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Paradox

100

unclear: criminal cases continue to be a


primary source of complaints concerning
the courts, in particular from victims families suspicious that defendants will avoid
punishment through backroom deals.
Concerns about stability also affect
how judges interpret and apply the law in
cases that are resolved through adjudication. In tort cases, most notably medical
disputes, it is routine for judges to adjust
outcomes to ensure that aggrieved litigants receive compensation, even when
there is no formal legal basis for doing so.
Judges adopt flexible interpretations of
law in order to ensure that aggrieved persons receive compensation in a range of
potentially contentious cases, most notably labor disputes and those involving
corporate dissolution and bankruptcy
(where layoffs are a risk).14 Courts in China
are innovative, but innovation often serves
to insulate courts and judges from criticism, not increase court authority.
Courts in the HuWen era came under
extreme pressure to respond to and prevent protest. The volume of litigation
related petitions and protests surged in
the late 1990s and early 2000s.15 Letters
and visits ofces exist at all levels of the
Chinese state to receive and process complaints from citizens. Many other party
and state entities, including the courts,
the media, and procuratorates, also have
their own letters and visits ofces to handle complaints. Thus litigation related
petitions may be led with letters and visits ofces, with courts, or with letters and
visits ofces at other party-state organizations. Judges and courts are evaluated
and ranked based on the number of complaints led. Complaints or protests about
courts are viewed as evidence that judges
have not handled the case correctly regardless of the merits of the complaint.
Petitions about the courts reflect problems in the courts, including corruption
and lack of competence. But such com-

plaints are also a sign of disconnect between popular use of law and the capacity
of the legal system to respond. One common source of complaints, for example, is
unenforced decisions. In some cases,
however, lack of enforcement results from
the inability of a defendant to pay, not
from inaction by the courts. Likewise, in
contentious cases, most notably land disputes, petitions and protests often result
from the fact that courts lack sufcient
authority to act.
Courts take extreme steps to eliminate
complaints. One response has been greater
use of mediation, reflecting the view that
mediated cases are less likely to result in
protest. But courts also maintain dedicated
funds that they use to persuade petitioners
to stop petitioning, agree to reopen and
rehear previously decided cases in response to complaints, and deploy staff to
Beijing to intercept and forcibly return
home those who seek to le complaints
to authorities in the capital. Compensation
and mediation agreements frequently
include promises by litigants not to petition. Adherence to legal rules is of secondary importance to eliminating the
potential for unrest, with courts adjusting
outcomes or pressuring defendants to pay
additional sums to plaintiffs in already
decided cases.16 Although ofcial statistics
reported a dramatic drop in the volume
of litigation-related petitions led in the
latter half of the 2000s, judges report that
the pressure they face from petitioners
has not declined.
Protest likewise influences cases that
never make it to court. Concern about
unrest is a key factor influencing settlement decisions in areas such as medical
malpractice litigation and labor disputes,
where defendants often agree to pay signicantly more than legally required in
order to head off possible protest and violence.17 The threat of violence is real: reports of aggrieved patients or their fami-

Ddalus, the Journal of the American Academy of Arts & Sciences

lies attacking doctors have become common, as has the practice of family members leaving the body of the deceased at
the hospital (sometimes in the lobby) in
protest while negotiations over compensation proceed. Specialized intermediaries now exist in many locations to assist
people seeking compensation outside the
formal legal system, with professional
protestors congregating outside hospitals
and specialized debt collectors working
in many areas.18 Ofcials have acted
quickly to ensure that some of the most
sensitive disputes, such as those arising out
of the Wenchuan earthquake, the Wenzhou high-speed rail accident, and the
melamine-contaminated milk scandal,
never make it to court. In all three cases,
potential plaintiffs were encouraged or
compelled to agree to quick settlements.
Courts have also refused to accept cases
on a wide range of issues linked to social
unrest, such as land disputes. Courts lack
authority to accept many sensitive cases
and refuse to accept such cases even
when they do have the authority.
Scholarship on protest in China, as
Ching Kwan Lee notes in her essay in this
issue, has identied threats of escalation
and group action as key determinants of a
protests success. However, evidence from
the legal system shows that courts are at
times responsive to individuals who pose
little threat of collective action.19 The
incentives for local ofcials to stop even
individual petitioners suggest that existence of such grievances is perceived as a
threat to the party-states legitimacy.
State concerns about stability and legitimacy are also manifest in ofcial
embrace of populism in the legal system
and in calls for greater party supervision,
in part the result of the perception that
courts are an important source of public
discontent. The term populism in the Chinese legal system includes a broad range
of external factors that affect legal insti143 (2) Spring 2014

