Fu Hualing

Climbing the Weiquan Ladder: A Radicalizing process for rights-protection lawyers

It is commonly acknowledged that weiquan lawyers operate in a narrow space, and lawyers with a radical stance work within a harsh environment. Weiquan lawyers advance and retreat in response to the changing macro-political-legal environment, but there is no sign that they are giving up their legal struggles. A steadily growing number of weiquan lawyers are tending to become more radical in their approach as their experience advances. This article studies the process in which weiquan lawyers start and sustain weiquan lawyering in a harsh environment and the factors that contribute to the radicalizing process. Its principal purpose is to identify and explain a radicalization process in which a lawyer climbs up the ladder of weiquan lawyering, from a moderate lawyer providing legal aid in individual cases to a critical or radical lawyer. An authoritarian state prohibits political participation that poses a direct challenge to the regime. It turns out, however, that such a state may at the same time promote, or at least tolerate, a degree of rule of law.1 This development of legal possibilities under political constraints provides both the necessity and opportunities for political lawyering in which lawyers channel political challenges through a legal process. Where oppositional politics is prohibited or constrained, lawyers and other rights advocates may strive to seek legal remedies for their political claims. There are many inherent political constraints in the operation of China’s authoritarian state. Political participation remains tightly controlled under Chinese Communist Party (CCP) rule and as a result aggrieved citizens can rarely air and solve their problems through this route. The lack of effective venues for conventional political participation, however, is compensated in part by the development of certain legal institutions. In the past three decades, the CCP * The University of Hong Kong. Email: hlfu@hku.hk (corresponding author). † The University of Hong Kong. 1 Tom Ginsburg and Tamir Moustafa, Rule by Law: The Politics of Courts in Authoritarian Regimes (New York: Cambridge Universeity Press, 2008). 40

Re-Education Through Labour in Historical Perspective

Re-education through labour ( laodong jiaoyang or laojiao for short) is an administrative punishment imposed by the police. Since its inception in 1955, it has become a convenient instrument for the government to use to deal with any crisis. Its development has largely followed the ebb and flow of the CCPs political behaviour. Created as a comparatively mild suppression of counterrevolutionary activities, laojiao served as a useful instrument of punishment for dissenting intellectuals in 1958, though it was then nearly phased out during the radical years of the Cultural Revolution. Laojiao expanded quickly as a result of the CCPs anti-crime strategy after 1983, and has grown steadily ever since. It now serves multiple functions, including crime control, drug rehabilitation, investigative detention and political control. It enjoys different degrees of legitimacy and justification. Any substantive discussion on the future of laojiao has to be offence and offender specific.

Stability and Anticorruption Initiatives: Is There a Chinese Model?

China is a high-corruption state. Yet, despite its prevalence and entrenchment, corruption has not undermined China’s economy, social stability and the political legitimacy of the Chinese Communist Party. Corruption inches in, and the Party fights back. Corruption and anti-corruption efforts have reached a stalemate. One conventional explanation of China’s ability to manage the impact of corruption is China’s “authoritarian resilience”. A neglected aspect in the authoritarian thesis is the degree to which China is learning from the international best practice based on the principles of transparency, the rule of law and public participation. In enhancing anti-corruption enforcement, the Party has done more than it is willing to admit in creating institutions that may in the long run pose serious challenges to its rule. This paper argues that anticorruption enforcement in China goes beyond relying on the authoritarian measures, such as extra-legal detention or the use of the death penalty. The fact that the Party can still hold on to its position in the battle against corruption can be better explained by the Party’s ability to learn from overseas experiences and to introduce a series of anticorruption initiatives which are rule-of-law based, transparency-centered and democracy-driven. One of the best examples of China’s extensive borrowing from international best practices is China’s active participation in the United Nations Convention against Corruption (UNCAC) and the faithful implementation of the relevant treaty obligations. Interestingly, while China pushes back any UN-based supervisory mechanism in the broadly defined human rights areas, it has followed in good faith the recommendations of the UNCAC. While a reform initiative may be doomed if it is introduced to improve citizens’ civil and political rights, it becomes possible when introduced to enhance anticorruption enforcement.

Commentary on "Transforming Family Law in Post-Deng China"

Michael Palmers article examines the development of three important aspects in Chinese family law: divorce, adoption and family planning. It is a commendable effort to approach Chinese family law broadly in order to bring family planning policy within its study. There remains a glaring gap in Chinese legal scholarship between the study of family law and the study of population. The disciplines are divided into two camps with little cross-fertilization. Palmers article clearly demonstrates the importance and necessity of including family planning within the study of family law. The article is also a laudable attempt to examine the dynamic interaction between family law and socioeconomic changes. Chinese legal reform largely follows a liberal paradigm. The ultimate goal of the reform is to separate the Chinese Communist Party from the state and to limit the role of the state in economy and the society. Viewed historically, the Chinese state is contracting while the private economy is expanding in size and importance, and civil society is emerging and becoming more autonomous. In a sense, Chinese legal reform is to institutionalize the circumscribed state. Notwithstanding fluctuations, the overall result of reform in the past 30 years has been an increasingly limited and accountable government and a growing importance in market, society and individual autonomy, as evidenced by a number of constitutional amendments entrenching the rule of law and the protection of human rights. In a society where Hayek is replacing Marx as the most influential writer, the state is now viewed with great suspicion, especially in matters relating to family life. If government is regarded as a hurdle on the road to freedom, then its role has to be limited and controlled. Palmer studies the development of Chinese family law in this particular political context. In the area of family life in particular, the reform has been to rid the party state from the bedroom. Family law in Communist China in general and the 2001 Marriage Law amendment in particular are liberal and progressive in enlarging individual autonomy, in protecting gender equality and in creating a realm which is relatively free of government interference. The 2001 Marriage Law amendment, for example, simplifies the procedures for marriage, and places effective limits on judicial discretion in granting or refusing to grant a divorce. The subsequent administrative rules enlarge individual freedom in matters relating to marriage and divorce. There is now much less political and institutional intervention in this particular realm. Increasingly, the law recognizes and treats marriage and divorce as private matters. People recognize and fully exercise these rights, as shown by the surge in the divorce rate in China.

Mediation and the Rule of Law: The Chinese Landscape

This chapter first explores the multi-layered relationship between mediation and the alternative of more rule-based litigation in the emerging legal system in China. It then identifies the core features of mediation as it is practiced in China, followed by a critical examination of state-imposed mediation and its social and political impact. The principal goal of this chapter is to uncover the strong state interest in promoting and implementing mediation in China and to scrutinise the impact of state-imposed mediation on dispute resolution in general and the court system in particular. Without denying the value of mediation in bringing peace in individual cases, this chapter focuses on the political dimension of mediation.

Access to Justice and Constitutionalism in China

A neglected aspect in the study of post-Mao Chinese legal and constitutional reform is the importance and potential of social intermediaries, the legal professions in particular, in developing China’s emerging rights-based constitutional systems. Scholars and commentators have conducted extensive studies on the supply-side of the legal system (see, for example, He Xin’s contribution to this volume), including the expansion of new legal norms and the growth and entrenchment of legal institutions (see, for example, Chen 2004a; Peerenboom 2002), but for the most part few have taken the demand-side of this system seriously. Only recently have researchers started to pay attention to the issues relating to the role of rights consciousness in legal development and the processes through which the legal profession might facilitate such rights consciousness and rights practices (see, for example, Gallagher 2006; Michelson 2008; see generally Diamant, Lubman, and O’Brien 2005).