Those who follow events in China will have noted recent reports of the intimidation, detention, abduction and torture of well-known Chinese activists, especially lawyers. While I would like to add my voice to those condemning this string of incidents, I would also like to sound a note of caution against focusing exclusively on the plight, or occasional successes, of the handful of well-known activist lawyers. This fails to give credit to the accomplishments of the many less prominent lawyers or shed light on the larger picture of what is going on in the world's most populous nation.
In a recent article in Foreign Policy, Jerome Cohen, a noted scholar of Chinese law for whom I have tremendous respect, claimed that "[i]t's open season on... those unwise enough to become involved in human rights, criminal justice, and controversial public-interest cases." In another article in the South China Morning Post, Cohen is quoted as saying that: "'[t]hese people are the only source of legal resistance... [i]t's a small group, and if you can disable them, people can't defend their rights.'" Similarly, the China Human Rights Lawyers Concern Group concentrates on a small list of lawyers and Amnesty International recently published a report that seems to base its conclusions on the experiences of 39 prominent lawyers [a third of whom overlap with the watch list compiled by the China Human Rights Group]. While I admire these efforts and appreciate the need for the careful monitoring of prominent lawyers, one simply cannot draw a reasonable assessment of the entire Chinese politico-legal system based on the experiences of such a small group.
The number of lawyers that are involved in criminal justice and other kinds of legal resistance against the Chinese state is actually considerable. Based on a 2007 survey, I estimate that, in any of the last few years, about 60% of China's 200,000 lawyers would have represented a criminal defendant in at least one of hundreds of thousands of cases. Additionally, around 25% of lawyers will have helped sue the state in at least one of tens of thousands of cases. While not all of these cases dramatically challenge the Chinese government, suits against the state commonly address forcible evictions, the expropriation of homes and farms, and the tactics of overzealous police, hardly uncontroversial subjects.
Not every lawyer or every case can make headlines, but focusing too much on those that do provides a biased picture and does not give sufficient credit to tens of thousands of Chinese lawyers. Many of these can only afford to take "rights defense" cases in between routine divorce and contract cases that pay the bills and feed their families. They may take fewer risks and stay out of the media, but this does not make their contributions irrelevant. In fact, the strategy of keeping a low profile sometimes makes them more effective than their more controversial counterparts, and their far greater numbers means that their overall impact may be much more substantial.
Furthermore, the international publicity achieved by a small number of Chinese lawyers may be a major reason that the government has targeted them. This not only means that looking at such lawyers is selecting on the dependent variable, but calls into question the prudence of publicizing the activities of these lawyers without protecting their anonymity.
Looking at this bigger picture I see three possible assessments of this string of detentions and intimidation:
One, the arrests and "disappearances" of a small number of well-known lawyers have frightened the majority of Chinese lawyers into submission. Or, perhaps these tactics are actually being used against a much more significant percentage of Chinese lawyers but this is largely unreported. I, however, saw little evidence of this in interviews with over a hundred and fifty Chinese lawyers over the course of 2010 and the beginning of 2011.
Two, the courageous efforts of the handful of prominent lawyers who have suffered at the hands of the authorities have pushed the envelope of what is permissible, allowing their lesser-known counterparts greater freedoms. An optimistic reading of this assessment might even suggest that the government's extreme reaction is a response to, and proof that, lawyers are having a real impact in thwarting the will of the state.
Three, the horrendous and inexcusable plight of the handful of Chinese lawyers whose abuse has been reported is largely irrelevant to, and tells us little about, the everyday work of most Chinese lawyers and their interactions with the justice system.
We must remember that for every Chinese lawyer whose abduction or detention is reported, thousands of lawyers are challenging the state in myriad unreported ways. The fate of China may depend more on the thousands of lawyers and activists who stay out of the headlines than the few that make them.
2) Traditionally law in China was administered by magistrates who basically were prosecutors, judge and jury rolled up in one. They investigated and adjudicated the case and passed sentence.
3) Suspects were expected to confess their crime, usually under duress.
4) Punishments were corporeal and severe.
The abuses we see in China today are a result of two thousand plus years of baggage. When the PRC was founded this legal legacy was the model that was followed with little or no question. How can anyone expect China to modernize such a fundamental aspect of their civilization in the few decades since the reform and opening up that began in the 1980s?
China has made immense strides in establishing a more modern legal system. It obviously has a long way still to go. It is important that China comes to grips with its judicial system based on its own experience and development and not have it imposed on them from the outside. Their legal system will eventually be an amalgam of traditional and foreign influences that meet the needs of the Chinese nation and its people.
Thank you so much for the comment. I agree both that we need to keep Chinese history in mind when surveying the current state of the Chinese legal system and cannot expect change overnight. I would worry about placing too much emphasis on the past, however. The Mao era in general, and the Cultural Revolution in particular, was a pretty big break from China’s imperial past, though certainly not a complete one. China’s history will continue to influence its development but is only one of many factors.
Regards,
John
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Mr Givens how monolithic is the state?
Can such a vast society be so abstracted and assigned a 'will'?
Are all regions equally repressive, or some more or less than others?
How strong is 'the 'will'' in the Party to move towards the Rule of Law.
Perhaps you would be so kind as to keep these questions in mind for your next blog.
Eric