Institutionalize Shangfang within the Chinese Socialist Rule of Law Framework

Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholar & Professor of Law, Professor of International AffairsPennsylvania State University, USAThe author may be contacted at lcb911@gmail.com

Keren Wang Ph.D. Candidate in Rhetoric and Social Thought, Graduate LecturerPennsylvania State University , USAThe author may be contacted at kuw148@psu.edu

CPE Working Paper Series

COALITION FOR PEACE AND ETHICS

IntroductionThe purpose of this paper…

- to discuss the viability of the shangfang (“petitioning to higher authority”) system within the Chinese historical, political and legal context

- to suggest ways in which shangfang might benefit from further institutionalization under China’s socialist rule of law and its emergent. constitutional framework

The Basic Outline- First, examine the emergent “Chinese socialist rule of law”

- what does socialist rule of law mean?- Its history, theory and practice

- Second, to decide whether there is a place for shangfang within Chinese socialist rule of law- historical context, socio-economic causes, key tensions and challenges

- Lastly, look into possible ways to institutionalize shangfang practices in accordance the socialist rule-of-law framework- administered in accordance to the constitution, separation of venue, inter-

systematic harmonization

Rule of Law – Substantive Functions and Formal Frameworks

Modern formal frameworks: rule of law and Rechtsstaat– Rechte (rights) + staat (state)– Rule of law (Rechtsstaat) the formal framework of constitutional democracy in

Perpetual Peace– system of rules as applied to disputes

Substantive functions:– Aristotle, Politics, Book 4: “So many kinds of democracies there are, and the grew out of

these necessary causes.”– Protection of people’s rights and interests, prevent arbitrary and personal exercise of

power, reproducing stable society, reflect society values and promote social needs…

What does “socialist rule of law” mean?

The socialist understanding of the rule of law, in the most basic and general sense, assumes an interdependent relationship between social progress and legal development -- that law must be developed in accordance with the evolution of society as a whole.- “when cities have far outgrown their original size, and their revenues have

increased, all the citizens have a place in the government… and they all, including the poor who receive pay, and therefore have leisure to exercise their rights, share in the administration.” --Aristotle, Politics, Book 4

Socialist Rule of Law with “Chinese Characteristics”

The core principle for the Chinese socialist rule of law can be summarized as “seek truth from facts ( 實事求是 )”- Derives from CCP’s mass line principle- Deng Xiaoping stressed the importance of continuously developing updated understanding of

social needs from new social facts. - by “seeking truth” it implies the duty of the CCP as the vanguard party, of which it must decide

what or how the party ought to listen to its people, and to scientifically develop those areas that require greater attention in terms of party work.

The Chinese socialist rule of law is also deeply attached to the larger socialist modernization project- To attain the kind of prosperity and human development that provides the precondition for a for

a stable rule of law system- First meeting the basic necessities of the people ( 溫飽 ), then achieve a moderately prosperous

society ( 小康 ), and finally towards the highly-developed “great harmonious society ( 大同 )”.

Chinese Socialist Rule of Law (cont.)By “Socialist Rule of Law with Chinese Characters”, the “socialist” part implies that the rule-of-law system must progress alongside the changing social needs; whereas “Chinese Characters” emphasizes the need to develop legal system within the constraints of the specific social and political reality in which it occurs.

The problem: as the overall standard of living in China improved drastically over the past thirty years, the basic material needs (wenbao/ 溫飽 ) of the Chinese people have been mostly fulfilled, and new demands of rights and protections have emerged from evolved social needs.

Functionalist Approach to the Problem of Shangfang

In terms institutionalizing shangfang in a rapidly developing Chinese society, it is important to deal with the most urgent substantive problems at hand first, even if the method designed to address the problem does not adhere to pre-ordained formal principles.

– As Deng Xiaoping famously suggested, “It doesn't matter whether a cat is white or black, as long as it catches mice.”

– If the reforms do remain true to the fundamental principle of “seeking truth from facts”, one would expect it to be able to evolve in accordance with the needs of the people, and at the time leading the people towards improved human conditions.

The Problem of Renzhi ( 人治 )A well-functioning rule of law society must able to suspend personal discretion and to hold that person accountable by reference to rules and principles. – When rules are perceived nothing more than instruments to serve

personal will, we no longer have fazhi ( 法治 rule of law) but instead renzhi ( 人治 , rule by personal will)

– The concern of renzhi marks one of the core social tensions underlying the widespread practice of shangfang.

– The problem of corruption, especially at the local level, and the lack of judicial independence force petitioners to seek alternative channels to voice their complaints

The Paradox of Judicial Independence in China

One the one hand, the lack of judicial independence in China undermines its rule of law system

On the other hand, implementing American style judicial independence would undermine China’s State-Party socialist constitutional framework

Possible Solution• Provide separate formal venues specifically for shangfang petitions

– Ideally, the venue for shangfang petitions should be separated both horizontally (not sharing the same interest as the subject of the petition) and vertically (at a superior level than the subject of the petition) from the respective local government

– Centrally administered, and centrally appointed officers – “Circuit” shangfang venues

• Harmonize with CCP discipline and criminal investigation process – Addressing the need for both protecting the interests of the petitioner and disciplining

corrupt officials– Distinguish complaints relating to administrative actions (e.g. government land seizure)

and relating to corrupt official behaviors.– Administrative dispute resolution mechanism for the former, and CCP disciplinary process

(shuanggui) for the latter– If shuanggui instigation (handled by the CCDI) also reveals potential criminal liability, the

case would be forwarded to the judicial organ for criminal investigation

Conclusion– institutionalization of shangfang provides an excellent participatory

framework where the people, when been damaged by administrative actions or by corrupt officials, can legally and effectively voice their concerns and protect their interests.

– This process also serves in cultivating a spirit of civil participation among the people, which is vital for a stable rule of law system.

– To institutionalize is to embed the shangfang practice within the socialist system of dispute resolution, party discipline, and criminal prosecution, so that shangfang becomes a component inter-systematic legal framework that both accords with the foundational rule of law principle while sensitive to the unique political and social conditions of China.

Thank you!