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Reputation as Social Control in Present China: Use, Misuse, Abuse, and Bankruptcy

Published online by Cambridge University Press:  21 January 2016

Bo ZHAO
Bo ZHAO*
Affiliation:
University of Groningen, the [email protected]
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Abstract

Although reputation in general plays an effective role in social control in human communal life, this does not seem to work well in present-day China. This article discusses why “reputation as social control” malfunctions in Chinese society in view of the widespread reputation bankruptcy in various professions. Starting with China’s discredited milk industry, it analyses similar regulatory failures in the economic, judicial, academic, and political sectors, explaining the interplay between key institutions. It argues that such regulatory failures can largely be attributed to the use, misuse, and abuse of reputation as a means of social control by the Chinese Party State to maintain monopoly power in a much diversified society resulting from China’s rapid economic development and globalization. Based on the analysis of the Chinese circumstances, this article is also meant to contribute to the study of reputation as social control in general.

Type
Articles
Information
Asian Journal of Comparative Law , Volume 10 , Issue 2 , December 2015 , pp. 359 - 379
Copyright
© National University of Singapore, 2016 

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Footnotes

*

LL.M., Ph.D. (Faculty of Law, University of Groningen, the Netherlands); M.A. (Law) (Southwest University of Political Science and Law, China); B.A. (English Literature) (Henan Normal University, China). Research Fellow, European and Economic Law Department, Faculty of Law, University of Groningen. The author would like to thank the Centre for Asian Legal Studies (CALS) at the National University of Singapore for the invitation to present a first draft of this paper at the Young Scholars Workshop of Asian Legal Studies: New Issues and New Scholarship in December 2013, as well as Professor Pauline Westerman from the Faculty of Law, University of Groningen, for her valuable comments on the same. Most importantly, this research would not be possible without the financial support of the research project “Legal Cases on Posthumous Privacy and Reputation (1980-2010)” organized by the Netherlands Organisation for Scientific Research (NWO).

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2. To enforce “civility rules”, in Post’s term. See POST, Robert C., “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 710CrossRefGoogle Scholar.

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13. Although it has been addressed by reputation studies generally as well as by economics, so far reputation as social control (or governance) has not been treated by scholars in a systematic and multi-disciplinary manner.

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26. For instance, the Dutch government’s Cito test, a national evaluation of all primary schools across the country, has an important impact on Dutch parents’ school choice decisions.

27. For instance, denial of the Holocaust is a crime in many European countries, which is seen as the collective defamation of the Jewish society. See e.g. LECHTHOLTZ-ZEY, Jacqueline, “The Laws Banning Holocaust Denial” (2012) 9 GPN BulletinGoogle Scholar, online: Genocide Prevention Now <http://www.genocidepreventionnow.org/Home/GPNISSUES/GPNBulletinLAWSAGAINSTDENIALSpecialSection9/tabid/164/ctl/DisplayArticle/mid/971/aid/470/Default.aspx>.

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30. Many countries, including the Netherlands, have had to limit the maximum purchase of baby milk power per customer so that there will be sufficient supply for local customers. WONG, Edward, “Chinese Search for Infant Formula Goes Global” The New York Times (25 July 2013)Google Scholar, online: New York Times <http://www.nytimes.com/2013/07/26/world/asia/chinas-search-for-infant-formula-goes-global.html>.

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33. Such enterprises are excluded from the law enforcement of China’s anti-monopoly law. See HUANG, Yonget al., “China’s 2007 Anti-Monopoly Law: Competition and the Chinese Petroleum Industry” (2010) 31 Energy Law Journal 337Google Scholar.

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40. See Yardley and Barboza, supra note 35.

41. JACOBS, Andrew, “China Sentences Zhao Lianhai, Activist in Milk Scandal” The New York Times (10 November 2010)Google Scholar, online: New York Times <http://www.nytimes.com/2010/11/11/world/asia/11beijing.html>.

