Chinese democracy in action: The annual two sessions

As the first of the annual ‘two sessions’ of parliamnet opened today (3 March 2019), a rather useful and insightful article appeared in Xinhua News. It explains clearly the development and nature of Chinese democracy, or socialist democracy with Chinese characteristics. The article is copied below:

Every year, just before China’s annual two sessions, there are voices in the West declaring that China’s democracy cannot truly represent the people. But the Chinese people disagree.

Nearly 3,000 lawmakers and more than 2,000 political advisors are gathering in Beijing to forge consensus and pool wisdom for the building of a moderately prosperous society in all respects, the first of the country’s two centenary goals.

This is the mission of the annual sessions of the National People’s Congress (NPC), and the National Committee of the Chinese People’s Political Consultative Conference (CPPCC), two important platforms for China’s own style of democracy.

Democracy is not a decoration, but a means of solving problems.

The true meaning of people’s democracy is finding the best way to coordinate the aspirations and demands of the whole of society and making decisions that conform to the long-term interest of the people.

It is different from a system where some here-today-gone-tomorrow politicians obtain power in turn, often failing to keep their pre-elections promises.

To govern, in China, also means to serve.

While parties in the West increasingly represent special interest groups, Chinese democracy sees people, not capital, as the most important factor in society.

Chinese leaders are listening attentively to the people and responding to their demands.

The priorities of the Chinese government are how to keep the economy growing, provide better education, housing, environment, employment and healthcare for almost 1.4 billion people and maintaining social cohesion and peace and while achieving greater prosperity for all the people.

Over the past decades, China has been improving dramatically, not only economically but also ecologically, socially and culturally. China’s independence, sovereignty, security and the interests of development are well safeguarded.

China’s GDP has grown to 90 trillion yuan (13.4 trillion U.S. dollars), contributing about 30 percent of the world’s economic growth. Now the country has the world’s largest middle-income population. By 2020, there will be no extreme poverty in China. If this is not a proof of Chinese democracy at work, then what is?

China is a large country. Choosing the right path for its political progress is a fundamental and vital issue. The country began to learn about democracy a century ago, but soon found Western politics did not work here. Decades of turmoil and civil war followed.

It was after the founding of the People’s Republic of China that the country developed its own style of democracy. The first session of the first CPPCC National Committee was held in 1949. The first NPC, the highest organ of state power, was convened in 1954. The two platforms have been witnessing the vitality of Chinese democracy under the leadership of the Communist Party of China.

The system is an integration of the leadership of the CPC, the running of the country by the people, and law-based governance, which is guaranteed by the effective implementation of “democratic centralism,” the fundamental organizational principle of the CPC and the principle of China’s political system as stipulated by the country’s Constitution.

It ensures that the CPC’s positions become the will of the country through legally established procedures, and on the other hand, the CPC acts within the scope of the country’s Constitution and the law, and leads the people in effectively governing the country and engaging in democratic elections, consultations, decision-making, management, and oversight.

Rather than creating policy conundrums or delays – as is often the case with parliaments in Western nations when the ruling party or coalition does not hold a majority – the people’s congress system lends support to and supervises the governments, supervision commissions, courts and procuratorates to achieve effective governance and rule of law.

The NPC is the top legislative body. Lawmakers must learn about the most pressing needs of the people as well as national urgencies and push forward national policies. Deputies who fail to fulfill their duties lose their positions.

Chinese democracy also includes multi-level and institutionalized consultation. The CPPCC is an important organ for multiparty cooperation and political consultation led by the CPC.

The CPC and non-Communist parties cooperate with each other, working together for the advancement of socialism and striving to improve people’s standard of living. The relationship maintains political stability and social harmony and ensures efficient policy making and implementation.

There are also various mechanisms available for the public to give input into policy making, including self-governance at the grassroots level such as village committees.

Some traditional Western political theories state that it is inevitable that China will pursue Western democracy once it becomes well-off, eventually fully following Western political systems.

This reflects arrogance and self-indulgence, a warning signal that the model is in decline.

China wants to learn as much as possible from the West and work with the West. However, the Chinese are, just as many Westerners have become, wary of the deep troubles of a capital-manipulated and conflict-driven model of democracy.

