Children, Rights and Modernity in China

Raising Self-Governing Citizens

O. Naftali

• Publisher: Palgrave Macmillan
• Year: 2014
• Print ISBN: 9781137346582
• eBook ISBN: 9781137346599
• Topic: Social Sciences
• Subtopic: Social Policy
• Index: Social Sciences

This book is an original, ethnographic study of the emergence of a new type of thinking about children and their rights in urban China. It brings together evidence from a variety of Chinese government, academic, pedagogic and media publications, and from interviews and participant observations conducted in schools and homes in Shanghai, China.

1

Recasting Children as Autonomous Persons: Children as Future Citizens and Workers

“Respect for the independent rights of children is the hallmark of any modern, civilized society…. From this day onward, when parents behave in a way that violates these rights, children will be able to voice their objections knowing that the law is on their side” (Cheng and Ren, 2004). So declared a top Shanghai government official following the adoption of a landmark piece of legislation designed to protect the rights of minors in one of China’s largest, most cosmopolitan cities. Shanghai’s 2004 Municipal Regulations on the Protection of Minors (Weichengnian ren baohu tiaoli) urge caregivers and teachers to respect children’s “human dignity” (renge zunyan) and individual personality, and to safeguard their “legitimate rights and interests” (hefa quanyi). These entitlements include the right to “personal privacy” (geren yinsi); to protection from “verbal abuse” (ruma) and “physical punishment” (tifa); and the right to “adequate rest and leisure time” as prescribed by children’s unique physical and psychological characteristics. At the time of their introduction, Shanghai’s Municipal Regulations on the Protection of Minors appeared innovative in both language and scope. They are nonetheless representative of a new and increasingly influential strain of discourse about children and their entitlements in post-socialist China.

In this chapter, I discuss the social, political, and economic conditions which have contributed to the formation of China’s child-rights discourse. I identify the political and social institutions currently involved in the production and dissemination of that discourse, and I describe how national and local legislation, academic works, popular media publications, and pedagogic materials have been promoting discussions about children’s rights since the early 1990s. I argue that despite notable differences between the various strains of discourse about children and their entitlements in contemporary China, there are a number of important commonalities in the vision of the child they promote. First, the Chinese discussion refiects the decidedly modern recognition of children as a structurally differentiated group within society whose members must be allowed to develop “happily and healthily” according to the principles of modern psychological science. Second, it mirrors a new conceptualization of children as distinct and independent persons with identities of their own, not simply as parts of their family, society or the nation. Rather than “objects” or potential victims of various forms of harmful treatment, Chinese children are increasingly regarded in contemporary government and public discourse as “subjects or agents, capable of exercising for themselves certain fundamental powers” (Archard, 2004: 60). For the first time in the history of PRC legislation, these powers include the right to make decisions and to express their views and opinions in matters which may affect children’s lives.

Child-rights legislation “always represents an unstable translation of ideas of right and wrong that exist in the real world and are based on lived experiences” (Hanson and Nieuwenhuys, 2012: 3). The discussion in this and the following chapters therefore considers not only the juridical and official discourse of children’s rights but also how the lived experiences of contemporary Chinese teachers, caregivers and children shape their understandings of this discourse. In the present chapter, in particular, I examine how Shanghai educators and caregivers currently engage with the idea that even young children are able to make independent choices; can “speak (rather than be silenced);” and should be “heard (rather than ignored)” (Archard, 2004: 66).

Drawing on interviews and observations conducted in Shanghai schools and homes, the following discussion addresses this issue while tending to the specific role of social and generational habitus in the formation of China’s contemporary child-rights discourse. As we shall see, it is particularly young teachers and well-educated, elite parents who tend to embrace the new concept of children as autonomous persons with rights, including the right to their own opinions. Their largely positive reception of the child-rights notion partly stems from pragmatic calculations concerning the desirable qualities of a successful future worker in the global market economy. At the same time, however, it also reflects the rising importance of an “individualistic ethic of autonomy” (see Yan Yunxiang, 2011; Zhang Li, 2008) among a younger generation of teachers and among the rising middle classes in China, who are beginning to re-conceptualize the relationship not only between children and adults but also between the Chinese state and its citizenry.

The legal discourse of children’s rights in China

Public attention to children’s rights in China is not an entirely new phenomenon. In the early decades of the twentieth century, Chinese intellectuals of the May Fourth Movement had argued strongly for children’s autonomy and their freedom from authoritarian, patriarchal forces, though they often rationalized their program with the need to achieve national survival and social progress (Anagnost, 1997a; Farquhar Mary Ann, 1999; Jones, 2002; Thøgersen, 2002). Influenced by this modern agenda and by the Marxist notion that the state rather than the family was to assume care for all children in an idealized egalitarian society (Engels, 1978[1884]), the Chinese Communist Party (CCP) likewise sought to assign children and youth a greater role in social and political processes and to strengthen their status vis-à-vis their parents and extended families. The regulations of marriage promulgated in the Jiangxi Soviet in 1931 and later in the Shanxi-Hebei-Shandong-Henan Border Region in 1942, expressly acknowledged that the welfare of children, “the future masters of society,” had been consistently neglected in the past. Regulations in these “liberated areas” also made several specific provisions for the protection of children born out of wedlock and affected by divorce (Sheng et al., 1989: 426). This new attention to children’s wellbeing and the attempt to fundamentally change their status within Chinese society was further reflected in legislative measures introduced by the socialist state after the revolution of 1949.