42. This is particularly true in the context of China’s transformation into a decentralized predatory state. Pei, supra note 4 at 132–166.

43. Even when they are available, they are still not accessible to the majority of Chinese patients. See e.g. LIU, Yongjunet al., “Development of foreign Invested Hospitals in China: Obstacles and Coping Strategies” (2013) 2:3Journal of Hospital Administration 142CrossRefGoogle Scholar, online: <http://www.sciedu.ca/journal/index.php/jha/article/view/2567>.

44. See Cong’s analysis of high social status of doctors in China. CONG, Yali, “Doctor-Family-Patient Relationship: The Chinese Paradigm of Informed Consent” (2004) 29:2Journal of Medicine and Philosophy 149 at 161CrossRefGoogle ScholarPubMed.

45. MINTER, Adam, “Violent Crimes in China’s Hospitals Spread Happiness” BloombergView (29 March 2012)Google Scholar, online: BloombergView <http://www.bloombergview.com/articles/2012-03-29/violent-crimes-in-china-s-hospitals-spread-happiness>; TAKADA, Kazunori, “Bribery Serves as Life-Support for Chinese Hospitals” Reuters (23 July 2013)Google Scholar, online: Reuters <http://www.reuters.com/article/2013/07/23/us-china-hospitals-bribery-idUSBRE96M12Y20130723>

46. BURKITT, Laurie, “China Fears Rise in Doctor Attacks” The Wall Street Journal (22 October 2012)Google Scholar, online: The Wall Street Journal <http://online.wsj.com/news/articles/SB10000872396390444592704578066364234583312>.

47. Besides bribe and gift taking, sexual molestation has ruined many teachers’ dignity. See i.e. “Eight Student Molestation Cases in China Reported in 20 Days” EChinacities (21 June 2013), online: EChinacities <http://www.echinacities.com/china-media/8-Student-Molestation-Cases-in-Schools-China-Reported-in-20-Days>.

48. Even Western scholars have been criticized for their relationship to the Party. HOLZ, Carsten A., “Have China Scholars All Been Bought?” Far Eastern Economic Review (April 2007)Google Scholar, online: China Digital Times <http://chinadigitaltimes.net/2007/04/have-china-scholars-all-been-bought-carsten-a-holz/>.

49. For instance, a sexist comment from a top forensic expert on a recent rape case in Beijing that severely agitated the public. “Professor Apologizes for Comments on Rape Case” China Real Time (17 July 2013), online: The Wall Street Journal <http://blogs.wsj.com/chinarealtime/2013/07/17/professor-apologizes-for-comments-on-rape-case/>.

50. See a discussion of such problems within Chinese academia by Xinglong Cao. CAO, Xinglong, “China’s Lax Law Harbors Academic Misconduct” (2010) China Law and PolicyGoogle Scholar, online: China Law and Policy <http://chinalawandpolicy.com/2010/03/04/academic-misconduct-in-china-whats-law-got-to-do-got-to-do-with-it/>.

51. “In fact, it has almost be expected that as long as you are a government official, you are automatically corrupt.” Zarathustra, “In China, Among 100 Government Officials, 101 of Them Are Corrupt” Also Sprach Analyst (17 April 2012), online: Also Sprach Analyst <http://www.alsosprachanalyst.com/economy/china-corrupt-government-officials-bo-xilai-scandal.html>.

52. For instance, a local police chief was promoted soon after a court ruling disclosed the fact that he had bribed a superior leader. See KUHN, Anthony, “New Chinese Law Cracks Down On ‘Rumor Mongers’” National Public Radio (26 September 2013)Google Scholar, online: NPR <http://www.npr.org/blogs/parallels/2013/09/25/226181016/new-chinese-law-no-rumormongering>.

53. A good illustration is the recent political trial of Chongqing Governor Bo Xilai. WONG, Edward, “Ex-Police Chief in China Scandal Aided Prosecutors” The New York Times (18 September 2012)Google Scholar, online: The New York Times <http://www.nytimes.com/2012/09/19/world/asia/former-police-chief-wang-lijun-in-bo-xilai-scandal-aided-prosecutors.html>.

