I wouldn't normally do two book reviews back-to-back without a political article in between them, but to be brutally honest I'm on vacation (preparing to go back to China for what appears to be an abbreviated trip consisting of little more than packing everything I can't afford to leave behind, and departing the country permanently this time) and would rather post what can be typed from the beach on my tablet than spend my badly-needed free days hunched over a laptop researching. Ergo, I present to you an actually frank, quasi-honest exposition of how China's government functions (or fails to): Yan Jirong's China's Governance. Given my suspicions that China's legal system will soon become a topic of interest to a lot of Americans, especially those of us who didn't read the writing on the wall a year ago and vacate this hellhole of a country, cough, cough it seems that this book warrants a review. And with this review, I will attempt to shine some light on China's alleged "Rule of Law."
First and foremost, despite the similarity in title, this book is not in any way related to Xi Jinping's The Governance of China. This one is part of the same series as Jin Canrong's fap-fest of Han Jingoism entitled China's Wisdom, and Yang Mifen's collection of "China saves the world" propaganda, Opinion of China. The most hilarious aspect of the entire series is that it's one of China's top academic institutions that publishes them, which, given their content, is probably the most damning indictment against China's university system that can be printed. However, unlike the rest of the series, Governance actually has a use other than getting a glimpse into the parallel-universe version of history and geopolitics the Chinese government expects readers to believe.
The book begins with a surprisingly insightful view of the history of modern China, citing both the inspiration drawn from the 1917 Russian Revolution and as the fears of following the USSR's footsteps toward collapse within the first two paragraphs (p. 1). More surprisingly, the author mostly avoids the tendency of most Chinese political authors to open with a blizzard of "dee grett ond on-stapa-bo Chah-nah" nonsense. Though the author does speak rather frankly (and vaguely) of China's economic rise in recent decades, he wastes no time before following it up with admissions of deep structural problems.
"China is also facing many problems such as uneven regional development, huge gap between urban and rural areas, widening income gap, extreme high cost of resources and pollution caused by economic development, severe corruption, safety accidents now and then and frequent social protest events organized by the masses. The existence of these real problems shows that there is still a long way to go in institutionalization, rule of law, democratization, marketization and socialization of national life."
(p. 2)
Notwithstanding the absolutely surreal declaration that China is in some way pursuing democracy (which the Chinese government swears they are doing, by the way), the rest of this paragraph is notable for its down-to-earth humility and rare honesty. As I stated in my review of Xi's book, any admission of weakness on the part of the Chinese is rare enough to warrant attention, and for those admissions to be delivered in calm and sober language and given as much page-space as talk of China's achievements makes this book enough of an anomaly to be taken seriously.
In section I of its preface (yes, the preface is long enough to be divided into sections and subsections in its own right) he book gives a brief overview of how the primary governmental structure of China has changed over the centuries, making mention of the Zhou Dynasty's feudal structure (p. 5 & 6), quickly glosses over the Qin Dynasty's consolidation of power into the hands of the small, elite "Mandarinate (p.6)," dwells for nearly a page on the Tang Dynasty's "three departments and six ministries" structure (p. 6), and this leads to the rather cogent point that there are different effective modes of governance for different sized countries and one size most assuredly does not fit all (p. 7).
Unfortunately, section II of the preface goes back to the tried and true Chinese political literature approach of eye-rolling repeated slogans and emotional appeal rather than those pesky little "fact" things, insisting that the People are "masters of the country" in those exact words (p. 14), a slogan repeated so often other Chinese political works like in Pan Guoping's China's Laws that I suspect it must have been one of the slogans Mao required people to repeat while they labored and toiled in state-owned communes. This assertion is followed by an unquestioning affirmation that China is governed by "Rule of Law" rather than "Rule of Man (p. 14), which should draw many a hearty belly laugh from anyone who has ever shared my misfortune in dealing with China's legal system. Of course, the author seems aware that this claim invites rebuttal, which explains his eagerness to explain himself on the very next page, and it is here where the author shows that he (and, by implied continuation, the Chinese government) is blissfully unaware of precisely what Rule of Law actually is, though the apparent gap between the Party's definition of what "Rule of Law" entails, and the one understood by the rest of the world, forms the backbone of an entire portion of the book.
I Don't Think "Rule of Law" Means What You Think it Means
Tom Bingham, a former Lord Chief Justice of England, cites a definition of "Rule of Law" provided by Professor A. V. Dicey in 1885.
"We mean, in the first place, that no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land... We mean in the second place when we speak of 'the rule of law' as a characteristic of our country, not only that with us no man is above the law, but (which is a different thing) that here, every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals."
(Bingham, The Rule of Law, 4 & 5)
As this definition came from a professor of law, in the country whence the phrase and concept "Rule of Law" originated, at the time of its origin, and is adhered to and quoted by a national judge in the same country in the present day, I propose that it is a more than acceptable definition to use.