Notably, China’s new Marriage Law of 1950 attempted to abolish the “arbitrary and compulsory feudal marriage system” which was said to ignore the interests of women as well as children. The law banned such practices as arranged marriages, polygyny, concubinage and minor marriage (defined as marriage between men under the age of 20 and women under 18). While reasserting the duty of adult children “to support and assist their parents,” China’s 1950 Marriage Law also emphasized the duties of parents toward their offspring, particularly children’s right to survival and to adequate treatment.

The Maoist state further sought to limit the patriarchal power associated with three-generation households in China by a systematic attack on the structure of the patrilineage. After 1949, lineage property was confiscated in the name of land redistribution and collectivization. Collectives and party cadres gradually replaced the political and economic functions of lineages (Potter and Potter, 1990: 255; Yan Yunxiang, 2003: 213; see also Yang C.K., 1959). The destruction of the economic basis of lineage power was accompanied by a frontal attack on ancestor worship and on the Confucian notion of filial piety. In a direct strike against the cultural and religious core of the adult-child relationship in China, Maoist official campaigns attempted to reduce the past prerogatives of the elderly by removing state sanctions for these traditional beliefs and rituals. Consequently, it became harder for parents to invoke the threat of supernatural punishment against children who failed to respect them (Davis-Friedmann, 1991; Davis and Harrell, 1993). The systematic attempt to shift power from the old to the young in post-1949 Chinese society (Yang C.K., 1959; Diamant, 2000; Yan Yunxiang, 2003), reached its apogee during the tumultuous decade of the “Cultural Revolution” (1966–76) in which Chinese children and youth were called upon to publicly critique and strictly denounce their elders and seniors who were accused of “counterrevolutionary” thinking.

Following the end of the Cultural Revolution in 1976 and the introduction of liberal economic reforms in 1979, the official drive to empower and protect children through legal measures became even more pronounced as the Chinese state began to emphasize the principle of government by law. A new marriage law, introduced in 1980 to replace the previous law from 1950,¹ reiterated, and to some extent expanded, the prohibition on domestic violence and maltreatment and “desertion of one family member by another.” The 1980 PRC Marriage Law emphasized the duty of parents “to bring up and educate their children” and contained the notion that adult family members should “cherish the young” (PRC National People’s Congress, 2001). Notably, the law also employed new and evocative language in asserting the “lawful rights and interests” of women and children, thereby challenging the past dominance of the concept of moral “obligations” in PRC legal constructions of familial relations (see Keith, 1997: 38).

Despite this new emphasis, the 1980 Marriage Law also attempts to balance minors’ rights with those of adult caregivers. It requires children to “respect the old” and to “support and assist” their parents as well as their grandparents (both paternal and maternal), a stipulation that did not appear in the 1950 Law. The 1980 law also grants parents the right to “subject their children who are minors to discipline,” and demands that both parents and children do their best to “maintain equal, harmonious and civilized…family relations” (PRC National People’s Congress, 2001). Similar language appears in China’s Constitution, adopted in 1982 and amended four times since (in 1988, 1993, 1999, and 2004). Like China’s Marriage Law, the Constitution recognizes children as a category of “weak” social persons whose lawful rights and interests require the state’s special protection. However, in affirming the duties of adult children toward their parents, the Constitution is as concerned with the promotion of reciprocal harmonious relations within the family as with the guarantee of children’s individual rights (see Information Office of the State Council of the PRC, 1996).

The legislative measures of the early 1980s in China emphasize the equal status of children within the family and highlight the role of the law in regulating family affairs. At the same time, however, the new Marriage Law and the Constitution also seek to limit children’s rights vis-à-vis their parents while rehabilitating the traditional notion of filial piety. That notion is now presented as a precondition to the maintenance of “harmonious” family relations, one of the hallmarks of a Confucian family ethos that had been thoroughly challenged during the first three decades of socialist rule. In part a response to the social disruptions that occurred in family life during the Cultural Revolution these provisions indicate growing anxiety in reform-era China over rising social instability and the “declining health” of the family in the age of market reforms (Keith, 1997: 30). The new emphasis on children’s duties toward parents may further reflect economic calculations on the part of the Chinese government which recognized that it could not possibly provide welfare support for the growing sector of the elderly, especially in the age of the One-Child Policy (see Wolf, 1985; Cook, 1989: 395).