54. For the best analysis of the traditional social status of Chinese officials, see WANG, Yanan, Zhongguo Guanliao Zhengzhi Yanjiu (中国官僚政治研究) [The Politics of Chinese Bureaucracy] (Beijing: Shangwu Publishing House, 2011)Google Scholar.

55. See CHIN, Yik Chan and LIU, Yanbin, “Truth, Fair Comments, Immunity and Public Opinion Supervision: Defenses of Freedom of Expression in Chinese Right to Reputation Lawsuits” (27 February 2013)Google Scholar SSRN Scholarly Paper at 11, 17, 38 and 66, online: SSRN <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2225735>.

56. LIEBMAN, Benjamin L., “Innovation Through Intimidation: An Empirical Account of Defamation Litigation in China” (2006) 47:1Harvard International Law Journal 33Google Scholar; YAN, Meining, “Criminal Defamation in the New Media Environment – The Case of the People’s Republic of China” (2011) 14 International Journal of Communications Law and Policy 1Google Scholar.

57. BANDURSKI, David, “Hunan Petitioner Jailed for ‘Defamation’” China Media Project (26 April 2012)Google Scholar, online: China Media Project <http://cmp.hku.hk/2012/04/26/21887/>.

58. A telling example is the problematic execution of suspect Niu Shubin in 1994 which made the High People’s Court of Hebei the centre of a national scandal after it refused a retrial, even when the real killer confessed his killing of the victim. For Niu’s case and other similar controversial death penalty cases, see TREVASKES, Susan, The Death Penalty in Contemporary China (New York: Palgrave Macmillan, 2012) at 52CrossRefGoogle Scholar.

59. For instance, the recent dismissal of Shanghai judges and court officials after video clips of them performing sex acts with a prostitute was uploaded online and watched by millions of Chinese. PERLEZ, Jane, “Chinese Judges Disciplined in Prostitution Scandal After Videos Circulate Online” The New York Times (7 August 2013)Google Scholar, online: The New York Times <http://www.nytimes.com/2013/08/08/world/asia/chinese-judges-disciplined-for-cavorting-with-prostitutes.html>.

60. See e.g. JACOBS, Andrew, “Bank Guard Kills 3 at Chinese Courthouse” The New York Times (1 June 2010)Google Scholar, online: The New York Times <http://www.nytimes.com/2010/06/02/world/asia/02china.html>.

61. Even the former Vice President of the People’s Supreme Court of China, Huang Songyou, was found guilty for misconduct, corruption, and taking bribes. WANG, Yuhua, “Court Funding and Judicial Corruption in China” (2013) 69 The China Journal 43 at 45CrossRefGoogle Scholar. For a description of institutional corruption in Chinese judicial system, see LING, Li, “The “Production” of Corruption in China’s Courts: The Politics of Judicial Decision-Making and its Consequences in a One-Party State” (2011) USALI Working Paper SeriesGoogle Scholar, online: US Asia Law Institute <http://www.usasialaw.org/wp-content/uploads/2011/07/The-production-of-corruption-in-Chinas-courts.pdf>.

62. See GOETZ, Darcey J., “China’s Environmental Problems: Is a Specialized Court the Solution” (2009) 18 The Pacific Rim Law and Policy Journal 155Google Scholar.

63. Chinese judges often have second thoughts when delivering suitable judgments when private litigants accuse state-owned oil firms of pollution. See e.g. XIA, Jun, “Losses at Sea” Chinadialogue (28 July 2011)Google Scholar, online: Chinadialogue <https://www.chinadialogue.net/article/show/single/en/4433>.

64. Goetz, supra note 62 at 163.

65. The Chinese Communist Party maintains control over judicial institutions, whose unchecked power has led to institutionalized judicial corruption. See Ling, supra note 61.

