In her famous 1992 study of networked relationships in entrepreneurial settings, entrepreneurship professor Andrea Larson (University of Virginia), observed how network form of governance highlight ‘reputation, trust, reciprocity and mutual interdependence, and how social control is one of the possible governance mechanisms of network organizational forms.
As it is well-known, networks are a governance mechanism that provides an alternative to both markets and hierarchies. While markets – at least in their most abstract conceptualization – are limited to the private sector, and hierarchies are confined to the public sector, networks span across the public, private, and voluntary sectors. If hierarchies are governed through administrative orders, and markets are coordinated through competition and prices, networks are governed through mechanisms based on trust.
Professor Larson’s words were echoed during the current session of the National People’s Congress by Jian Qin (简勤) and Li Xia (李霞 ), respectively the CEO of China Mobile Guangdong, and the deputy director of Anhui Academy of Social Sciences.
According to CCtime, Jian Qin stated how
The market economy is an economy based on trust, and the social credit system is an important systemic arrangement of the market economy. The construction of a credit reporting system is an important component of the construction of the national credit information system, and accelerating legislation on credit reporting is necessary.
Jian Qin observed how the social credit system still lacks its ‘backbone’, and filed a Legislative Draft on Credit Reporting. In his views, the developmental needs of the social credit system and big data can best be served by a national level law specifying how personal information can be collected, how big data and credit information are to be managed, exchanged across platforms, and how the personal information of citizens is to be protected. In fact, Jian explained, legislative guarantees on the protection of the rights and interests of the subjects of credit information, on the privacy of citizens and on information security are still lacking.
The theme of trust was explicitly raised by Li Xia, who observed how trust is one of the twelve socialist core values. This value is important as nowadays the indicators of social trust show a negative trend, and social governance and governing capability should be strengthened on the basis of social trust. Li Xia proposed to construct a social credit system through the strengthening of relevant mechanisms and systems, such as a mechanism to share social credit information. Li suggested adopting concrete measures to provide guidance and constraints to users, educating them in the good practices relevant to the social credit system. Consumers, she suggested, should gain a greater awareness of self-regulation, and make reasonable and lawful consumption choices, through the guidance of the public opinion, and a set of constraints provided by the government. At the same time, social organizations can be mobilized to contribute in the protection of relevant markets.
In February 1980, the Fifth Plenum of the Eleventh Congress of the CPC passed a document in twelve points, entitled Some Principles for Political Life Within the Party (here, in Chinese). This text never received much attention…at least in the West, despite its claims that it was “an important piece of Party legislation” regulating the political life of members of the CPC. While the temptation to read the Principles against the over-abused bios/Zoe dichotomy might be strong – and fashionable – in imperial China, matters
of state were not debated on the agora by those Greek citizens endowed with bios. Also, the notion of bios does not exist in Chinese thought, where ideas about physical life are expressed through the characters sheng, ming, and Huo, (and ideas about what allows physical life to come into existence and to continue are conveyed by qi, shen, and jing.)
…so what are political commentators talking about, when they discuss the meaning of “political life within the Party“?
On a first, and almost literal, level they are performing one of the most important steps to date in the creation of a distinctively Chinese ontology of political concepts. They are not introducing new words in their language, but using the words they already have – “political life” – and revitalizing them with the infusion of new meanings. They are doing so now, for the first time in seventy-one years: aside from oblique references in the works of Mao Zedong, the notion of political life appeared for the first time in the 1945 Party Constitution:
Article 2. All Party members have the following duties:
(2) strictly respecting Party discipline, enthusiastically participating in political life within the Party and in the domestic revolutionary movement (yundong) (…)
This is only one of the concepts of life that exist in the political landscape created by the CPC Constitution. The 1945 version of the CPC Constitution mentioned the life of the Party (dangde shenghuo), as well as economic life (jingji shenghuo) and cultural life (wenhua shenghuo). To these, later versions of the CPC Constitution added: “material life” (wuzhi shenghuo), the democratic life of the nation, the life of society, the political life of the nation, the life of the people, and the life of the masses.
References to these different forms of life were absent from the 1969 and 1973 CPC Constitutions, where article 12 mentioned only the life of the Party. But, they reappeared in 1977 – when organizational life, political, economic and cultural life were acknowledged. Political life came to prominence again in 1982. Paragraph 16 of the Preamble to the CPC Constitution recited:
The Party correctly conducts criticism and self-criticism in its political life, and conducts ideological struggle in matters of principle, upholding the truth and correcting errors. 。
This sentence of the Preamble was never amended. Neither was “political life” glossed last week. Anticipating the publication of the amended text of the Principles later this month, Professor Xie Chuntao, the Director of the Research Department on Party History at the Central Party School explained that:
Political life within the Party is the main platform where Party organizations educate and manage Party members, and where Party members practice the nature of the Party (dangxing).