China has never sought to export its system to other countries. Its example just shows there is more than one model of democracy in the world that can produce good governance.

If the West wants to retain and renew its values, it is time to stop judging other countries by Western norms and rules.

Democracy is a living organism. Any model that refuses to develop to meet the demands of time will only end up in the dust.

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Top ten issues for this year’s parliamentary sessions in China

On Sunday, 3 March, 2019, the annual ‘two sessions’ will meet once again in Beijing. They are the National People’s Congress (NPC) and the Chinese People’s Political Consultative Conference (CPPCC), the highest legislative and advisory bodies in the country. Too little is known outside China about these core structures of Chinese governance, which involves more than 5,000 legislators and avisors, so here is a summary of results from a survey conducted by the People’s Daily. The survery, which asked people to list the top ten issues of public concern, garnered more than 4.4 million responses.

Chinese Rule of Law and Religion

In a small number of countries (former colonisers all) somewhat sensational and misinformed accounts have appeared of a new wave of religious ‘repression’ in China, targeted at Christian groups and certain forms of Islam (the Uyghur in Xinjiang). Crosses have been removed, churches have been closed down, pictures of Mao Zedong have been installed, and misguided believers have undertaken vocational and ideological training. What they do not say is that the only religious activities they mention are actually illegal. Why? They constitute so-called ‘house churches’, which are not registered with the government and are thereby outside the law. In this respect, they are no different from small Muslim cells in some (usually western) parts of China where extremism and radicalism are promoted. Obviously, these activities too are illegal.

What these reports miss is the underlying reason for such a development (I am never sure whether this is deliberate or due to ignorance). The reason lies in consistent, uniform and countrywide application of socialist rule of law. Since I have addressed the rule of law in an earlier piece, all that is needed here is a summary.

Rule of Law

On 11 March 2018, the annual National People’s Congress amended the preamble to the Constitution, from ‘improve the socialist legal system’ to ‘improve the socialist rule of law’. The change was only in the final character of the phrase, from 制 to 治 – although they have exactly the same pronunciation: zhì. Significantly, there is no inherent opposition between ‘legal system (fazhi)’ and ‘rule of law (fazhi)’: the former designates the legal system as one among others, such as economic, political and cultural systems; the latter indicates that law is foundational to all the other systems.

Why the shift? The reason lies in the opposition between ‘rule of law (fazhi)’ and ‘rule of human beings (renzhi)’. From the late 1970s to the 1990s, debate over this tension led to a clear preference for rule of law, since ‘rule of human beings’ recalled the ‘evil fruit (eguo)’ of the Cultural Revolution and the unwitting evocation of the sage-king whose virtue was key. In light of this debate, ‘rule of human beings’ came to influence the understanding of ‘legal system’, which at times bore the sense of ‘rule by law’. More specifically, the existence of a legal system was not enough to prevent ‘rule by human beings’. Thus, from 1997, we find the promotion of rule of law, or literally a ‘socialist rule of law country (shehuizhuyi fazhi guo)’, which entered the Constitution in 1999.

The test of all this is in practice, where the key phrase is ‘governing the country according to law (yifazhiguo)’, particularly ‘in all respects’ or ‘in an all-round way (quanmian)’. As Xi Jinping put it in his report to the CPC nineteenth congress in 2017: ‘We must promote the rule of law and work to ensure sound lawmaking, strict law enforcement, impartial administration of justice, and the observance of law by everyone’. It is precisely Xi Jinping – who is seen by some as an old-style communist hardman – who is assiduously promoting socialist rule of law. The implications are that everyone in China – from the highest officials through citizens to foreigners – is subject to the rule of law.

Religion

The impact is being felt in all areas, whether prostitution, corrupt CPC officials, foreigners on improper visas … Long is the list, but I would like to focus on the revised Regulation on Religious Affairs (published in 2017, coming into effect in early 2018). It is by no means new, for it continues an emphasis already apparent in the 1982 Constitution. As article 36 of that Constitution state: ‘Citizens of the People’s Republic of China enjoy freedom of religious belief … The state protects legitimate religious activities. No one may use religion to carry out counter-revolutionary activities or activities that disrupt public order, harm the health of citizens or obstruct the educational systems of the state. No religious affairs may be dominated by any foreign country’.