tutions, including traditional and online Benjamin L.


media as well as collective protests. Liebman
Appeals to populism often mix with party
efforts to assert oversight over the courts.
The blending of populism and party
oversight was captured most clearly in
the promotion of the three supremes
by former Supreme Peoples Court President Wang Shengjun in 2008: the supremacy of the partys business, the
supremacy of popular interests, and the
supremacy of the constitution and law.
Courts in recent years have welcomed
greater oversight by peoples congresses,
have increased roles for laypeople in
hearing cases, and have emphasized public
opinion in court decisions. Such steps
contrast with the modest efforts in the
direction of greater professionalism in
the legal system in the 1990s. Courts have
been encouraged to work together with
other party and government entities to
mitigate risks of instability.20 Judges and
procurators are increasingly well trained,
but such training does not equip them to
resist populist pressure. Nor are they supposed to do so: judges are explicitly
incentivized to take account of public
opinion.
Ofcial embrace of populism and renewed emphasis on Communist Party
oversight of the courts is at times explicitly linked to rejection of foreign models of
legal development. Legal education has
likewise become increasingly ideological
in recent years.21 Yet not all recent efforts
to emphasize links between the courts
and the public are efforts to assert greater
party-state oversight. Courts have also
taken steps to educate ordinary people
about law. Some recent developments,
such as court efforts to put opinions
online and to make courts more accessible
to litigants in rural areas, also suggest that
courts may be seeking to use appeals to
public opinion and populism to boost their
own legitimacy.
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102

Outside the courts, a range of other


party-state institutions assumed active
roles in resolving contentious issues and
ordinary disputes in the early 2000s. Stability maintenance work has been coordinated by the Central Commission on
Comprehensive Social Management, a
joint party and government body that is
equal in rank to, but formally exists as a
separate entity from, the partys Central
Political Legal Committee (plc). The
Stability Maintenance Leadership Small
Group also exists at the national level directly under the Standing Committee of
the Politburo; it appears to be focused on
responding to specic incidents of unrest.
Both entities have their work ofces
within the plc. This structure of multiple organizations working to address
threats to stability is replicated at the
provincial and municipal levels, although
at the local level stability maintenance
ofces are often combined with petitioning ofces into stability maintenance
centers.22 The party-state has devoted
extensive resources to stability maintenance organizations. Local stability maintenance ofcials often have extensive roles,
including the power to intercept and detain petitioners, pay petitioners to settle
grievances, and mediate disputes.23 These
roles reflect efforts to maintain stability at
all costs, as well as unease with allowing
the legal system to take on the primary
role in resolving threats to stability.
Legal reform did not stop in the Hu
Wen era; important reforms continued
throughout the period. Most involved
the development of Chinas legal hardware: new laws and regulations designed
to regulate an increasingly complex society. Important examples include the passage of new Property and Tort Laws and
major revisions to Chinas Criminal Law,
Criminal Procedure Law, and juvenile justice system. Changes to the Criminal Law
and to court review procedures for capi-