66. MOORE, Malcolm, “Leading Chinese Forensic Scientist Quits Just Days Ahead of Bo Xilai” The Daily Telegraph (18 August 2013)Google Scholar, online: The Daily Telegraph <http://www.telegraph.co.uk/news/worldnews/asia/china/10250453/Leading-Chinese-forensic-scientist-quits-just-days-ahead-of-Bo-Xilai.html> [Moore, “Leading Scientist Quits”].

67. LONGANECKER, Mindy Kristin, “No Room for Dissent: China’s Laws Against Disturbing Social Order Undermine Its Commitments to Free Speech and Hamper the Rule of Law” (2009) 18:2Pacific Rim Law and Policy Journal 373Google Scholar.

68. These measures have included cracking down on influential public opinion leaders on micro-blogs and other social media. BUCKLEY, Chris, “Crackdown on Bloggers Is Mounted by China” The New York Times (10 September 2013)Google Scholar, online: The New York Times <http://www.nytimes.com/2013/09/11/world/asia/china-cracks-down-on-online-opinion-makers.html>.

69. “China Appoints ‘Moral Models’ to Improve Citizens’ Moral Standards” People’s Daily Online (19 September 2007), online: People’s Daily Online <http://english.people.com.cn/90001/90776/6266474.html>.

70. Pei argued that China’s predatory state exists not only at the local level, but also at the central level, and that the unchecked state predation is dire. Pei, supra note 5 at 36–39. A stunning example is the in The New York Times that revealing the surprising family fortune of previous Prime Minister Wen Jiabao, who declared himself a clean political leader. BARBOZA, David, “Family of Wen Jiabao Holds a Hidden Fortune in China” The New York Times (25 October 2012)Google Scholar, online: The New York Times <http://www.nytimes.com/2012/10/26/business/global/family-of-wen-jiabao-holds-a-hidden-fortune-in-china.html>.

71. CLIPPINGER, John Henry, “An Inquiry into Effective Reputation and Rating System” in Hassan MASUM, Mark TOVEY, and Craig NEWMARK, eds., The Reputation Society: How Online Opinions are Reshaping the Offline World (Cambridge, Mass.: MIT Press, 2011), 25Google Scholar.

72. A local museum was even built to exhibit Liu’s past cruelty and evil deeds. CHEN, Liang, “Fight to Clear Landlords’ Reputation” Global Times (2 September 2013)Google Scholar, online: Global Times <http://www.globaltimes.cn/content/808079.shtml#.Uk62-fIw-2g>.

73. Chen Mingliang Yu Beijing Qingnian Baoshe Wu Shi Mingyuquan An, Yi Zhong Min Zhong Zi Di 8549 Hao 2003 (陈明亮与北京青年报社、吴思名誉权纠纷案, 一中民终字第8549号 2003) [Chen Mingliang v. Wu Si and Beijing Youth Newspaper, Beijing No. 1 Interim Court No. 8549, 2003], online: Qinquan <http://www.qinquan.info/138v9.html>.

74. “Questioning of Lei Feng’s Frugality Leads to Detention” The Wall Street Journal China (21 August 2013), online: The Wall Street Journal China <http://blogs.wsj.com/chinarealtime/2013/08/21/four-detained-for-questioning-lei-fengs-frugality/>.

75. As the founder of the communist China, to question Mao’s reputation would be to undermine the Party’s legitimacy in China. See MacMillan, supra note 21 at 69.

76. For instance, Lin Zhao has recently been commemorated and regarded as a “goddess of liberty” or a “saint” by many Chinese. XU, Yang and JING, Jing, “Restoring Sanity to Lin’s Story” Global Times (9 May 2012)Google Scholar, online: Global Times <http://www.globaltimes.cn/NEWS/tabid/99/ID/708652/PageID/630966/Restoring-sanity-to-Lins-story.aspx>.