Beginning in the early 1990s however, we see a discernible shift in Chinese legal formulations of children and their entitlements within the family and society, together with a reconceptualization of the type of rights which children ought to possess. An important milestone in this respect was China’s ratification of the 1989 UN Convention on the Rights of the Child (UNCRC). A legally binding document, the UNCRC grants children the “right to survival; to development to the fullest; and to protection from harmful influences, abuse, and exploitation.” Unlike previous formulations such as the 1959 UN Declaration of the Rights of the Child, the 1989 UNCRC also recognizes children’s autonomy, the importance of children’s views and the concept of children’s empowerment by assuring their right to “freedom of expression and thought,” “privacy,” and “freedom of association” (UNICEF, 2007; see also Freeman, 2000).² China reportedly played a significant role in the shaping of this international charter and was one of the countries that raised the draft resolution for the approval of the Convention in the UN.³ The Chinese government formally ratified the UNCRC in 1990 and has since submitted periodic reports to the UN Committee on the Rights of the Child, the international body responsible for monitoring its implementation.

China’s ratification of the UNCRC is significant in several ways. First, it indicates the Chinese government’s readiness to adopt a canon that (presumably) represents universally agreed norms for children’s development (Naftali, 2009). Second, it reflects the distinctly modern recognition that minors constitute a different social category—“if children were simply viewed as human beings, albeit smaller and younger human beings” (see Archard, 2004: 60; Boyden, 2001: 191), they would already have certain rights under China’s existing laws. Lastly, China’s ratification of the UNCRC also indicates the Party-state’s acknowledgment that children are in fact individual subjects, and as such, possess fundamental entitlements under the law.

Following the adoption of the UN Convention on the Rights of the Child, China promulgated its own set of regulations dedicated to children’s rights. The first article of China’s 1992 Law on the Protection of Minors (Weichengnian baohu fa) echoes socialist-era rhetoric by emphasizing the importance of training children to become “successors to the socialist cause with lofty ideals, sound morality […], and discipline” by educating them “in patriotism, collectivism and socialism” (All-China Women’s Federation, 2006). However, an examination of the rest of the document, the first of its kind in the history of PRC legislation, reveals a distinctively new way of thinking and talking about children and their entitlements.

Like China’s Marriage Law and its Constitution, the 1992 Law on the Protection of Minors (amended in 2006), prohibits the maltreatment of children at school or in the family, thereby recognizing that minors form a group “whose members experience the exercise of power differently to adults” (James et al., 1998: 211). Notably however, the stated goals of China’s new law, whose contents have been disseminated through various media campaigns over the past two decades or so, are to safeguard minors’ “lawful rights and interests” while upholding their “personal dignity (renge zunyan),” a new, important term which does not appear in earlier legal formulations concerning children (All-China Women’s Federation, 2006). The 1992 law thereby acknowledges that minors (defined as persons under the age of 18) are not ancillary to their families but constitute a separate social group that is entitled not only to protection but also to respect as human beings.

Addressing a child’s basic welfare rights to survival, provision, and education,⁴ China’s Law on the Protection of Minors also details specific protection rights to which underage citizens are entitled. These include the right to protection against “domestic violence” (jiating baoli), corporal punishment, and “any act which degrades” children’s “dignity” at school. For the first time in PRC history, the law further asserts children’s right to personal privacy (geren yinse) and to receive adequate time for “sleep and entertainment” according to their mental and physical developmental requirements.

One of the pivotal questions underlying any discussion of children’s rights is whether children actually have the capacity to make choices on their own and to clearly express these choices (Archard, 2004: 54; see also Schoeman, 1983). While the UNCRC details a series of civil and political “participation rights,” and strongly advocates the idea that children are capable of taking part in decisions which affect their lives (at least when they reach a certain age and level of maturity), China’s Law on the Protection of Minors lacks such a clear assertion; the law only stipulates children’s right “to express their views in matters concerning them” within the family and requires educators to foster students’ “ability for independent thinking” at school. In effect, however, the Chinese law promotes a new, liberal conceptualization of the child, as an autonomous person with a separate identity and individual interests which adults must respect and attend to.

Chinese legislation in the areas of family and criminal law since the 1992 Law on the Protection of Minors has also started to reflect this position. A child who has become involved in judicial proceedings is now allowed “to express his/her personal views” and when parental custody is disputed in divorce cases, courts in China are now instructed to hear “the opinions of children aged 10 and above” and consider these opinions as “decisive factors in [their] eventual judgment.” The same is true of adoption proceedings involving a child 10 years of age or older: the child’s opinions about the adoption must also “be taken into account” (United Nations Committee on the Rights of the Child, 2005a: 18).

Local governments in China have likewise started to promote the idea that children should be allowed to take part in decision-making processes in matters which concern them—including the promulgation of child-related legislation.⁵ Prior to the introduction of its 2004 Municipal Regulations ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgements
• Introduction
• 1 Recasting Children as Autonomous Persons: Children as Future Citizens and Workers
• 2 Children’s Right to Self-Ownership: Space, Privacy, and Punishment
• 3 Constituting Rights as Needs: Psychology and the Rise of Middle-Class Childhood
• 4 The Filial Child Revisited: Tradition Holds Its Ground in Modern Shanghai
• Conclusion
• Notes
• References
• Index