The revised regulation of 2018 may be summarised in article 3: ‘protecting the legal, stopping the illegal, containing the extreme, resisting infiltration, and combating crimes’. Let us see what these phrases mean.

Protecting the legal (baohu hefa): legal religious activities are not only permitted, but also proactively protected by government at all levels. Examples of such activities include the Three-Self Patriotic Movement (TSPM) churches of Protestant persuasion, the 2018 agreement between the Chinese government and Vatican on uniting the two arms of the Roman Catholic Church in China, Islamic institutions, Buddhism and so on. As the recent ‘white paper’ indicates, China now has 200 million believers of various faiths, of which the legal forms of Christianity number about 50 million. In other words, if you want to practice your religion in China, there are more than enough legally recognised ways to do so.

Stopping the illegal (zhizhi feifa): unregistered religious activities are illegal, including the ‘house churches’ that have been the focus of some sensationalised accounts in the small number of countries mentioned earlier. Through a complex and diverse history, some ‘house churches’ have developed more conservative evangelical theology, anti-communist assumptions and can be subject to foreign interventions by conservative international Christian bodies. Further, they can see themselves as the only genuine form of Christianity, dismissing organisations such as TSPM and its associated China Christian Council as ‘compromised’ or ‘heretical’. How is ‘stopping the illegal’ practiced? More directly, unregistered meeting places have been closed down, which has risen to a new level after the revised regulation – at times heavy-handedly and with reprimands from the government. Indirectly and informally, individual TSPM members often encourage those involved in ‘house churches’ to join registered churches, while TSPM ministers ensure that congregations are not tempted by ‘house church’ claims.

Containing the extreme (ezhi jiduan): the focus is not merely on terrorism in Xinjiang and Tibet, but also intolerance among other religious groups. Evangelical Christians, who tend to be found in unregistered ‘house churches’, are mostly at fault on this matter. In the new regulation and the white paper, key terms relating to these concerns appear: religious harmony (zongjiao hemu), social harmony (shehui hexie), stability or steadiness (wending) and security (anquan) – although each term is difficult to translate.

Resisting infiltration (diyu shentou): no religious organisation should be influenced or controlled by an outside body – a consistent feature of anti-colonial sovereignty.

Combatting crimes (daji fanzui): if ‘illegal’ includes sins of omission, ‘crime’ designates sins of commission.

By now it should be obvious what ‘governing the country according to the rule of law’ means in relation to religion. However, it is not a Western liberal approach to rule of law, which is framed to protect capitalism and the private individual. Instead, as an article by Chen Youwu and Li Buyun (2018) observes, ‘socialist rule of law with Chinese characteristics’ arises from the fact that China follows the socialist road, which entails Marxist jurisprudence, takes account of China’s concrete conditions, socialist democracy and a socialist market economy.

To sum up: as socialist rule of law is being enforced across the country, everyone and every organisation is subject to this rule of law, which is central to the construction of socialism. In this respect, illegal religious activities are no different from: foreigners who operate in China under false pretences; the scam operators who used to be prevalent a decade or so ago; prostitution which has effectively been shut down in more and more parts of China; the fake student ID cards that used to be for sale close by where I live in Beijing; or the government official who secreted away monies in offshore accounts (these are rare indeed as I write).

Some may wish to practice religion in China and some may not, but if you want to do so, it is possible in perfectly legal ways. If not, watch out. The socialist rule of law is here to stay.

Pre-publication version of ‘Sovereignty and Human Rights’ available

The final item of three on human rights from a Chinese Marxist perspective is now available. It is my most complete study on the question, offering a comparison between Western European liberal and Chinese Marxist traditions. It may be found at Australian Academy of Humanties symposia website.

‘Sovereignty and Human Rights: A Comparison between the Western European liberal and Chinese Marxist Traditions’. Link here.

Socialist Rule of Law with Chinese Characteristics

Recently, I came across two assertions, peddled by Western liberal scholars who should know better:

1) China does not have ‘rule of law’, but only ‘rule by law’. The implication is that law is a tool or weapon of governance, and that the government itself is not subject to the law.