77. CHAO, Guoxing, “Shanghai Guanfang Didiao Xuanbu Ba Zaiyangjia’an Zhong Yuhaide Liumingjingyuan Pingwei Lieshi (上海官方低调宣布把在杨佳袭警案中遇害的六名警员评为‘烈士’)[Shanghai Authority Lowered Tune in Awarding the Dead Police Officers ‘Martyrs’ Killed by Yang Jia]” RFI (4 February 2009)Google Scholar, online: The France Médias Monde <http://www1.rfi.fr/actucn/articles/110/article_11909.asp>.

78. PILS, Eva, “Yang Jia and China’s Unpopular Criminal Justice System” Human Rights in China (1 April 2009)Google Scholar, online: Human Rights in China <http://www.hrichina.org/content/3702>.

79. XU, Nan and ZHU, Hongjun, “Bei Yulun Hulue de Yunan Jingcha (被舆论忽略的遇难警察) [The Police Victims Forgotten by Chinese Media]” Nanfang Zhoumo (南方周末) [Southern Weekend] (17 July 2008)Google Scholar, online: The Nanfang Group <http://www.infzm.com/content/14733>.

80. JACOBS, Andrew, “Her Husband’s Execution, Then a Bag of Ashes” The New York Times (27 September 2013)Google Scholar, online: The New York Times <http://www.nytimes.com/2013/09/28/world/asia/her-husbands-execution-then-a-bag-of-ashes.html>.

81. See ibid. The assumption was confirmed by a recent speech by Zhou Qiang, the Chief Justice of People’s Supreme Court of China. CAO, Yin, “Decisions Are Courts’ Responsibility: Top Judge” China Daily USA (12 March 2014)Google Scholar, online: Chian Daily USA <http://usa.chinadaily.com.cn/china/2014-03/12/content_17341322.htm>.

82. JACOBS, Andrew, “Street Vendor’s Execution Stokes Anger in China” The New York Times (25 September 2013)Google Scholar, online: New York Times <http://www.nytimes.com/2013/09/26/world/asia/street-vendors-execution-stirs-anger-in-china.html>.

83. FLOCK, Elizabeth, “Yueyue, Chinese Toddler Run over in Hit-and-Run, Believed to Be Stable” The Washington Post: Blogs (21 October 2011)Google Scholar, online: The Washington Post <http://www.washingtonpost.com/blogs/blogpost/post/yue-yue-chinese-toddler-run-over-in-hit-and-run-believed-to-be-stable/2011/10/18/gIQAb83kuL_blog.html>.

84. MINTER, Adam, “China’s Infamous ‘Good Samaritan’ Case Gets a New Ending: Adam Minter” Bloomberg (6 October 2013)Google Scholar, online: Bloomberg <http://www.bloomberg.com/news/2012-01-17/china-s-infamous-good-samaritan-case-gets-a-new-ending-adam-minter.html>.

85. Ibid.

86. ZARING, David, “Regulating by Repute” (2011) 110 Michigan Law Review 1003 at 1005Google Scholar.

87. Ibid at 1010.

88. Moore, “Leading Scientist Quits”, supra note 66.

89. For instance, Article 19 argued that reputation of state or nation and other public bodies are not protected by defamation law according to international law standards. See “Defining Defamation: Principles on Freedom of Expression and Protection of Reputation” Article 19 (1 July 2000), online: Article 19 <http://www.article19.org/resources.php/resource/1802/en/defining-defamation:-principles-on-freedom-of-expression-and-protection-of-reputation>.

90. The conventional wisdom in international law is that anticipating a loss of future gains, states will often comply with international rules even when it is not in their immediate interests. See a discussion of both the argument and counter-argument by Brewster. BREWSTER, Rachel, “Unpacking the State’s Reputation” (2009) 50:2Harvard International Law Journal 231Google Scholar.

