China Law Blog

This is an interesting post and article. Thank you for sharing it.

One thing that bothers me about such articles, though, is that like the McDonald's coffee spill case reported by the US press as the poster child of supposed frivolous litigation (but for those who have studied the facts of the case, and what happended from beginning to end including the settlement amount recommended by the mediator which McDonald's rejected out of hand and the jury award came in at close to that same amount!, etc.) such cases/examples are outliers the press fixates on and have no bearing to the average case (business or other) in the system that work pretty well. Thus, isn't it far too early to tell where or which way the Chinese model is leaning and whether that is a good or bad thing? We have been hearing for decades (or more) in the US how litigation is the beginning of the end for mankind and business, but the sky has not yet fallen. I am wondering whether a little rough and tumble litigation for Chinese society for a few years to help build its body of commerical law is not such a bad thing from a macro and rule of law perspective.

Chris --

Did you mean to leave this comment here or on the post regarding the college student lawsuit? Either way, I do agree that it is dangerous to extrapolate from one case for an entire country, both because it is just one case, and also because, as you point out with the McDonald's case, we who were not there usually do not have all the facts.

I think a little rough and tumble litigation will be just fine for China as its people, lawyers, and judges figure out how much or how little they really want. The thing that strikes me about China (as compared to let's say, Korea, Japan, or Russia) is how much their lawyers and laws are similar to the U.S.

Yes. My bad. Meant to post on the other section. Long day. Bad eyes. Worst possible combination!

Chris --

Never happens to me. Never.

Dear Dan,

Thank you for drawing the attention of your readers to my piece about the nature of present day China's governance and society, and for recommending it so highly.

I think that you and I share in the belief that China's capitalism, for all its undeniable faults, is a historically progressive force, and for this reason we are both cautiously optimistic about China's future.

We do, however, as you say, have our differences in opinion. When I initially wrote that piece, quite a few months ago now, my assertion that China, in some ways at least, is less of a police state than many Western democracies was based primarily on my own personal observations, having lived in Australia, Britain and now China. In seems to me that Western societies are far more efficient when it comes to information-gathering and record-keeping, as well as with information-sharing between government departments, etc. This bureaucratic efficiency is aided by superior technology that is more evenly deployed, and, ironically, by the very existence of the welfare state, which requires the gathering of huge amounts of personal information. Only last week, on November 2nd, a study was released by the human rights organisation Privacy International, which lends empirical support to my claims. I have thus added the findings of this study to my piece, but basically the research shows that many Western countries do indeed police their citizens more efficiently and thoroughly than does China. When it comes to communications interception for example, China was ranked as the 18th worst offender, after such countries as New Zealand, the U.K., the U.S., and Italy. The U.K. in fact was declared the surveillance capital of the world.

My argument is that as China develops, so too will its ability to police its citizens, as it increasingly bureaucratises the life of its citizens through the mechanisms of the modern state. I also argue that its citizens will become increasingly less free as its growing middle class become more fully integrated into the consumer society. This particular phenomenon - a growing middle class - will thus also increase society stability.

Every coin has two sides!

I did not discuss China's developing legal system in any real detail, but I should have devoted an entire section to the topic, since I have learnt (from reading this site) that it too is evolving.

All the best,
Mark Anthony Jones

Mark --

Thanks for checking in. You are welcome.

I do think we both share the belief that it is unfair for people to harshly criticize China without accounting for from where it is coming and how fast it has gotten here. Obviously China has its problems, but it is not Iran, Saudi Arabia, Yemen, Zambia, Egypt, Syria, North Korea, etc.

I have glanced at the study to which you are referring and the good thing about it is that it ought to help convince people that the overwhelming majority in China today do not have a boot on their necks. But, near as I can tell, the study fails to make all sorts of necessary distinctions.

I see where you are coming from in claiming that its government's ability to police its citizens will increase (although it has greatly decreased since the 1960s and 1970s, right?) but if you are going to claim that its citizens will become increasingly less free because they will become more consumeristic (is that even a word?), then I am not buying it.