Beyond this definition, political life has a broader and a narrower meaning, illustrated by Professor Li Bingxiong, the Deputy Director of the Centre for Anti-Corruption Studies at Sun Yat-sen University:
In a broad sense, political life within the Party encompasses all the political activities occurring within the Party, including the Party’s organizational system, the Party’s culture, political relations within the Party, systems within the Party etc. In a narrower sense, [political life] mainly refers to ideological and cultural activities within the Party, to leadership and decision-making activities, to relations and to systems within the Party, to state of affairs and conducts within the Party etc.
1. Upholding the political line and the ideological line of the Party. 2. Upholding collective leadership and opposing arbitrary decisions by individuals. 3. Protecting the unity of the Party, and strictly observing Party discipline. 4. Upholding the nature of the Party (dangxing) and eradicating factionalism. 5. One must speak the truth, and walk the talk. 6. Developing democracy inside of the Party, and correctly dealing with different opinions. 7. Guaranteeing that the rights of Party members are not infringed upon. 8. Elections must fully express the will of electors. 9. Struggling with wrong trends, evil persons, and evil actions. 10. Correctly dealing with comrades who commit mistakes. 11. Accepting supervision by the Party and the masses, not allowing special privileges. 12. Diligently studying and becoming both red and expert.
This post is written in response to Jean Christopher Mittelstaedt’s criticism of the paper I presented at the 2015 European China Law Studies Association Conference. Jean Christopher Mittelstaedt works with Stéphanie Balme at SciencesPo, in Paris. The criticism I received from him is, thus far, the best and most sophisticated criticism I have ever received. I am not posting the response he sent me. Those who are interested in the question of how we should approach Chinese law may want to get in touch to explore possible ways to start a broader public conversation on this and similar points.
Here is, however, a summary of what Christopher wrote. Among others, my paper holds that principles in Western law are equivalent to “原则” in Chinese law, and therefore “Seeking Truth from Facts” functions as a legal principle.
Christopher’s criticism takes aim at the question of what a “principle” and what a “原则” are, according to the paper. To understand a language, he writes, we have to live within it. Language posits us within a worldview and determines our horizon. Our horizon, however, expands when we enter a foreign language. Whenever we acquire a command of one or more foreign languages, we acquire the ability to live in between two or more different worlds, without negating the worldview our mother tongue has bestowed on us. The most interesting question, here, would be what happened to the speaker’s worldview, what does it mean to our use of language, which semantic detours and how many of them the speaker has to take when the general consensus prohibits the speaker or writer to use his true mother tongue. But, this question relates to the philosophy of language more than to anything else.
When we speak two or more languages, we find ourselves entangled in the problem of interpretation: when we translate from language A to language B, we automatically add an additional layer of interpretation to the meaning B has in the target language. This is a general problem, the critique says, evident in my acceptance of what a “principle” is, and in my projecting the meaning of “principle” onto yuanze 原则. “Principle” does not correspond to the meaning of yuanze 原则. yuanze 原则 was born within a specific horizon of meaning, one that has to be studied and understood. The paper I wrote criticizes the brutalization of concepts in Chinese law, the separation of concepts from the contexts that give them meaning but, the same brutalization is evident in my analysis of what “Seeking Truth from Facts mean”.
1. This response does not put forward a defense of the paper I wrote in September. I believe that the endeavor of:
(1) isolating a word, or a concept, or anything else in Chinese law AND
(2) explaining the word, concept etc. in light of a meaning that originates from the context within which the interpreter operates; or a meaning the interpreter attributes to those who use the explanandum (= thing to be explained) in China is defensible on cognitive grounds only.
While we cannot make sense of the world around us in the absence of at least one cognitive scheme, any attempt to defend the paper on cognitive grounds would amount to nothing more than a statement that:
“because the meaning I have constructed for X according to how I see the world, is the meaning of “legal principle in a Western sense” [where “Western sense is clearly another construct”] then, whenever a Chinese person encounters X he will give to X the same meaning I gave to it or at least very similar one.”
This statement says more about the interpreter, and perhaps about the interpretive consensus within which the interpreter operates than it does about the explanandum. If this point is accepted, then the question remains of why I wrote a paper where paragraph 2 bends back upon itself. Differently stated: why does paragraph 2 tells us a lot about how we Westerners look at principles but, it doesn’t say anything about how Chinese people conceive of yuanze 原则?
2. After all, I have stated that one of my goals is performing what I playfully call “psychoanalyses” of the concepts and “mechanisms” I encounter. In other words, if those who make, interpret and use the law are historical beings whose goals include solving problems as these problems exist in their societies, perhaps their statements could be read à la letter.
For instance, the words in article 33 of the PRC Constitution “the State respects and preserves human rights” can be read as meaning that the state respects and protects human rights. In the absence of nothing less than a clear statement to the contrary emanating from a constitutional authority, perhaps we would not want to assume that article 33 paragraph (3) was included in the PRC Constitution with the intent to pay lip service to rights that belong to every human being. An interpretation based on either the assumption that
(1) Chinese politicians and legislators will always and only say the contrary of what they mean, or
(2) in theory, they may truly mean what they say but, they are in practice unable to achieve their purposes because they have adopted a different set of political principles would be problematic.