91. See e.g. ROOT, Hilton, “Corruption in China: Has It Become Systemic?” (1996) 36:8Asian Survey 741 at 741–757CrossRefGoogle Scholar; and WEDERMAN, Andrew, “The Intensification of Corruption in China” (2004) 180 The China Quarterly 895 at 895–921CrossRefGoogle Scholar.

92. “Chinese Business Woman Latest to Be Charged in Rail Way Corruption Scandal” Reuters (9 September 2013), online: Reuters <http://www.reuters.com/article/2013/09/09/us-china-graft-ding-idUSBRE98803I20130909>.

93. As the successor of the former provincial governor Li Changchun, the current Chinese Prime Minister Li Keqiang had a role to play in covering-up this issue. The former was one of the eight members of China’s previous politburo, which is normally neither legally nor politically accountable to anyone. “AIDS in China: Blood Debts” The Economist (18 January 2007), online: The Economist <http://www.economist.com/node/8554778>.

94. Many grassroots officials have even tried to capitalize on local instability for personal gains. LEE, Ching Kwan and ZHANG, Yonghong, “The Power of Instability: Unravelling the Microfoundations of Bargained Authoritarianism in China” (2013) 118 American Journal of Sociology 1475CrossRefGoogle Scholar, especially at 1493.

95. Again, the public health authorities waited three weeks to inform them of the infections in the Shanghai area. MINTER, Adam, “Bird Flu Mystery Recalls Chinese SARS Coverup” Bloomberg (2 April 2013)Google Scholar, online: Bloomberg <http://www.bloomberg.com/news/2013-04-02/bird-flu-mystery-recalls-chinese-sars-coverup.html>.

96. Note also that many Americans regard the extraordinary revelation of Snowden as a major betrayal.

97. For their stories see WATTS, Jonathan, “SARS Hero Detained for ‘Re-education’” The Guardian (6 July 2004)Google Scholar, online: The Guardian <http://www.theguardian.com/world/2004/jul/06/sars.china>. See also “How SARS Contaminated China’s Reputation” The Globe and Mail (20 March 2009), online: The Globe and Mail <http://www.theglobeandmail.com/commentary/how-sars-contaminated-chinas-reputation/article749737/>.

98. “Duke University Student Wang’s Father Says He Doesn’t Need Police Protection” Xinhua (23 August 2008), online: SinaChina <http://english.sina.com/china/1/2008/0423/155905.html>.

99. “China ‘Disgraced’ by Tourist Vandal Who Engraved ‘Ding Jihao Was Here’ Over Hieroglyphics at Egyptian Temple” Daily Mail (27 May 2013), online: Daily Mail <http://www.dailymail.co.uk/news/article-2331613/China-disgraced-tourist-vandal-engraved-Ding-Jihao-hieroglyphics-Egyptian-temple.html>.

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101. While electronic transfer was impossible, many travelled to his residence in Beijing to show support. They even donated by flying paper planes folded from 100 RMB notes over heavily guarded walls. JACOBS, Andrew, “Thousands Chip In to Help Dissident Artist Pay Fine” The New York Times (6 November 2011)Google Scholar, online: The New York times <http://www.nytimes.com/2011/11/07/world/asia/thousands-chip-in-to-help-ai-weiwei-pay-fine.html>.

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110. ZHOU, Liána and ZHANG, Weiying, “Xinyue de Jiazhi: Yi Wangshang Paimai Jiaoyi Weili(信誉的价值：以网上拍卖交易为例) [The Value of Reputation: Evidence from Online Auctions]” (2006) 12 Jingji Yanjiu (经济研究) [Economic Research Journal] at 81–91Google Scholar.

111. In the regard, the relationship between law and reputation as social control should be further discussed, since it seems that reputation becomes more important in providing mutual trust and cooperation when there is no effective legal order. Or vice versa, individuals can cooperate with each even without mutual trust when there is good law in action. On this point, one may draw wits from Cook, Hardin, and Levi’s study of various means for cooperation without trust. See Cook, Hardin, and Levi, supra note 17.