tal cases resulted in signicant decreases


in the frequency of death sentences. If
fully implemented, revisions to the Criminal Procedure Law have the potential to
make the criminal justice process signicantly more fair for criminal defendants. The volume of civil cases in the
courts also rose, from 4.8 million in 2003
to 7.2 million in 2011, with most of the
increase coming in the latter portion of
the HuWen decade.24 China now hosts
the largest volume of copyright litigation
of any country in the world. Expanded
public space for legal debate has also meant
that most of the issues discussed above
are widely debated in China, especially
online.
Legal developments in the 2000s nevertheless suggested that party-state leaders
were uncertain about the utility of legal
procedures and institutions as mechanisms for addressing perceived threats to
stability. Having devoted impressive resources to constructing a legal system in
the 1980s and 1990s, the Chinese partystate retreated from using the system in
the face of new social problems in the
2000s. Many within China have pointed
out that such policies have produced a
vicious circle. Incentives for ofcials encourage responsiveness to threats of
unrest. Responsiveness, in turn, encourages others to pursue their grievance outside the legal system, or to nao ting, or cause
chaos, in the courtroom. The emphasis
on stability has also encouraged new
forms of abuses, including the creation of
black jails, privately run detention centers hired by local authorities to intercept
and detain those who travel to Beijing to
petition or protest.25

What are the sources of Chinas lawstability paradox? Four primary factors
have had particular influence. First, the
color revolutions in Eastern Europe and
Central Asia in the early 2000s and the

Ddalus, the Journal of the American Academy of Arts & Sciences

Arab Spring of 2011 appeared to raise


concerns at the top of the party-state that
legal reforms threatened its authority.
The emergence of a dedicated group of
rights lawyers willing to take on cases
that the party-state viewed as sensitive,
including representing Falun Gong adherents, political dissidents, and the victims of mass disasters, may have heightened such concerns. The arguments of
rights lawyers almost always consist of
demands that ofcials follow the law, not
explicit calls for political change. Such
arguments were viewed by at least some
in the political-legal system as threats to
party authority. Yet such trends have limited explanatory power. Legal institutions
in China remain under direct party-state
oversight and have shown little evidence
of developing into sites of resistance to
authoritarian rule.26 Little in the way of
credible threats to the party-state emerged
from the courts or legal profession. Arguments that legal reform and calls for judicial independence represented foreign
attempts to subvert the Chinese system
appear largely to have been strategic efforts by conservatives seeking to slow the
pace of reform and reassert party-state
oversight.
Second, the most controversial trends in
the legal system in the 2000s all had roots
in Chinas revolutionary and prerevolutionary past. Recent literature has noted
the ways in which Chinas revolutionary
traditions have contributed to regime resilience.27 The law-stability paradox is in
part the consequence of revolutionary
traditions and shows that they may be
both a resource and a constraint. Populism, lack of differentiation among legal
and nonlegal actors, the importance of
petitioning, reliance on political campaigns, and the embrace of flexible interpretations of law all reflect a continuation
of traditional Communist Party approaches to governance and law.28 Such trends
143 (2) Spring 2014

may have been less apparent in the 1990s Benjamin L.


when the system embraced professional- Liebman
ization, but they have always been present.
Faced with a perception of increased
instability in the 2000s, Chinas leaders
reverted to using approaches to law and
governance with which they were familiar.
A short-term focus on reducing instability
amplied the importance of such approaches.
Third, Chinas law-stability paradox
reflects the party-states conception of its
own legitimacy. The central party-state has
linked its legitimacy to outcomes and has
perpetuated the idea of central ofcials
being father and mother ofcials who
are responsive to the grievances of ordinary people. In so doing, the party-state
has created a dynamic in which it believes
it must respond to complaints that threaten to escalate into unrest, even when the
response violates legal norms. The Chinese
party-state is at times over-responsive to
individual or group protest. Ofcial intervention transforms private law disputes
such as tort or labor cases into negotiations with the state. Ofcial intervention
encourages others likewise to seek redress
outside the legal system. Law in China
operates in the shadow of protest, with legal issues transformed into political questionsthe opposite of de Tocquevilles
observation about the United States that
[s]carcely any political question arises . . .
that is not resolved, sooner or later, into a
judicial question.29 Strengthening the
role law plays in regulating Chinese society and citizen-state interactions may
require not only boosting legal institutions but altering the ways in which the
party-state conceives of its own legitimacy,
shifting from a focus on results, responsiveness to individual grievances, and
populism to legitimacy based on adherence to legal procedures and norms.
Fourth, ofcial reluctance to commit to
greater use of law reflects ambiguity about
103

