This book answers one simple question: what can western-inspired legal reform achieve in China, a country that is excessively controlled but inadequately governed? This overarching question is divided into two enquiries. Can western-inspired legal reform make substantive changes, given the pre-existing social control system in China? Can it contribute to the better governance of China, from a localised perspective? These enquiries lie at the heart of China’s legal modernisation. They must be answered if continuing legal reform is to be justified in post-1978 China.
This book answers these questions by studying the Chinese reform of community sanctions and measures (CSM).1 Before explaining what kinds of CSM exist in China and how this study examines them empirically, I would like to first clarify what is ‘governance’ and ‘social control’, why China is excessively controlled but inadequately governed, and how western-inspired legal reform is affected by this situation.
Governance and Social Control
Governance and social control are two widely discussed but rarely defined concepts. They seem to be self-explanatory, but different authors use them in quite different senses. In his book Governing Through Crime, Simon (2007) gives a comprehensive analysis of how the centring of crime control transformed the USA profoundly in political, social and cultural spheres, but he does not explicitly define ‘governing’ or ‘governance’. Huther and Shah (1998) give ‘governance’ a welfarist definition. They define ‘governance’ as ‘the exercise of authority through formal and informal institutions in the management of the resource endowment of a state’ (Huther and Shah 1998: 2). Thus, for them, the quality of governance depends on how effective the exercise of state power is in improving citizens’ quality of life. In contrast, Kaufmann et al. (1999) give ‘governance’ a liberalist and pragmatic definition. They argue that the concept of ‘governance’ should comprise the way a government is selected, monitored and replaced, and the capacity of a government to implement policies effectively (Kaufmann et al. 1999: 1). Accordingly, the indicators for governance are voice and accountability, political stability, absence of violence/terrorism, government effectiveness, regulatory quality, rule of law and control of corruption (Kaufmann et al. 2009).
This book defines governance as ‘systematic ways of dealing with the relationships between the state, individuals, and institutions’. It avoids attaching a welfarist or liberalist tag to the definition of governance because, as a matter of fact, not all societies are governed by these values.2 A model of governance is most directly influenced by the state authority,3 but eventually it draws strength and legitimacy from culture, religion, knowledge and technology, historical legacy and many other elements.4 In this sense, how a country is governed diversifies a lot across the world. Some countries embrace liberal values and emphasise the state’s obligation in upholding individual liberty and facilitating the realisation of citizens’ rights. Others, in contrast, stress the individual’s obligation to comply with collective values and social norms; the conformists are awarded with job security and welfare benefits, while the non-conformists are punished with social marginalisation (Cavadino and Dignan 2006: 173–74). Both types of governance can be effective in the local context, although looking from the other side, it may appear to be incomprehensible or problematic.
However, it must be stressed that recognising diverse governance does not equal arguing for exceptionalism. This is because all types of governance, no matter how different they are, must serve three basic purposes: first, to minimise the conflicts between the state, individuals and institutions; secondly, when conflicts do arise, provide solutions; finally, facilitate collaboration between the state, individuals and various institutions to achieve the development of a society. If a type of governance cannot serve these purposes properly, it is ineffective and needs reform.
Moreover, in a global era, to minimise conflicts and maximise collaboration, a government has to respect some widely accepted values. As a result, there is considerable convergence between different types of governance. For example, Wang Y.H. (2015) argues that for the sake of gaining foreign investors’ collaboration, even authoritarian regimes are willing to accept the rule of law. This is by no means the only reason, as the later chapters of this book will demonstrate.
The other reason why this book adopts a value-neutral definition of governance is: governance is not a static issue; the core values governing the same state can vary a lot at different historical stages. For instance, Garland (1985a) illustrated how strict liberalism gave way to welfarism in the early mid-twentieth century, when Britain tried to find a strategic solution to the escalated conflicts between the underclass, capitalists and the minimalist state. According to him, CSM formed part of a ‘penal-welfare complex’ in Britain; the complex increased the underclass’s dependence on the state, thus strengthened the state’s control over the underclass. In later chapters, this book will explore whether the Chinese CSM reform reflects similar governance adaptation.