Dan, I think my attitude toward consumerism needs some clarification: for me, consumerism both increases and decreases the freedom of individuals. On the one hand, greater consumer choice allows individuals to express a certain degree of individualism when clothing themselves, when decorating their apartments, when seeking entertainment, etc. More choice certainly does provide greater freedoms of expression. But on the downside, the pleasures of consuming can also very often entail an element of libinal manipulation, which equates to a fundamental loss of freedom for the individual. Every coin has two sides, remember! Consumerism leads to what Marcuse termed "repressive desublimation" - an argument that I find convincing, and am willing to buy, though I admit that he does under-state the significance of human agency when it comes to questions of individual freedom and the impacts of consumerism.

Mark --

That's exactly it, he understates the significance of human agency and I do not.

Sorry, I have to say this is another of MAJ's nonsense/apologist writings.

Village elections are window dressing because of a few things. First they are not new. If they had been introduced by Hu Jintao, maybe they could have shown movement. But that isn't the case.

More importantly, China's "white paper" on democracy spelt out very clearly that one-Party rule was here to stay. You cannot have democracy if one political organisation not only claims total power, but will remorselessly beat the preverbial out of anyone who dares to suggest that's not good for the country.

Remember Wen Jiabao talking about city-level elections? Well that got buried pretty quick, didn't it! It was if he had never said it. And now we have comments about China having the free-est internet in the world coming from the lips of Chinese officials. What rot!

The CCP bounces between saying things like "China is already a democracy - shut up foreign devil-man for putting China down!" and "China is too poor and our peasants too stupid - we're not ready for democracy". This demonstrates the fact that China is not moving forward politically, because the message changes depending on the situation. To move forward is to acknowledge the current system is inadequate and that there is a final goal to be reached - in this case democracy. But the CCP won't do that. It wants to have its cake and eat it, by saying China will change when it's ready but not surrender power under any circumstances.

I don't see any major reforms happening this decade. And if the CCP waits too long before trying to reform next decade, economic troubles (which will come about at some point) could mean such an effort would be far too late.

Raj --

Thanks for checking in. I am certainly not saying China is democratic and I am certainly not saying it is inexorably on the path to democracy either. And yes, one would be crazy to deny the existence of the great firewall. At the same time, however, China is not Saudia Arabia, Cuba, North Korea, Libya, Yemen, Syria, Somalia, Zimbabwe, Turkmenistan, etc. I think many westerners fail to realize where China fits in a worldwide scale of openness/democracy. It should not be disputed that China needs to do so much more, yet at the same time, we should be fair in chronicalling where it is now and we must also be careful in how we push it to get to the next step. I know I myself will be stepping into a quagmire here, but I think Bush's biggest mistake in Iraq was that he actually believed he could democratize an Arab country when there is absolutely nothing in the last 200 years of their history to indicate that would have been possible, nor anything to indicate that is going to occur in any Arab country in the next 20 years. I say this not to slam the Arab countries, but to point out that we (whoever we is) cannot impose democracy from outside (as much as we, and I include myself in this) would like it to happen. If Iraq has taught us anything, I hope it has taught us that democracy is every bit as important as we believed before we went in, but that it has to have some indiginous basis to flourish. I fully recognize China is farther along towards democracy than Iraq ever was (or, unfortunately, ever will be), but I see the role of the West in helping China get there, not slamming it for not having gotten there just yet. But, let me be clear, when I say this, I am NOT calling for the West to remain silent on human rights violations in China or to stop pushing in other areas either. I am just saying that we must be patient and let China get there on its own, as it must. I am not confident China will be a democracy within 25 years, but at the same time, I do not think we Westerners can do very much to advance it and we can certainly do a lot to harm it.

Raj - with all due respect, I doubt, judging from your comment below, that you have actually bothered to read my full article carefully, because if you have, then you would know that I am far from being a CCP "apologist", and you would know too that I do not hold up China as a great shining example of democracy. My argument is that there are requisites for democracy, and that according to all known research carried out to date, China is not yet ready for parliamentary democracy.

In regards to village level elections, I dispute your assertion that they are examples of mere window dressing. There are certainly problems, I know, but they represent more than just window-dressing according to those researchers who, unlike you, have actually studied and witnessed many elections first-hand. I think it is a little arrogant to dismiss them out-of-hand.