The question, then, would seem to be "does China possess these qualities, as Yan Jirong claims that they do?"
The answer, according to evidence provided by Yan Jirong in his own book, is "no, and they do not aspire to." Below is an excerpt from Yan's description of China's "unwritten constitution."
"Today, we need to update the concept of "constitution". Constitution not only includes the articles in the text named Constitution, but also includes the rules which have effective functions in the national political and social life. In other words, here is "unwritten constitution" which plays the practical role outside the written constitution."
( Yan, p. 70)
What you have here is an open admission that the written Constitution for the People's Republic of China is augmented and indeed superseded by a nebulously defined system of "unwritten rules." Ergo, China's system, by its own admission, fails to meet the first of Dicey's criteria, namely that no one can be punished under law except for violations of specifically enumerated laws, formed by specific processes understood by the People, in legislative assemblies specifically set aside for the purpose of making laws, and unless they have been found guilty of those crimes in a court. After all, if violations of these "unwritten rules" are punishable by law, then anyone at any time can be handed any punishment the court sees fit, under the pretense of having violated this or that rule, and if the convicted claims this "rule" does not exist then the court can simply say "it does, but you are too uncultured to have known about it; ignorance of the law is no excuse."
The second of Dicey's points is divided into two sub-points, namey, that no one is above the law and that the same law is applied evenly to everyone. Again, Yan Jirong rather flatly shows us that neither of these is the case in China.
"The core task of the theory of "unwritten constitution is to include the governing practice of the CPC into our constitutional ideals. The preamble of the Constitution confirms the dominant position of the CPC in the national life... The "Constitution" not only includes the text of the Constitution but also contains the constitution of The Communist Party of China."
(Yan, p. 71)
"The socialist system of rule of law includes two parts of regulations and laws within the Party and national laws.
(Yan, p. 72)
Here are two open admissions that China has two sets of laws: one for the Party and one for everyone else. And then...
"Some scholars pointed in the way of political philosophy that the constitution itself is only the result of constitutional formulation and the constitutional articles themselves can not restrain the CPC."
(p. 73)
That's rather cut and dry. The law "can not restrain the CPC." Ergo, the Party (and its members) are above the law(1). The second point in this criterion, that everyone is subject to the same laws, has already been answered in the negative by China's "parallel law system" of Party Regulations on one track and laws on the other, though Yan gives another, even more blatant declaration that the opposite is true.
"The laws are equally applicable to all persons within their scope ad validity and the national laws need to be effective for 1.3 billion people. However, not all laws can equally meet the specific requirements of more than 1.3 billion people."
(Yan, p. 78).
Now, in a federal system, this would be a justification for local governments having specific laws related to the specific needs of their region or state. The problem with that is that China hasn't been a federation since the Qin Dynasty (221 B.C. - 207 B.C.). Ergo, you have a casual admission that "all citizens are equal in the eyes of the law, but some are more equal than others." Of course, all of this would still be at least semi-compatible if the courts could be relied on to administer the laws equally (or even quasi-equally), but Yan provides us with proof that this is not the case either.
"The so-called "judiciary independence" means that the court can make any judgment it wishes within the scope stipulated by the law in trial of cases regardless of any consequence caused by the judgment... Chinese judges have to consider the law and the social effect of judgment in the trial of cases."
(Yan, p. 78)
...And...
"Chinese judges are not just ordinary judicial officers, but are also means for the Party to be responsible for the people."
(Yan, p. 79)
"For the CPC, judiciary is one of the means of social governance."
(Yan, p. 80)
"Law-based governance is the basic strategy for the CPC to lead the people to promote various causes of society. In the scope of law-based governance, the Party's leadership can be conducive to regulate the Party's governing power and policy, enhance its scientific nature and efficiency of governance, and effectively protect the developmental achievements fulfilled by the people under the leadership of the CPC."
(Yan, p. 15)
Essentially, what you just read is a Chinese professor, on the Party payroll, saying "In China, the laws are fair because the Party passes laws to protect what the Party has done for the Party, and that's the way the People need it to be."
So, to recap, Party members are judged according to different laws than everyone else, by courts answerable to the Party, presided over by judges who will face punishment if following the law causes them to have a "bad social impact (read: 'cause the Party to look bad')," in a system where much of the so-called "law" is undefined and unwritten practice, and even after all that, it is assumed that the law is inadequate for the needs of all those governed by it, which brings the implication that exceptions can (and indeed must) be a common occurrence, so long as the law's stated purpose (upholding the supremacy of the Party for whose sole good the law is written, and who cannot be constrained by the law) has been met.
That's not what I would call "Rule of Law." It sounds more like "Rule of the Party Over the Law."
The Same Goes for "Democracy."
