“Hope for incremental progress”

In March, Chinese security forces suppressed protests in Tibet. Ever since, international debate has been focussing once again on the People’s Republic’s poor performance in terms of human rights. Swedish Scholar Håkan Hyden is an expert on legal affairs in China, and has assessed the situation in an interview with D+C/E+Z.

[ Interview with Håkan Hydén ]

Does the recent clamp-down in Tibet mean that China is stalling on the road to the rule of law?
Your question makes sense from a Western point of view, but does not really fit the Chinese context. It is important to understand that there is no doctrine of a division of powers in China, and that the law courts are considered part of the government bureaucracy. The implication is that officials who rank higher than judges do not feel bound by judges’ rulings. What really matters is what an official’s superiors say.

And in the regime’s view, Tibet is not about the law, but only about politics.
That is how the Chinese leadership ticks, yes.

So would it make sense to boycott the Olympics to make the government feel international disapproval?

No, I don’t think so. The games are likely to put a healthy spot light on China, exposing problems to the world. In the long run, that will contribute to making the regime accept the principles of human rights.

But haven’t scholars said that the state of legal affairs in China is improving?
That argument can indeed be made, and Randall Peerenboom for instance has done so. Indeed, Jingwen Zhu has shown in a study that, to a large extent, legal progress coincides with economic growth. On the other hand, Franklin Allen, Jun Qian and Meijun Qian have noted that China is one of the fastest growing economies even though neither its legal nor its financial system are well developed. They suggest that China may actually be a counterexample to the theory of economic development depending on the rule of law.

The picture seems confusing.

Well, you must not forget that China is an extremely diverse country. The development of the 17 provinces is very uneven. The communist leadership is pursuing a course of incremental change. Big-bang approaches, after all, ended in failure. Just consider Mao’s “Great Leap Forward” in 1950 or his “Cultural Revolution” in the late 60s. There is no more appetite for messianic transformation. Deng Xiaping spoke of “crossing the river by feeling for stones”. The reform progress is marked by gradualism, experimentation and regional differences, as Natalie Liechtenstein accurately observed. And in that context, the local courts are enforcing what the local political leadership wants.

Are you saying that while Shanghai has something like the rule of law, more remote areas do not?

Once more, your question reflects Western thinking. The Communist Party has the last say everywhere in China. But economic reform does of course depend on legal reform, and both economic and legal reforms have taken on incremental characteristics. Accordingly, there is some scope for lawyers or managers in Shanghai, let’s say, to use labour law, when trying to resolve disputes and tackle problems inside a company, for instance.

But that is not the case all over the People’s Republic?

What political, business and social life is like varies greatly from one region to the next. In terms of socio-economic development, one might say that Tibet lags Shanghai or Beijing by around 300 years. Tibetan society is still marked to a large extent by agriculture and handicrafts, whereas the metropolitan centres are entering the cyber age.

Political and economic needs must often be incompatible in such a diverse setting. How does the system cope with frictions?

There are indeed daunting challenges. The political and economic spheres are increasingly becoming polarised. But hat was similarly the case in the course of Europe’s industrialisation and development. What happened in Europe was basically that mixed systems emerged, with compromises being defined in legal terms. Various stakeholders became involved in negotiating solutions and striking bargains. As a result, it has become possible to pragmatically reconcile the needs of capital and labour, for instance, or those of the environment and industries. The political systems of European nations reflect those dynamics, and make binding laws accordingly. For that to work out, however, stakeholders must be allowed to organise – in trade unions, environmental groups, consumer-interest associations et cetera.

But that is not the case in China.

No, it is not, but there is pressure in that direction in China’s most advanced agglomerations. It is impossible to keep the spheres of politics and economics separate forever. They inevitably start to infringe on one another. Labour relations become tense, environmental crises become unbearable, and, not least, investors want reliable informations and a sense of security. Society has to accommodate diverging needs, and doing so is only possible if interest groups – civil society in other words – are involved. In the course of China’s transition to an increasingly marked-based economy, that will become more and more the case. We are already seeing the signs in the environmental arena. Moreover, I expect that recent labour-law reforms will also be implemented in a somewhat corporatist manner, involving agents who represent conflicting interests in decision-making.

But that does not imply that human rights will be in force soon?

Environmental and social problems are the most urgent. Therefore, progress is likely to occur first in these fields. The Communist Party is unlikely to grant full democratic liberties soon. The way it is managing incremental and experimental change in China depends on its unquestioned authority, after all. On the other hand, the leaders in the most advanced areas understand that society is complex, and that they need engagement by all sorts of people. So they tolerate a certain sense of freedom that is not necessarily granted in more remote areas. However, the approach is by definition not irreversible. Big bureaucracies can – and do – change their minds. That is easier than changing codified law, of course. The irony of the matter, however, is that stability in complex societies does not depend on the iron fist of a central power, but rather on consensus brought about by incessant negotiating, which in turn depends on civil-society goups being allowed to organise.

So that that transformation will be necessary in China too, at some point in time.

Yes, but let’s be clear: there is a difference between the first generation of civil and political human rights and the second generation of social, cultural and economic human rights. China’s leaders are increasingly aware of the relevance of social-welfare law to enhance their legitimacy, but they are not prepared to address such claims in terms of human rights.

Are you saying the international community should forget about human rights in China for the time being?

No, of course not. We should stay in constant dialogue with policymakers and others in China. But we should not allow human rights or Tibet to become the only or even the defining issues in relations with China. The country is home to more than one billion people, it has made reasonable progress in many fields, and it is an important force in the world economy. International leaders must engage China – and hope for incremental change and progress. And that hope is not without empirical base, mind you, there has been very much incremental change and progress in the past.

What are the most urgent problems Chinese society is facing?

Social transformation causes a lot of pressure and tensions because of increasing gaps between the rich and the poor. Such concerns are certainly mounting in China. Another major challenge is corruption. The diversity of China’s provinces and their different stages of development have resulted in regionally specific patterns of corruption. The problem is particularly felt in economically strong provinces like Zhejaing, Fujian, Jingasu and Guangdong, as well as in Beijing and Shanghai. The methods have become very sophisticated. Illicit funds are disguised in many different ways, and the exchange of money and service need not take place immediately.

Questions by Hans Dembowski

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