Finally, if you read my article carefully, you will see that, like Dan, I too do not call for the West to remain silent on human rights abuses. I simply point out that the Chinese generally conceive of human rights differently from us Westerners, and that when judged on a marco level, China's human rights record is quite impressive. When it comes to enforcing the human rights of individuals, there are certainly widespread serious abuses, but it is also my contention that the extent of such abuses are often exaggerated - and once again, I point to empirical research to support this position.

Raj, be fair on me. Read my article carefully. It's not an apologia of any kind for the CCP, but instead, an attempt at developing a balanced argument, supported empirically by various research, all of which you can easily access online. I do not provide detailed footnotes, but I do refer to the names of all of the studies and authors I use, so you can easily google them for yourself if you want to read them in full.

I began my piece by offering up a criticism of the Enlightnment, via a reading of Adorno, since most criticisms of China's present day governance and society reflects the values embodied by the Enlightenment. Raj, I can see from having read many of your contributions to the Peking Duck, that you hold many of these values dear to your heart. I respect you and admire you for that. I hold these same values in very high regard too, as I also pointed out in my article. My argument though, is that Enlightened Reason and it's institutions are not universally applicable, despite what you and many others might like to think. As I said, there are requisites for institutions such as democracy, the rule of law, etc. I would thus very much like to echo what Dan just finished saying in his previous comment below, by calling for patience, for I think that the CCP, for all of its undeniable faults, is generally steering the country in the right direction.

Mr. Jones --

I agree with you on the unfairness of dismissing the village elections out of hand. They are a start and there has to be a start. I find it funny that Mr. Jones and I tend to agree so much on these issues when we approach them from such a different perspective. Yet, what I think we have in common is a willingness to put China, its history and its progress, in perspective. Could China be doing better? Most emphatically yes. Of course. But the better and more difficult questions are what exactly should it be doing and when.

Dan - it is indeed interesting how we both have reached very similar views (on some areas at least) despite the fact that we approach China from very different angles. I think the reason for this reflects not only a willingness on our part to view China historically, as you say, but also I think it reflects an ability on our part to empathise with the Other. The two go hand in hand, and are both necessary if one is to avoid drawing conclusions that are fundamentally ethnocentric.

And yes, China could be doing better in some areas. The exact same thing can be said about literally every country on earth though, right?

The first reason that Raj offers up to support his assertion that village elections represent mere window dressing should be sufficient in itself to prompt readers to question his knowledge on the subject of China's village elections, and therefore his authority to dismiss my arguments as "nonsense". He claims that there has been no "movement" or progress in the development of China's village election system since it was first introduced. Nonsense! A quick search on the internet will prove otherwise! The village level election system has undergone numerous improvements and reforms since it was first introduced, and according to every single study paper conducted by Western researchers these changes constitute real developments and improvements in democracy. But Raj would have us believe that world-recognised and acknowledged experts like Dr Anne Thurston and Dr Jean Oi are all lesser authorities on this subject than is he, and that their assessments are rose-tinted apologies.

Raj also claims that China is ready for parliamentary democracy, but offers no evidence to support his specific argument - no evidence of a quanitative or qualitative nature. As I mentioned in my piece, only one scientifically valid study has so far been carried out to determine whether or not the Chinese are ready or not for the introduction of multi-party national elections, and the findings suggest the answer is no. Not yet. And no, the researcher was not a Chinese mainlander, but a Taiwanese scholar, and yes, his research has been widely accepted by the international community as scientifically valid. My assessment draws heavily on the findings and analyses of such studies, and is based on them, and so if we listen to Raj then we have to conclude that all of these researchers are full of "nonsense". I don't claim to be an expert or an authority on matters pertaining to China, which is why I draw upon the findings of researcher who are acknowledged authorities in order to help me to formulate my own arguments and opinions.

So Raj, where is your evidence, which must be of a quantitative nature if it's going to hold any real weight, to support your claim that China today has all of the necessary requisites to enable a multi-party democracy to take hold and to succeed? If you can provide such evidence, then I will be forced to revise my current position.