Here again, Yan Jirong sets out to prove China is democratic and in doing so provides evidence to the contrary. I will say from the start that Americans have a deep-rooted conviction that not only is democracy superior to other forms of governance, but that some level of democracy or another is necessary in some degree even in governments that are not strictly democratic if the people are to be happy. I'm also aware that this assumption can be (and has been) challenged on multiple fronts, not the least of them being the allegation that it is what I would call "ideocentrism," and I'm forced to concede there is some legitimacy to these challenges. Ergo, I won't play the "Team 'Murica" card here and say "China is bad because they're not democratic." What I am going to say is "China is hypocritical because they claim to be democratic and are most assuredly not." Observe.
"For a country, democracy 'is not about existence, but is about the degree of its implementation.'"
(Yan, p. 101 & 102)
This statement, if taken by itself, is actually quite true. Rare indeed is a country that is fully democratic. Even the United States, the bastion of democratic ideology of the modern world, was never anything close to a pure democracy, nor is it conceivable that any fully democratic government larger than a small township could conceivably function. In the purest sense of the word, "democracy" means the people govern themselves. In a modern sense, this would mean that instead of having a congress or parliament, all citizens of a country would vote on every single act of governance by referendum, and it does not take a lot of imagination to see how the impossibility of this on a national scale. Ergo, Yan comes to another cogent and sensible point.
"Firstly, representative democracy is the basic principle and the only feasible way for modern nation-states to implement democratic politics."
(Yan, p. 99)
Again, this makes sense. Since the citizens can't quibble over every little act of government and still have time for actual life, they choose people to do the quibbling on their behalf. This is what's known as a democratic republic. The structure of government is a republic (representatives stand in for the body of people from which they hail), and the process by which these representatives are selected is by democratic election. In that sense, surely the "People's Republic" can claim it is as democratic as any other nation, right?
Well, in China, only local officials are elected by the People and all levels of government above that are elected by Party committees (2) so there is that, but one needn't go out and buy another book to cross-reference Yan's work when Yan does a splendid job of disproving himself.
"The intention of democracy is not 'election' by the citizens, but the autonomous management by the citizens, that is, autonomy."
(Yan, 100)
Essentially, Yan's argument is that a government is democratic if it follows the principle of "people's government," whether or not the people have any direct influence in it or not. So long as the people have "a sense of participation (Yan, 100)," that's enough, in Yan's eyes, to be called democratic. Ergo, to fulfill Yan's definition, it would be enough for the government to occasionally hold meetings to listen to public opinion, and then go back to their legislative halls and completely ignore it as long as the public had a sense of participation; a sense that they were "masters of the country."
Well, Yan tells rather plainly that China's government doesn't even do that. To the contrary, he is proud to show, in great detail, how China is so democratic that the people don't even have to form their own opinions. The government is benevolent enough to form their opinions for them.
" 'Public opinion' must be formed through a specific organization procedure and expressed through a specific organization mechanism."
(Yan, 100)
"By dominating the agenda setting of National People's Congress, the will of the CPC will turn into the national will... and finally tun the major decision of the Party on the plan for the future five years into the national will."
(Yan, 74)
There is no ambiguity here. The government always knows it is acting in accordance with the people's wishes because it tells the people what their wishes are. Frankly, I'd have more respect for a dictatorship that admits they are a dictatorship than one which performs this many semantic gymnastics to try and find some angle by which they can be called "democratic."
So Is It Worth Reading?
Is a book that undercuts its own thesis this many times really worth reading?
Yes.
A thousand times over, most definitely, yes, and that brings me to the only reason why I feel justified using the #informationwar tag for this article. This book, despite its repeatedly self-contradictory nature and despite its origins as a work of Chinese propaganda itself, is absolutely the clearest portrayal of the inner workings of Chinese political thought that I have ever seen (albeit not for the reasons or in the manner the author had in mind). To read this book (provided one is good at reading between the proverbial lines) is to exponentially multiply one's understanding of just how China's political world operates. Given that China is engaged in an absolutely staggeringly vast "charm offensive" designed to alter public opinion of their country in ways favorable to their government, it is absolutely necessary for the citizens of any country, especially one that is near China, to understand the reality of China, and be able to recognize false, sinophiliac propaganda for what it is. Whether you have a policy of confronting and engaging Chinese propagandists on social media and destroying their arguments (as I do), or simply want to make sure you yourself do not labor under a lie (as most people do when it comes to China, whether it is the myth of their invincibility or the myth of their benign generosity), if you live in a country where you elect leaders and those leaders have to deal with China, you should read this book.
And frankly, so should the leaders you vote for.
(1) In addition to this subtle proof that the Party is above the law, Yin Zhongqing states even more plainly that "no deputy to a people's congress may be arrested or placed on criminal trial without the consent of the people's congress (Yin, 44)."
(2) Yin, 37
Works Cited
Bingham, Tom. The Rule of Law. London. 2010, Penguin Books
ISBN 978-0-141-03453-9
Yin Zhongqing. Trans. Wang Pingxing. China's Political System. Beijing. 2011, China Intercontinental Press
ISBN 978-7-5085-1300-3