Chinas
LawStability
Paradox

104

whether law is the best tool for managing


a society undergoing rapid and unprecedented social transformation. This is evident both in the failure to follow laws on
the books in complex or sensitive cases
and in reliance on nonlegal institutions
in a wide range of routine cases. Recent
literature on the Western nancial crisis
has noted the ways in which excessive
reliance on formal rules can constrain
actors in ways that deepen the crisis.30
Chinas leadership may not have explicitly
embraced such reasoning; but elements
of Chinas approach to managing instability, in particular the continued desire
to be able to move rapidly and flexibly,
have parallels to those in the West who
argue that excessive reliance on legal rules
can at times worsen unstable situations.
Steps taken by Chinas new leaders in
2013 suggest recognition of the need to
refocus the party-state on adherence to
legal rules. Most notable among announced reforms have been plans to
abolish the widely condemned reeducation through labor detention system and
renewed efforts to rein in corruption.
The Third Plenums resolution in November 2013 emphasized the importance
of human rights, the constitution, and
judicial independence, suggesting a desire
to reduce external influence on the courts.
The resolution also called for reexamination of the role of court adjudication committees,31 expansion of legal aid, greater
emphasis on transparency in the courts,
elimination of the use of torture, addressing and avoiding wrongful convictions, and reducing the number of crimes
subject to the death penalty. The resolution
provides only a general framework for reform; nevertheless, it has been interpreted
by some within China as signaling renewed
commitment to legal reform. There are
also serious efforts underway to implement
the revised Criminal Procedure Law, which
went into effect on January 1, 2013.

There are indications that the state is


concerned about curbing some of the
worst abuses, in particular when they are
committed against ordinary people, not
activists. In early 2013, numerous Chinese
media accounts highlighted abusive illegal
conduct by local ofcials or those employed by them, including cases of forced
abortion, violent conduct by those enforcing relocation and demolition orders
on expropriated property, and horric
conditions in reeducation through labor
detention facilities. More recently, in late
2013 and early 2014, reports circulated that
party ofcials were investigating former
Politburo Standing Committee member
Zhou Yongkang, the person most closely
associated with the stability-at-all-costs
approach of the 2000s. Some view such
developments as a sign that party-state
leaders are serious about reducing abuses
committed in the name of stability, and
are committed to greater use of formal
legal institutions to address social conflict.
Yet proposed reforms have come alongside renewed focus on stability, reflected
most clearly in the announced creation of
a new National Security Commission under the direct leadership of Xi Jinping.
The exact structure and role of the commission and its relationship to existing
institutions remain unclear. It is clear,
however, that the new commission reflects
continued and deepening commitment
to addressing perceived external and
internal threats to security and stability.
Proposed legal reforms are not likely to
have much signicance for individuals
the state views as threats.32 This has been
made apparent by the reemergence of
party-state concerns that legal reforms
could be used to challenge its authority.
Reports have noted bans issued by party
ofcials on the discussion of topics such
as judicial independence and constitutionalism in the media and in universities.33 A number of prominent legal

Ddalus, the Journal of the American Academy of Arts & Sciences

activists were detained in the second half


of 2013, most notably legal scholar Xu
Zhiyong, who was subsequently sentenced
to four years in prison. This crackdown
on legal activists suggests that the boundaries of politically permissible activities
are shrinking even as party-state leaders
call for renewed focus on law. Xi Jinping
has also reemphasized the role of Mass
Line ideology, suggesting that fundamental changes to the political-legal system
are not likely. There are signs that some
individuals who formerly would have
been sentenced to reeducation through
labor are being detained through other
forms of arbitrary detention. Although
some of the announced reforms have the
potential to make the legal system more
effective and fair in a range of cases, the
party-states emphasis on rule of law
China is unlikely to bring fundamental
changes to the ways the party-state views
and uses law. Rule of law China will likely continue to include the explicit embrace
of populism, rejection of Western models,
and the reliance on a range of legal and
nonlegal actors to address social conflict.