2) Since Xi Jinping became chairman, China has experienced an unremitting pattern of ‘authoritarian repression’. Governmental corruption, foreigners working under false pretences, unregistered educational institutions, illegal religious gatherings, malicious social media, shadow banking, prostitution – these and much more have all felt the sting. To use a metaphor used by Xi himself, it is like a hot chili dish: many have been sweating under the pressure of scrutiny.

But it is rarely asked what lies behind such a move. Is it simply because the determined Chinese government is by nature ‘authoritarian’, as Western European political terminology likes to characterise communism? Is it due to the trawling out of old Cold War rhetoric, since global communism is once more a threat to the fragile liberal ‘world order’? Or is it because Xi Jinping is simply an old-style Leninist hard man? The speculation could go on, but it routinely misses the mark.

Instead, we need to focus on the development of a socialist rule of law in China. This task entails engaging with the careful scholarship and often complex legal arguments that elaborate on the question of rule of law. While there is a plethora of such scholarship in China, I would like to focus on two recent and detailed studies: He Qinhua and Qi Kaiyue, ‘Rule by Law Becomes Rule of Law: The Constitutional Amendment Promotes Construction of a Socialist Rule of Law’ (2018); Chen Youwu and Li Buyun, ‘Forty Years of the Theory of Rule of Law in China: Development, Innovation and Prospects’ (2018). Both articles use the framework of historical development, especially over the four decades of the reform and opening up, but in the process they provide careful assessments of the debates over key legal terms and the overall framework of the construction of socialism.

Key Terms

On the 11th of March, 2018, at the thirteenth National People’s Congress, the preamble to the Chinese Constitution was amended from ‘improve the socialist legal system’ to ‘improve the socialist rule of law’. The change was only in the final character of the phrase, from 制 to 治 – although they have exactly the same pronunciation: zhì. The amendment may seem simple enough, but – as might be expected – it has a long history and entails careful differences in meaning. The following is an effort to explain, as clearly as possible, what it means.

Let me begin by identifying the main terms used in debates and government policies.

Fazhi (法制): This term is a two-character abbreviation of falü zhidu (法律制度), which has the meaning of ‘legal system’, although it is occasionally translated as ‘rule by law’. The term designates the various institutions that comprise the whole system of law in a country.

Fazhi (法治): Rule of law, with the sense that the law (fa)[1] rules or governs. In this case, zhi (治) has the senses of administer (guanli) and govern (zhili). This formulation raises the law from being one component of a larger whole to being a determining framework for the whole.

Renzhi (人治): This is the ‘rule of human beings’, and is the opposite of ‘rule of law’.

Yifazhiguo (依法治国): The most common phrase of all, with the meaning of ‘governing the country according to law’. The character yi (依) has the senses of ‘depend on’, ‘comply with’, and thus ‘in accordance with’. In many respects, ‘governing the country according to law’ is the practical reality of ‘rule of law’.

Shehuizhuyi fazhi (社会主义法治): ‘Socialist rule of law’, in clear distinction from a capitalist and ‘Western’ rule of law.

Legal System (Rule by Law) and Rule of Law

Let us focus initially on the relationship between ‘legal system’ and ‘rule of law’, especially in light of the constitutional amendment of 2018 (He and Qi 2018, 7-8).

From ancient usage to the multi-volume Cihai dictionary,[2] ‘legal system’ appears with two overlapping senses: a static meaning with reference to the existing laws and regulations of a country; a dynamic sense, which includes formulating legislation, revision, enforcement and supervision.[3] Further, a legal system is one system among others, comparable to the economic, political and cultural systems of a country. All of these are systematic components of a larger whole. Obviously, the term is in its basic sense quite neutral: every country has its legal system, in both static and dynamic dimensions.

