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Global “Harmonious Society” and the Law: China's Legal Vision in Perspective

Published online by Cambridge University Press:  06 March 2019

Leïla Choukroune

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“A harmonious society needs a stronger legal system that wields greater authority.”

“He,” the Chinese character for harmony, is now in everyone's mind when thinking about contemporary China. Harmony and other ‘Confucian values’ seem to have penetrated all spheres of Chinese society, from the Communist Party's elite to business leaders and academics. But Confucius is both used and abused: quoting the philosopher at the start of the Olympic Games Opening Ceremony in a kitsch historical extravaganza featuring 3,000 men dressed up as his disciples does not clarify the true political meaning of an increasingly ideologically eclectic regime. On the contrary, it leads, to borrow Claude Lefort's term, to further “complications.” Thus, the interest in the idea of a ‘socialist harmonious society’ stems less from what it holds aloft than from what it hides.

Type
Articles
Information
German Law Journal , Volume 13 , Issue 5: The Ruptures in International Law , May 2012 , pp. 497 - 510
Copyright
Copyright © 2012 by German Law Journal GbR 

References

1 Taken from the resolution adopted at the 6th plenary session of the 16th Central Committee of the Communist Party of China in October 2006. English transliteration: Hexie shehui, shu yao yi ge geng shang da de, geng quan wei de fazhi. Google Scholar

2 In reference to the book of Claude Lefort, Complications, Communism and the Dilemmas of Democracy (2007), and of course, to essays on communism published right after its fall in Eastern Europe by François Furet, The Passing of an Illusion: The idea of Communism in the Twentieth Century (1999), and Martin Malia, The Soviet Tragedy: A History of Socialism in Russia 1917-1991 (1994). Although I feel that Lefort's theories cannot be applied as such to today's China or international law, my reasoning is informed by these comparative references.Google Scholar

3 See Foucault, Michel, Surveiller et punir (1975).Google Scholar

4 The 1999 amendments had ratified this development by inscribing the concept of “socialist rule of law” into the Chinese constitution. Article 5 says: “The People's Republic of China governs the country according to law and makes it a socialist country ruled by law. The state upholds the uniformity and dignity of the socialist legal system.” See Zhonghua Renmin Gongheguo Xianfa (中华人民共和国宪法) [Constitution] Mar. 14, 2004 (China), available at: http://english.gov.cn/2005-08/05/content_20813.htm (last accessed: 24 April 2012).Google Scholar

5 English transcription: shehui zhuyi fazhi guojia. Google Scholar

6 English transcription: shehui zhuyi hexie shehui. Google Scholar

7 For example, The China Law Society has recently organized the XXIV World Congress of philosophy of law and social philosophy on the theme of “Global Harmony and the Rule of Law.” Although many different approaches of law were used to inform the discussions, the Chinese organizers consciously and systematically referred to the concept of ‘harmony’ perceived as a component of a ‘Chinese’ and ‘socialist’ approach of law.Google Scholar

8 Figures for the annual number of incidents seem to be getting harder to find. A report of the Congressional Research Service based on official Chinese sources provides for a 50% increase in “public order disturbances” between 2003 and 2005, with 87,000 incidents for 2005 alone. See Lum, Thomas, Cong. Research Serv., RL3341, Social Unrest in China (2006). As the global economic crisis is now deepening, tens of thousands of protests are erupting from a mixture of economic grievances and political resentment. With ‘only’ 5% growth this year, these mass protests clearly constitute one of the government's principal concerns. See also Symposium, China's Social Insecurity, 1 China Rights Forum 13 (2005). These movements have obviously not stopped over the last two years. On local order and the impact of provincial governments on the ‘suppression’ of Chinese resistance, see e.g. Cai, Yongshun, Local Governments and the Suppression of Popular Resistance in China, 193 The China Q. 24 (2008).Google Scholar

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11 Full text available in Mandarin on the Xinhua website: 中共中央关于构建社会主义和谐社会若干重大问题的决定 (The decision of the CPC Central Committee on major issues of building an associalist harmonious society), Xinhua, Oct. 18, 2006, available at: http://news.xinhuanet.com/politics/2006-10/18/content_5218639.htm (last accessed: 24 April 2012).Google Scholar

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13 Included in the preamble of the constitution through the 2004 amendments, the theory of the ‘Three Represents’ (sange daibiao) seeks to legitimize the move to integrate “the most advanced productive forces” in running the country – hence the opportunity for entrepreneurs to become Party members.Google Scholar