hinas law-stability paradox also highlights the challenges facing any renewed
efforts at legal reform. The challenge for
any serious efforts to strengthen the role of
law in addressing social conflict is not only
to realign incentives so that local ofcials
follow legal rules; it is also to convince
those most likely to engage in acts of unrest or resistance that the legal system can
protect their interests. A growing body of
literature provides empirical support for
the popular perception that the legal system increasingly serves the interests of the
elite.34 Greater emphasis on populism
alone is unlikely to change this perception.
Tensions also remain between new legal rules and popular conceptions of justice. Efforts to adjust law to align with
popular views risk creating new inequali143 (2) Spring 2014

ties and undermining the authority of Benjamin L.


legal institutions. Recognizing that legal Liebman
outcomes sometimes do not align with
popular conceptions of justice may be
necessary to strengthening the authority
of legal institutions and to reducing instability. Yet bridging the divide between
new legal norms and popular views may
be hard, as evidenced by difculties in
enforcing new provisions in the Criminal
Procedure Law. Initial evidence suggests
that signicant progress is being made in
implementing provisions that make it
easier for counsel to see their clients and
access evidence.35 Such changes are relatively easy to implement because they
require only changing state conduct. Yet
it appears that little progress has been
made in encouraging or compelling witnesses to appear at trial, which is also required by the new law.36 Enforcing such
provisions requires not only changing
state behavior but also addressing traditional reluctance to become involved in
legal disputes, in particular those in which
witnesses do not have a stake.
Deepening legal reform also requires
breaking the cycles of public distrust that
undermine the authority of legal institutions. The party-state continues to rely on
party institutions, not the courts, to handle the most pressing problems. Recent
efforts to combat corruption, for example,
have continued to rely primarily on the
Communist Partys Discipline Inspection
Commission (dic), a body that is not subject to any legal oversight and that has extensive powers to investigate and detain
suspects. Reliance on such party institutions may reflect doubts about whether
the courts have the capacity to address
such problems. Such reliance reinforces
the secondary role played by legal actors.
Courts are trapped in a similar cycle of
popular distrust. Legal institutions often
appear weak, lacking the authority to decide contentious cases and unable to
105

Chinas
LawStability
Paradox

106

enforce decisions in disputes they do


adjudicate. As a result, individuals frequently seek recourse outside the legal system. Their success in doing so further
undermines condence in legal institutions. The lack of trust from party ofcials
and the public also means that legal institutions are not given the authority to act
in ways that might allow them to increase
public condence.
Chinas new leaders face an environment in which legal reform is both easier
and more difcult than in the past. Investment in legal infrastructure over the
past three decades has created the institutional capacity to resolve a widening
range of disputes through the formal legal
process, fostered constituencies pushing
for reform from within the legal system,
and legitimized debate about legal issues.
The Chinese system remains capable of
rapid change, in particular in the face of
perceived crisis. At the same time, populism has reemerged as an important factor in the legal system, the legal system is
increasingly viewed as protecting the
interests of the elite, party-state leaders
appear unable or unwilling to let the legal
system handle the most contentious issues, and there appears to be signicant
uncertainty about the utility of autonomous legal institutions. Academic literature has long noted a question inherent in
efforts to construct authoritarian legality:
how far can the legal system develop without challenging authoritarian rule? China
has largely avoided this question, in part
due to the extensive state oversight of the
legal system. Any signicant efforts to restart legal reform will make the question
central to discussions about the future of
law in China.
In contrast to other elds surveyed in
this volume such as environmental policy
or social policies, few working in the Chinese legal system compare Chinas system
to that of other developing, authoritarian,