As for ‘rule of law’ (fazhi), the modern Chinese meaning has three influences. The first is from the Western liberal tradition’s notion of ‘rule of law’. Chinese scholars are more than willing to acknowledge this influence, especially its role in spurring the development of a distinct Chinese approach. At the same time, they are also very clear that the concept should not be appropriated in its full liberal sense, in which rule of law has been developed within a capitalist framework in order to bolster bourgeois democracy and the sacrosanct private individual. Instead, it has – like Marxism – been ‘sinified’ (zhongguohua). Thus – secondly – a common move is to go back to classical texts to locate usages of fazhi. We need to be very careful here, since ancient usages of fazhi do not have the modern sense of ‘rule of law’. Instead, the basic position is that if standards, regulations, and thereby the law is the underlying basis and is systematically enforced, a country’s governance will be stable and strong; if not, the result will be chaos.[4] Intriguingly, it was the oft-maligned ‘Legalists’ (fajia)[5] who proposed that ‘strong governance arises from standards and the law’ (zheng qiang shengyu fa), and that governance should work ‘according to law as the basis’ (yifaweiben) (He and Qi 2018, 7).

Third – and most importantly – is the Marxist tradition. This is where the ‘socialist rule of law comes into play. As Chen and Li (2018, 73) observe, there is a fundamental difference between ‘socialist rule of law with Chinese characteristics’ and the rule of law found in Western liberal traditions. How? China follows the socialist road, which entails Marxist jurisprudence, takes account of China’s concrete conditions, and embodies the will the Communist Party and the people.

In light of this brief exposition, it remains unclear why there was a distinct shift in the constitutional amendment of 2018, from ‘legal system’ to ‘rule of law’. On initial appearances, there appears to be relatively little conflict between the two terms, for they demarcate distinct realms. A legal system has both static and dynamic senses, and it is one among a number other systems in any country. Rule of law is different, for it frames not only the nature of the legal system but also the other systems in question.

Rule of Law versus Rule by Human Beings

At this point, another crucial distinction needs to come into play: between rule of law and rule of human beings (renzhi 人治). As Chen and Li point out (2018, 67-68), this opposition was the real impetus for emphasising the rule of law.[6]

On this matter, the debates from 1978 to 1997 are instructive. They may be divided into three positions: 1) Laws are made human beings and carried out by human beings, which in a Marxist framework entails the proletariat, Communist Party and people. It follows – so the argument went – that all a country needs is a legal system developed by human beings; it does not need rule of law; 2) The opposition between ‘rule of law’ and ‘rule of human beings’ is a false one, for a country requires both; 3) The superiority of the rule of law over the rule of human beings. Thus, the rule of human beings risks emphasising that it matters not whether the law is good or bad, but rather that the ruler is wise and virtuous (sheng zhu xian jun). By contrast, the rule of law is inseparable from socialist democracy: socialist democracy is the basis of rule of law and rule of law is the guarantee of socialist democracy.

The third position came to be accepted by the end of the 1990s, for the following reasons. To begin with, one can see a certain influence of ‘rule of human beings’ on the ‘legal system’. In its proper usage, ‘legal system’ is a neutral term – as we have seen earlier – but when connected with the ‘rule of human beings’ it may become ‘rule by law’, in which the law becomes an instrument of rule. In fact, it was precisely this influence that led to the alternative translation of ‘legal system’ (法制) as ‘rule by law’. The catch is that such a translation may be misleadingly ambiguous in English: on the one hand, it can mean ‘rule according to law’; on the other hand, it may suggest ‘by means of’, with law as a tool of governance, deployed by those in power as they see fit.

This connection facilitated a greater emphasis on rule of law, and thus the shift from ‘legal system’ – now understood as ‘rule by law’ – to ‘rule of law’. At the same time, there continue efforts to ensure that ‘legal system’ remains uncontaminated by ‘rule of human beings’. This approach is especially evident in the study by He and Qi: after delineating the different positions concerning ‘legal system’ and ‘rule of law’,[7] they argue that one must maintain distinct senses for both terms but also maintain their mutual viability. They are distinct entities but they operate in a fruitful dialectical relationship: the legal system requires rule of law to enable its improvement; at the same time, rule of law is meaningless without a legal system in which rule of law can be embodied. In other words, the legal system is the basis of the rule of law, but rule of law constitutes the goal and value of the legal system (He and Qi 2018, 11).