14 See CPC Promotes “Core Value System” to lay Moral Foundation for Social Harmony, Xinhua, Oct. 18, 2006, available at: http://news.xinhuanet.com/english/2006-10/18/content_5220576.htm (last accessed: 24 April 2012).Google Scholar

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18 Supreme People's Court, Jan. 15, 2007, Notice of the Supreme People's Court on Printing and Distributing Some Opinions of the Supreme People's Court about Providing Judicial Protection for the Construction of Socialist Harmonious Society (China), available at: http://www.lawinfochina.com/law/display.asp?db=1&id=5886&keyword=harmoniou (last accessed: 24 April 2012).Google Scholar

19 See Supreme People's Court, Mar. 6, 2007, Several Opinions of the Supreme People's Court on Further Displaying the Positive Roles of Litigation Mediation in the Building of a Socialist Harmonious Society, available at: http://www.lawinfochina.com/law/display.asp?db=1&id=5930&keyword=supreme%20people%20court (last accessed: 24 April 2012).Google Scholar

20 Specifically, these opinions stress the need to protect individual rights, especially those of workers and peasants. A number of social conflicts such as those arising from campaigns to restructure state enterprises are targeted. Direct reference is made to protecting fundamental rights in the penal system. Courts must also pay special attention to resolving environmental disputes and issues involving international and comparative law, especially those pertaining to Taiwan, Hong Kong, or Macao. Lastly, the court's opinions stress the fight against judicial corruption and the need for transparency of the justice system. These latter goals must be fully achieved by 2020, by which time the Chinese judicial system, having become more transparent, will thereby be better able to protect human rights. See supra note 19.Google Scholar

21 English transcription: hexie shehui qiu shi fazhi shehui. Google Scholar

22 English transcription: hexie shehui yao kao fazhi. Google Scholar

23 English transcription: hexie shehui xuyao yi ge gengqiang da de geng quanwei de fazhiI. Google Scholar

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25 This caused something of a stir and notably drew comment in an article by Joseph Kahn in the New York Times; see Kahn, Joseph, Chinese Official Warns Against Independence of Courts, Times, N.Y., Feb. 3, 2007, available at: http://www.nytimes.com/2007/02/03/world/asia/03china.html?_r=1&n=Top%2fReference%2fTimes%2 (last accessed: 24 April 2012).Google Scholar

26 English transcription: hexie shijie. Google Scholar

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28 See also, The State Council Information Office of China, China's Peaceful Development Road (2005).Google Scholar

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32 This veritable diplomatic marathon ended at the WTO ministerial conference in Doha with the signing of a 900-page accession agreement. The accession documents are available on the WTO website; see generally http://www.wto.org (last accessed: 24 April 2012).Google Scholar

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35 China launched its policy of rapprochement with the GATT in November 1982 by sending a delegation to participate as observers in the thirty-eighth conference of contracting parties, insisting that it was one of the original parties to the Agreement. In November 1984, China had to obtain authorization to sit in as an observer on the GATT Council and in the conferences of its subsidiary bodies. In April 1985, it became a member of the advisory committee on developing countries.Google Scholar

36 General Agreement on Tariffs and Trade, Communication from the People's Republic of China L/6017, (Jul. 14, 1986).Google Scholar

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39 See Proposal of the People's Republic of China on the Negotiation on Anti-Dumping TN/RL/W66, World Trade Organization (Mar. 6, 2003).Google Scholar

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41 See Member Information: China and the WTO, World Trade Organization (Feb 28, 2012), available at: http://www.wto.org/english/thewto_e/countries_e/china_e.htm (last accessed: 24 April 2012).Google Scholar

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47 For a well-informed synthesis, see Broadman, Harry G., Africa's Silk Road, China and India's New Economic Frontier (2006).Google Scholar

48 Id. However, these figures would need to be updated, as China's presence in Africa is now bigger and deeper, taking on a variety of forms.Google Scholar

49 For a general overview, see Stanley B. Lubman and Leïla Choukroune, La réforme juridique chinoise, 302 Esprit 122 (2004).Google Scholar

50 Bonnin, Michel, Les métamorphoses du totalitarisme, 117 Le Débat 11 (2001).Google Scholar

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52 Georges Scelle, Précis du droit des gens (1934).Google Scholar