or post-Communist countries. Chinese legal academics and legal professionals assess Chinas legal development not with
reference to that of post-Communist
Russia or even Singapore, but to the legal
systems of the United States or Western
Europealbeit often an over-idealized
form of Western legality. In some respects,
Chinas legal reforms appear to have been
relatively successful when compared to
other middle-income countries or to postCommunist countries not tethered to the
European Union. China has hundreds of
thousands of legal professionals and a
system that was almost unimaginable at
the beginning of the reform era in 1978.
Yet metrics for evaluating legal development are often elusive and misleading.37
The number of laws, legal personnel, or
cases tells very little about the overall
fairness or effectiveness of the Chinese
legal system. Assessing Chinas legal system is also difcult because such evaluations vary depending on whose interests
are prioritized: those of the state or those
of ordinary people. Different legal systems
serve different functions, and such functions may change over time within the
same country. Placing Chinas legal development in comparative context highlights the fact that there is no single form
of or path to legal development and that
nonconvergence with Western models of
legality may be as likely as convergence.
Chinas recent experiences also highlight
difculties inherent in using law both to
legitimize the state and to constrain state
action in an authoritarian state undergoing rapid social transformation.
Chinas law-stability paradox reflects
uncertainty about how best to respond to
instability and the difculty of adapting
legal rules to a rapidly changing society.
The paradox also reflects the challenge of
creating new legal rules and institutions
in a political system where legitimacy
continues to be based on populist respon-

Ddalus, the Journal of the American Academy of Arts & Sciences

siveness and delivery of economic growth.


Shifting to a system in which legitimacy
is based on adherence to legal rules, not
just rhetorical commitment to such rules,
may be necessary for resolving the lawstability paradox. Doing so may require

changing not only how the Chinese party- Benjamin L.


state conceives of the relationship be- Liebman
tween law and stability, but also how it
conceives of its own role in managing
Chinas social transformation.

endnotes
Authors Note: I explore many of the issues discussed in this essay in more detail in Benjamin
L. Liebman, Chinas Law and Stability Paradox, in Chinas Challenges: The Road Ahead, ed.
Jacques deLisle and Avery Goldstein (forthcoming 2014).
1 Carl Minzner, Chinas Turn Against Law, American Journal of Comparative Law 59 (2011):
935984; Donald Clarke, Jiang Ping: Chinas Rule of Law is in Full Retreat, China Law Prof
Blog, March 2, 2010, http://lawprofessors.typepad.com/china_law_prof_blog/2010/03/
jiang-ping-chinas-rule-of-law-is-in-full-retreat.html; and Benjamin L. Liebman, A Return
to Populist Legality? Historical Legacies and Legal Reform, in Maos Invisible Hand, ed.
Sebastian Heilmann and Elizabeth J. Perry (Cambridge, Mass.: Harvard University Press,
2011), 269313.
2 Whether China has actually become less stable is contested. It is clear, however, that Chinas
leadership during the 2000s became increasingly concerned with a perceived rise in instability.
3 Andrew J. Nathan, Authoritarian Resilience, Journal of Democracy 14 (2003): 617.
4 See my overview of this era in Liebman, A Return to Populist Legality?
5 For additional discussion, see Benjamin L. Liebman, Chinas Courts: Restricted Reforms,
The China Quarterly 191 (September 2007): 620638.
6 Chen Xi, China at the Tipping Point? The Rising Cost of Stability, Journal of Democracy 24
(2013): 5764.
7 Keith Hand, Resolving Constitutional Disputes in Contemporary China, University of Pennsylvania East Asian Law Review 7 (2011): 50159.
8 Minzner, Chinas Turn Against Law; and Liebman, A Return to Populist Legality?
9 Ibid.
10 Liebman, A Return to Populist Legality?
11 Mary Gallagher, Changes in the Worlds Workshop: The Demographic, Social, and Political
Factors Behind Chinas Labor Movement, in Dragon vs. Eagle: The Chinese Economy and U.S.China Relations, ed. Wei-Chiao Chung and Huizhong Zhou (Kalamazoo, Mich.: W.E. Upjohn
Institute for Employment Research, 2012), 99112.
12 Benjamin L. Liebman, Leniency in Chinese Criminal Law? Everyday Justice in Henan,
Berkeley Journal of International Law (forthcoming 2014).
13 Susan Trevaskes, The Shifting Sands of Punishment in China in the Era of Harmonious Society, Law & Policy 32 (3) (2010): 332361.
14 For more on compensation in labor disputes, see Yang Su and He Xin, Street as Courtroom:
State Accommodation of Labor Protests in South China, Law & Society Review 44 (1) (2010):
157184.
15 Wang Ying, Zhuanxingqi de zhongguo fayuan yu xinfang: shesu xinfang wenti shizheng
yanjiu [Chinese Courts and Petitioning in a Time of Transition: Empirical Research into
the Question of Litigation-related Petitioning], Ph.D. dissertation, Qinghua University
143 (2) Spring 2014