Further, we may identify a distinct historical reference (recent and ancient), which is embodied in the observation that the ‘rule of human beings’ brings eguo – evil fruit or results (He and Qi 2018, 14). The more recent reference is to the trauma of the Great Proletarian Cultural Revolution, in which Mao Zedong – through the ‘cult of personality’ – was raised to a whole new level as the leader who would keep matters on the right path against all those who would ‘deviate’. This is clearly the allusion in Deng Xiaoping’s observation in 1986: ‘Through the reform, we intend to straighten out the relationship between the rule of law (法治) and the rule of man (人制)’ (Deng 1986, 176-77). The twist is that during the Cultural Revolution Mao unwittingly embodied the ancient Confucian sage-king, whose virtuous will would ensure that all was good irrespective of whatever laws were in place. And this is the more ancient register of this point, for there is a tendency in Confucianism is to elevate the ‘rule of human beings’ above the ‘rule of law’ – as long as the human beings in question were rulers who embodied virtue. After the Cultural Revolution, the response has been to emphasise more and more that the rule of law requires human rationality, legal principles that are conducive to the maintenance of legal authority, and the need to protect human rights for the sake of a good and orderly society (He and Qi 2018, 8).[8]

Governing the Country According to Law

Finally, we come to the practical implications of all this complex legal debate. The practical dimension is embodied in the phrase, ‘governing the country according to law’ (yifazhiguo). In other words, this phrase indicates the connection between theory and practice: the development of the theory of rule of law is inescapably related to the practice of governing the country according to law. ‘Governing the country according to law’ is particularly favoured by Chen and Li – not least because it is a preferred designation by Xi Jinping – and they connect its development closely with the four decades of the reform and opening up (gaige kaifang). They identify (2018, 65-67) three main stages in its development:

1) 1978-1996, the early stage of fermentation, in which rule of law begins to appear as a term, in opposition to the rule of human beings.

2) 1997-2011, the gradual formation of the rule of law, with the landmark identification in September of 1997, at the fifteenth national congress of the CPC, that connected ‘governing the country according to law’ and building a – literally – ‘socialist rule of law country’. This phrase was incorporated in the Constitution in 1999.

3) 2012 to the present, which entails the development in all respects of both practice and theory. This period is based on the principle (from 2012) that ‘the rule of law is the fundamental way of ruling the country’. This principle was elaborated further at subsequent congresses and in statements by Xi Jinping.

This is all very well, but what does it mean in practice? The key term here is ‘in all respects’ or ‘in an all-round way’ (quanmian). At this point it is best to quote Xi Jinping, from his lengthy report to the nineteenth congress of the CPC in2017: ‘We must promote the rule of law and work to ensure sound lawmaking, strict law enforcement, impartial administration of justice, and the observance of law by everyone’. He added that the law must be ‘enforced in a strict, procedure-based, impartial, and non-abusive way’ (Xi 2017b, 35; 2017a, 16).

Simply put, it means that everyone in China – whether citizens or foreigners – are subject to the observance of the law. The socialist rule of law applies to all, from the highest official in the Politburo, through the common person working hard for the advancement of China, to any foreigner who happens to be in China for whatever reason.

To return to the (deliberately) misconstrued point with which I began: it is not that Xi Jinping is a communist hardman, repressing what Western liberals regard as ‘freedoms’. And it is certainly not the case that socialist China deploys ‘rule by law’ to achieve its aims – the use of this phrase is an ignorant and malicious misreading of the actual situation in China. Instead, it means that Xi Jinping and the government are serious about strict observance of the socialist rule of law. Anyone who takes time to study this matter will soon realise that this is the reality in China today.

These days, you simply cannot get away with paying lip-service to the law and doing otherwise, with a carefully targeted wad of cash for the official involved. This applies to a whole range of activities that were regarded as somewhat normal a decade ago: prostitution, which has been effectively shut down in more and more places in China; unregistered educational institutions that used compliant visa officials to give foreigners dodgy visas; fake student identity cards for discount travel in the holiday seasons; gifts during festivals for compliant government officials; unregistered religious activities, through which foreigners used to think they might undermine the Chinese government; foreign involvement in protests in Hong Kong in the recent past; or indeed foreigners working in China in a grey zone of tourist or business visas.

The list could go on and on, but the point should be clear: socialist rule of law in China is here to stay and it will be developed much further.