This book sees social control as an aspect of governance. It defines social control as ‘suppressive responses to undesirable factors in governance that involves the coercive use of state authority’. ‘Undesirable factors in governance’ include but are not limited to law-breaking and deviant behaviour, behaviour disapproved by the dominant political ideology and behaviour that disrupts the regulatory routines of government agencies. ‘Involving the coercive use of state authority’ comprises two situations. First, coercion is actually inflicted by the state, for example, a court order is passed; an administrative decision is made; political censorship is initiated. Or, coercion is not actually inflicted by the state, but control is achieved through disciplinary effects, for example, a passenger leaves a plane ‘willingly’ for the fear that the flight attendant will hand him or her to the airport police as a terrorism suspect; a cadre complies with written or unwritten rules in a government agency for the fear of being dismissed or disciplined; a NGO bends its policy to avoid censorship.5
Social control exists in every model of governance. It is not the ‘dirty business’ of the state but an integral task of governing. This is because no matter how well designed a type of governance is, there will be occasions where peaceful solutions to conflicts cannot be found, or willing collaboration is not attainable. Social control is needed in such situations to ensure the stability and functionality of a society. The real question is how much control is needed and how it is justified.
In liberal ideals, effective governance should be achieved with minimum coercive control; when coercive control is used, it should be justified by law and judicial authority. However, scholars argue that this is no longer the case in some liberal democratic countries, notably Britain and the USA (Bottoms 1995; Garland 2001; Simon 2007; Lacey 2008). Democratic politics in these regimes seem to have malfunctioned in relation to crime control. Instead of contesting each other, major political parties unanimously turn to punitive penal policy to attract floating voters (Bottoms 1995). Expert opinion of penal professionals clashes with populist sentiments.6 The result seems to be escalating conflicts and mutual distrust between the penal elites and the masses (Pratt 2013).
Relying on populist support, executive authority surpasses the judiciary to become the more trustworthy crime fighter (Simon 2007: 33–74). The intrusive nature of executive power eventually transmits the punitive effect to non-criminal realms (Beckett and Herbert 2008; Beckett and Murakawa 2012). As a result, the overall level of control rises in liberal regimes, because people and institutions are seen as acting legitimately when they act to prevent crimes or other troubling behaviour that can be analogised to crimes (Simon 2007: 4).7 To make the situation worse, it is usually the minority, the poor and the marginalised who fall victim to the enhanced social control. The combined effect leads to a more segregated, polarised and homogeneous society. The nature of liberal governance is thus changed: once there is organic solidarity that is achieved through diversity, tolerance and willing collaboration; now there is mechanical solidarity that is based on coercion, homogeneity and forced cooperation (Garland 2013).
When it comes to China, the common impression seems to be that the country is governed through rigid control. However, this book argues that contemporary China is excessively controlled but inadequately governed. In other words, the current model of governance in China excessively relies on social control to suppress conflicts and facilitate forced cooperation; it falls significantly inadequate at resolving conflicts and achieving willing collaboration. This situation can be traced to the early days of the ‘open-up and reform’ (gaige kaifang) era.
Inadequate Governance, Excessive Control and Legal Reform
As in any other society, an ‘organic’ type of governance exists in traditional China. It is primitive, but has its own ways of solving conflicts and facilitating collaboration between the state, individuals and various social institutions. However, this organic governance began to dissolve since the late nineteenth century, when China’s modernisation started. There were numerous attempts in the following 100 years to form a new type of governance (San-min Doctrine, Soviet communism and Cultural Revolution), but they all failed due to external or internal reasons. When the task was passed to the Communist Party of China (CPC) government in 1978, the leadership made two important decisions.
The first one was to not govern too much. In other words, the CPC government decided to walk away from the responsibility of governing in some spheres. The Chinese cou...