107

Chinas
LawStability
Paradox

(2010); and Benjamin L. Liebman, A Populist Threat to Chinas Courts? in Chinese Justice:
Civil Dispute Resolution in Contemporary China, ed. Margaret Y. K. Woo and Mary E. Gallagher
(Cambridge: Cambridge University Press, 2011), 269313.
16 Liebman, A Populist Threat to Chinas Courts?; and Benjamin L. Liebman, Malpractice
Mobs: Medical Dispute Resolution in China, Columbia Law Review 113 (2013): 181264.
17 Liebman, Malpractice Mobs.
18 Ibid.; and Xu Xin, Fal shifou zhongyaoLaizi Huanan de yige minjian shouzhai anli [Is
Law ImportantA Case Study on Informal Debt Collection in Southern China], Sociological
Studies 1 (2004): 5363.
19 One detailed study found that nearly half of all those who went to Beijing to complain about
the courts in one northeast municipality received direct benets from doing so, generally
cash or in-kind payments from the local court. See Wang, Zhuanxingqi de zhongguo fayuan
yu xinfang.
20 Xu Kai and Li Weiao, The Machinery of Stability Preservation, Caixin, June 6, 2011, translated to English in Duihua, June 8, 2011, http://www.duihuahrjournal.org/2011/06/translation
-machinery-of-stability.html; see also Benjamin L. Liebman, Chinas Law and Stability Paradox, in Chinas Challenges: The Road Ahead, ed. Jacques deLisle and Avery Goldstein (forthcoming 2014).
21 Carl Minzner, The Rise and Fall of Chinese Legal Education, Fordham International Law
Journal 36 (2) (2012): 335396.
22 For more detail on such organizations, see Liebman, Chinas Law and Stability Paradox.
23 Ibid.; and Xu and Li, The Machinery of Stability Preservation.
24 China Law Society, Law Yearbook of China (Beijing: China Law Yearbook Press, 20042012).
25 Black Jail Industries, Global Times, March 3, 2013, http://www.globaltimes.cn/content/
765426.shtml.
26 Tamir Moustafa and Tom Ginsburg, Introduction to Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge: Cambridge University Press, 2008), 12.
27 Heilmann and Perry, eds., Maos Invisible Hand.
28 Liebman, A Return to Populist Legality.
29 Alexis de Tocqueville, Democracy in America, vol. 1, ed. Phillips Bradley, trans. Henry Reeve
(New York: Alfred A. Knopf, 1946), 280.
30 Katharina Pistor, Towards a Legal Theory of Finance, manuscript draft, 2012.
31 Court adjudication committees generally consist of senior judges and decide sensitive or
difcult cases. The practice has been criticized due to the fact that it results in cases being
decided by judges who did not participate in the trial.
32 Nor are reforms designed to reduce the role of populism in the legal system: the decision
also calls for broadening channels for the masses to participate in the judiciary, although
it does also say that such participation shall be in an orderly manner, suggesting perhaps
that specic procedures should be created for such popular participation.
33 Raymond Li, Seven Subjects Off Limits for Teaching, Chinese Universities Told, South China
Morning Post, May 11, 2013, http://www.scmp.com/news/china/article/1234453/dont-teach
-freedom-press-or-communist-party-mistakes-chinese-academics; and Li Qi and William
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