Bibliography

Chen Youwu and Li Buyun. 2018. ‘Zhongguo fazhi lilun sishi nian: Fazhan, chuangxin ji qianjing’. Zhengzhi yu falü 2018 (12):64-75.

Deng Xiaoping. 1986 [2008]. ‘Guanyu zhengzhi tizhi gaige wenti (1986.09-11)’. In Deng Xiaoping wenxuan, Vol. 3, 176-80. Beijing: Renmin chubanshe.

Graham, Angus Charles. 1989. Disputers of the Tao: Philosophical Argument in Early China. La Salle: Open Court.

He Qinhua and Qi Kaiyue. 2018. ‘Fazhi chengwei fazhi: Xianfa xiugai tuijin shehuizhuyi fazhi jianshe’. Shandong shehui kexue 275:5-15.

Liu An. 2010. The Huainanzi: A Guide to the Theory and Practice of Government in Early Han China. Translated by John Major, Sarah Queen, Andrew Meyer, Harold Roth, Michael Puett and Judson Murray. New York: Columbia University Press.

Xi Jinping. 2017a. Juesheng quanmian jiancheng xiaokang shehui, duoqu xinshidai zhongguo tese shehuizhuyi weida shengli (2017.10.18). Beijing: Renmin chubanshe.

———. 2017b. Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era: Report to the 19th National Congress of the Communist Party of China, October 18, 2017. Beijing: Foreign Languages Press.

Notes

[1] I follow the modern Chinese approach in seeing fa (法) as primarily meaning ‘law’. Traces of its earlier meanings may be found in its semantic field, especially the two senses of ‘method’ and ‘standard’.

[2] The earliest appearance is in the ‘Yueling’ (Proceedings of Governments in Different months) chapter of the Book of Rites, dating back to the fifth-second centuries BCE. Here we find ‘restore the legal system’ (xiu fazhi), in the dynamic sense (https://ctext.org/liji/yue-ling). The Cihai is the most comprehensive dictionary in China, having first been published in 1915. It will appear in yet another revised version in 2019. The Cihai distinguished three senses of ‘legal system’: the widest, which incorporates all the laws (written and unwritten) of a state and its various political, economic and cultural systems; a medium, which incorporates legal system and legal order; and the narrowest, the legal system itself (falü zhidu). The narrowest is the most common usage.

[3] One may see this distinction in the use of the zhi (制) character, which can mean both ‘system’ (zhidu) and ‘formulation’ (zhiding).

[4] This is particularly the case with Huainanzi (compiled in the second century BCE), in the ‘Fanlun ’ chapter: ‘Knowing the origin of law-governance [法治], one can change with the times; not knowing the source of law-governance [法治], although following antiquity, one ends in chaos’ (zhi fazhi suo you sheng, ze ying shi’er bian; buzhi fazhi zhi yuan, sui xun gu zhong luan) (https://ctext.org/huainanzi/fan-lun-xun). Or, as the relatively recent translation of the Huainanzi puts it, somewhat more voluminously: ‘‘If you understand from whence law and governance arise, then you can respond to the times and alter. If you do not understand the origin of law and governance, even if you accord with antiquity, you will end up in disorder’ (Liu 2010, 611).

[5] ‘Legalism’ presents us with a classic trap of inadequate terminology that continues to be used widely, albeit always with caveats: the ancient fa is not restricted to ‘law’ and they were not a ‘school’ as such. Added to this is the denigration – based on selective readings of certain texts – of ‘Legalism’ as ‘an amoral science of statecraft’ (Graham 1989, 267-92).

[6] Notably, the fabled Cihai dictionary makes this distinction: rule of law is opposed to rule by human whim (He and Qi 2018, 8)

[7] He and Qi also delineate three positions, although now in relation to ‘legal system’ and ‘rule of law’ (2018, 8-11): 1) the two terms largely mean the same, whether ruling ‘according to’ law, or ‘rule of law’; 2) they are quite distinct, where ‘legal system’ can tend towards an instrumentalist and autocratic view, while ‘rule of law’ is closely connected with (socialist) democracy, the universally binding function of law, and the ability for the term to be more closely attuned with the times; 3) connection and difference, in which one can see certain overlaps (as with the first point), but also distinct differences (second point). Perhaps the best formulation is that every country has a legal system, among other systems, but not every country has rule of law.

