To start at the beginning, no one in their right mind would go to court in China to recover losses. No matter how egregious the event; how crooked the other parties; or how obvious the fraud, going to court is simply an excruciatingly painful way of committing suicide.
To most of us, China has no rule of law, and whatever system of law does exist is totally corrupt. In this regard the Chinese government’s statements that, “Judicial injustice is fatally destructive to social fairness” or that in future they will weed out corruption in their court system, thus “governing the country according to law”, is just propaganda.
The truth is evident for all to see in the same government report which states, “Socialist rule of law must uphold the parties leadership, and party leadership must rely on socialist rule of law”
To us in the West, particularly in the United States, these statements seem to come directly from the pages of George Orwell’s novel 1984 where government statements were in news-speak — a language created to ensure that everyone was aligned with government policy — and where surveillance was pervasive, censorship absolute, and deviant thought criminalized.
There can be no question that China neither now has a rule of law, nor is moving towards the rule of law, at least as we in the West define the term.
On the other hand, the Chinese have a different concept of rule of law. Far from being a recent invention of its communist leaders, their rule of law concept was developed over a period of some 600 years — 9th century BCE to 3rd BCE. And, today, 2200 years later, China’s current leaders are trying to build on that concept.
The fundamental difference between China and the U.S. is that China is statist, where laws exist to support the state the where state takes precedence over its citizens; while the U.S. is individualistic, where laws exist to protect the individual. Neither China nor the U.S. accepts that the other has a valid concept of the rule of law. Each thinks the other as deviant.
We in the U.S. fail to recognize that most Asian countries, including those we define as industrialized democracies such Japan, Korea, and Singapore, are in fact statist.
We also fail to realize that while Western European parliamentary democracies place the rights of the individual over the demands of the state and therefore create laws to protect the rights of their citizens, there are limitations. In this regard the U.S. goes to the extreme. It alone believes its citizens require constant protection from their government and particularly from their elected leaders who are assumed to be little more than a bunch of crooks.
Many countries are governed by constitutions, but the U.S. is unique in that its founding fathers having promulgated their constitution, almost immediately went about adding 10 amendments to the constitution they had just created. The constitution defines what government can do, while the Bill of Rights defines what government cannot do.
At the same time The U.S. government was purposely built around three virtually autonomous groups, each ensuring that the other could not move beyond the areas of designated responsibility. We call this checks and balances. The Chinese may call this political gridlock and anarchy. It was as if the founding fathers went out of their way to create a system where government’s ability to effect any change was severely restricted. As we look at the U.S. government today, we might agree that the efforts of the founding fathers were quite successful.
Given the unique nature of the U.S. government and its particular definition of the rule of law and the litigious culture it has spawned, it may well be that the U.S. is deviant and China more mainstream.
The problem facing China is not the need to move from the Chinese concept of the rule of law to the Western concept, but rather that the present system of rule of law has become corrupt.
The accepted concept as formulated in the 3rd century BCE stated clearly, The law code must be clearly written and made public. All people under the ruler are equal before the law. Laws should reward those who obey them and punish accordingly those who dare to break them. Thus it is guaranteed that actions taken are systematically predictable.
China’s leaders accept that their system now favors the rich and powerful over the poor and powerless, and are trying to move back to the original concept.
Our need is to accept China’s concept of rule of law as being valid for China. Until and unless we make a greater effort to understand the Chinese concept of rule of law we cannot reach a modus vivendi and this is very dangerous.
In this regard, the ongoing Hong Kong student demonstrations are to a large degree an example of a dangerous situation resulting from the failure of young Hong Kong people to understand the Chinese concept of rule of law. Hong Kong students follow the Western individualistic concept and reject China’s statist concept. Since Hong Kong is part of China this a dangerous and counter productive point of view.
The students see two problems:
1. The need to achieve true democracy where the entire adult population plays a role in the nomination of candidates for legislative and executive office and where voting is based on universal suffrage
2. The need to return to a more equitable society when the price of property was within the reach of the middle class and salaries and wages rose in line with GDP.
There can be no doubt that both problems are real. However, the underlying assumption that a more democratically elected government would naturally create a more equitable society is demonstrably incorrect.
Hong Kong’s more equitable society was best achieved under British colonial rule, where virtually nobody voted but where its people enjoyed the highest degree of human rights and personal freedom.
- It was under colonial rule that newspapers were free to criticize government and where even in the most difficult periods the police acted with restraint.
- It was under colonial rule that progressive social legislation was developed and worker’s rights protected.
- It was under colonial rule that government sponsored massive investment in low-cost and middle-income housing
I am certainly not suggesting a return to colonial rule.
I am, however suggesting that the social problems facing Hong Kong today are not the fault of the Chinese but rather the direct result of a corrupt local government.
Under the terms of the Joint Declaration, Hong Kong operates under the one-country-two-system concept, and at least from their point view the Chinese government has lived up to their side of the bargain. If today Hong has become a plutocracy where the rich and powerful have taken over government, that is Hong Kong’s problem.
More to the point, the problems of corruption facing the people of Hong Kong are similar to the problems facing the people of China. The difference is that unlike Hong Kong, the Chinese government has recognized this problem and is taking active steps to effect real change.
It is ironic that even though both China and Hong Kong share the same problems of corruption, the students were unable to see that the Chinese government is potentially their best partner to effect a solution. Rather than public demonstrations that lead only to less freedom and more problems, those in Hong Kong looking for a solution, might have approached Beijing.
For the past 2200 years successive Chinese governments have reacted badly to anti-government demonstrations. Old habits are hard to break. However, these same governments have at least sometimes reacted positively to appeals to the central authority.
This might have been a great opportunity. China has a vested interest in maintaining a secure and prosperous Hong Kong. Having said that, the PRC Government will not allow Hong Kong to establish precedents that will cause disruption in China. On the other hand, a polite approach to PRC leaders by the activists, would have at least given China’s leaders an opportunity to provide real assistance in a manner they would consider to be reasonable
Democracy is about human rights and personal freedoms. It is about ensuring an equitable society where all people benefit.
As far as voting is concerned, everybody votes in the Peoples Democratic Republic of Korea, but that does not make North Korea a good model to follow
 International New York Times, China set to embrace law, within limits, 24 October 2014