At China Law & Policy, Elizabeth M. Lynch contrasts Professor Don Clarke’s recent essay about the Jasmine crackdown and China’s legal system with Li Tiantian’s explanation of her three-month disappearance, posted the same day.
Clarke argued that the perception of the authorities’ recent actions as an abandonment of the rule of law was fundamentally misguided:
Since late February, there has been a wave of detentions and disappearances of lawyers, activists and others in China. Especially alarming to many is the government’s apparent disdain for even the modest requirements of its own laws. While some have been detained or arrested in accordance with procedures required under Chinese law, others have simply been picked up by security officials and disappeared. These detentions reflect a deep truth about the system that observers are often tempted to overlook: that China’s legal system has never been about the rule of law. It has been and remains about making government function more effectively.
After enumerating the laws broken in the execution of the current crackdown, Lynch cites Li and other such lawyers in response:
Prof. Clarke presents a government that doesn’t want to give people like Li Tiantian any space; but Li Tiantian has no plans to give up that easily. True that since many of the lawyers’ release, most have kept out of the spotlight, but will they continue to do so? And how can the Chinese government expect them to?
Prof. Clarke is right to contend that the Chinese Communist Party is not interested in a “rule of law” if it means that it will contain the Party. But after 30 years of constantly reiterating – both domestically and abroad – the idea of a rule of law, sending lawyers, judges, and academics abroad to study Western countries’ legal systems, and inviting various foreign legal NGOs to establish offices in China and work with Chinese layers, some belief in a rule of law must have permeated society, especially for academics and rights-defending lawyers, the beneficiaries of much of China’s rule of law programs.
Prof. Clarke compares the Chinese government to a well organized army: sure there are lots of bureaucratic rules that must be followed, but those rules are not intended to be followed by the commander. For Prof. Clarke, an army, with all the rules that help it function, is in no way a rule of law society.
But running a society is different from running an army; unquestionable allegiance to hierarchy is not naturally found in society like it is among foot soldiers in an army. Ultimately, Prof. Clarke’s essay raises another question: while the Chinese government has little interest in rule of law, will these rights-defending lawyers succumb and just disappear? Li Tiantian’s essay upon her release heavily implies that the answer is no and that among some in China, there is a true commitment to a greater rule of law, even if not found within the ruling party.
See also: Li’s later accounts of her detention and interrogation, via CDT.