[8] We may detect here an influence from the ‘Legalist’ tradition – which was praised by Mao in his anti-Confucian moments as an alternative path for the sinification of Marxism – with their implacable emphasis on the foundation function of law.

Lousy Evidence: On the Uselessness of ‘Defector’ Testimony (with relation to Xinjiang)

Some years ago now, there was self-styled ‘historian’ called Robert Conquest. He began his career, in 1948, working for the innocuously sounding ‘Information Research Department’, or IRD. This was an anti-communist unit under the auspices of the British Foreign Office. It was kept secret as long as possible (but the Russians knew about it) and was focused on developing anti-Soviet propaganda, in colonial countries and in the British labour movement. It soon became the largest unit in the Foreign Office.

Apart from a significant number of ‘defectors’ from the Soviet Union – in other words, anti-communist operators from the Russian bourgeoisie and aristocracy – it also employed a certain Robert Conquest. While undertaking this worthwhile task, Conquest also gathered much ‘testimony’ from the ‘defectors’. By 1956, Conquest had more than enough material and set out to become a ‘freelance’ historian and writer.

The result was a series of works, of which the most well-known are:

1968. The Great Terror: A Reassessment.

1986. The Harvest of Sorrow: Soviet Collectivization and the Terror-Famine.

1992. Stalin: Breaker of Nations.

I almost forgot the most intriguing work of all, co-authored with Jon White. It is called What to Do When the Russians Come: A Survivor’s Handbook, published in 1984.

These works appeared at the right time, when the ‘West’ was desperate for information to demonise not merely Stalin, but communism as such. In these works, we find the beginnings of the notions of ‘ethnic cleansing’ and the ‘Holodomor’ (Ukrainian ‘Holocaust’). For Conquest, communism was simply an evil, a blight on history, and the communist party was a secretive, paranoid outfit bent on a hellish world domination.

There was one problem: the nature of his ‘evidence’. Conquest relied on the material supplied by the aforesaid ‘émigrés’ or ‘defectors’, who had escaped the evil clutches of communism to tell their stories. Lurid stories they were, with one competing with the other to tell yet another tale. Let us compare this with ‘defectors’ from the DPRK (North Korea). They are paid 1 billion won (almost USD 1 million) if they have ‘useful’ information. You can imagine what sort of ‘information’ they are keen to supply.

Real historians have been less than impressed with Conquest’s methods. For example, already back in 1986 Robert Thurston described Conquest’s methods as ‘deskbound parochialism’ that made use of ‘lousy evidence’. In other words, it is simply unreliable for any serious historical research.

Fast-forward to 2018-2019 and the situation in Xinjiang, China. As the confected narrative of ‘ethnic cleansing’ among the Uyghur minority nationality has begun to unravel in light of the full story, what have the media in a small number of former colonial countries begun to do? Trot out a ‘defector’. This person proceeds to give a heart-rending account of ‘torture’ at the hands of the evil Chinese authorities (are not all communists incarnations of the devil?).

This is an old trick, used on many occasions in the past – the Soviet Union, DPRK, China in relation to Tibet, and now in relation to Xinjiang, China.

But it remains pure anti-communist propaganda, in the tradition of Robert Conquest. It is simply lousy evidence.

Why I am in favour of brainwashing

Every now and then, I need to address an audience with brains that have been saturated with all types of liberal and bourgeois rubbish. So I have decided to begin my talks as follows:

I am in favour of brainwashing … it is a very, very good practice.

As Mao Zedong said in 1957 to a group of students:

Some foreigners say that our ideological reform is brainwashing. As I see it, they are correct in what they say. It is washing brains, that’s what it is! This brain of mine was washed to become what it is. After I joined the revolution, [my brain] slowly washed, washed for several decades. What I received before was all bourgeois education, and even some feudal education … At that time, none of us knew anything about how the Chinese revolution was to be promoted!

So I ask you to take a moment to wash your brains, as far as possible. Identify all of the liberal, bourgeois assumptions you might have, especially concerning communism. Only in this way can you begin to understand what socialism with Chinese characteristics is.