In the paper, I explained how I am trying to ‘listen’ to the political/legal system impartially:
Differently, from Michael Dowdle‘s concepts of “constitutional listening”, which itself is an adaptation of the principle of charity, impartial listening does not involve “finding the most coherent interpretation we can” for legal statements. Neither does it involve the Occamian simplicity principle. The human mind strives for explanations which are as simple and as coherent as possible, and it is therefore natural that our search for clarity, simplicity, and coherence leads us to overlook interpretations that seem, to us, to lack these qualities. However, simplicity and coherence may be more an aspiration of those who try to understand Chinese ideology and law, than an objective feature of either ideology, law or both. If this is the case, then the very presupposition that the best possible explanation is the simplest or most coherent one will not enable a better understanding of the law. A seeming incoherence between two or more of the concepts or principles stated or embodied by the same piece of legislation, between law and interpretation, interpretation and enforcement or adjudication ought to be considered among the normal features of the legal system. Impartial listening takes into account the possibility that both coherence and incoherence are normal components of a legal system. Therefore:
(i) it abstains from finding any interpretation that attempts to reduce incoherence, or to simplify complexity;
(ii) it accepts that, in stating principles which may appear naive or incoherent, the law-maker, or the exegete, is stating what he believes to be the truth, using the language that he believes to be acceptable in the political and legal environment within which he operates;
(iii) it considers naivete, excessive simplicity (or complexity), incoherence (or coherence) between concepts and principles as given, and possible symptoms of political or legal dynamics that deserve a further exploration.
It seems that the paper starts out on the right track but then, it derails as it falls back in the very same cognitive scheme it tries to avoid. Yet paragraphs 3 illustrates how “Seeking Truth from Facts” became among others a 原则 yuanze, and some of the meanings that those who use “Seeking Truth from Facts,” say “Seeking Truth from Facts” has. Isn’t this a contradiction I could have easily avoided?
To give an adequate response to Christopher’s criticism, an explanation of how I conceived the paper, and a disclosure of the intentions I had in mind as I set out to write the paper are necessary.
3. To explain how I conceived the paper, I should try to explain how I read Chinese texts.
Here, the ‘how I read Chinese texts’ relates not to the techniques I have learned, and to those I am trying to develop (described here, in part). The ‘how I read’ in the context of this post relates to my perception of the text, and what kind of cognitive processes my perception of the text triggers.
When reading a Chinese text, or a text in an alphabetic language, persons may experience the text verbally, in the sense that upon seeing the characters 实事求是 or the words “Seek Truth from Facts” they may think in words, verbalizing the words in their mind. I do not. I experience the text in a different way. Whenever I read, I visualize each and every word in roughly 50 percent of the page (25 percent if the text is in Chinese) with a single glance. I do not verbalize the words in my mind but, I conceive their meaning (in some case the meanings) visually, as in the case when a person sees a road sign:
Sometimes, I conceive their meaning non-visually, and non-verbally. Sometimes, seeing Chinese characters triggers a flow of images. Sometimes, it is as if characters were moveable components, that could be rotated, shuffled, and arranged at will in the same way wooden alphabet blocks can. I see the text as if the text was not the unitary whole that it is (or it claims to be, or it seems), but a composite of various units of meaning, which are connected in many different ways:
Each unit of meaning may have been born at a different time, because of a variety of different reasons, and it may acquire one or more different meanings over time. The hypothesis that units without meaning exist in legal texts is a hypothesis I reject on very simple grounds:
If “shishi qiushi” really contained no information, then it wouldn’t have been carved on the stone placed at the East Gate of the People’s University (=Renmin University of China).
While reading and commenting on the CCP Statute at Law at the End of The Day, upon seeing 实事求是 I had a flashback of each one of the places, each one of the texts, and each one of the practices where I saw those words, that slogan, motto, chengyu, or principle carved, painted, written, spoken or acted upon. I understood that these artifacts, places, texts, actions etc. were somehow related because, not unlike polyhedra, Chinese tifas and 原则 do have different faces (meanings). Some yuanze perhaps are “weightier” than others, and while the yuanze can be ordered hierarchically, such an ordering is not the only possibility….
4. The intentions I had in mind when I wrote the paper were many. I wanted to give an example of how we may try to understand the information conveyed to us by all those linguistic units we do not really understand. (If we truly understood them, we would not dismiss them as Communist blabber without at least attempting to perform an analysis of what their meaning may be).
I wanted readers to understand how, in reality, principles are neither transcendent nor are they unchanging truths. Principles and 原则 are man-made. They are created in a specific historical, cultural, political, and social context in response to distinct needs，problems or wishes. That 原则 are man-made, and that principles are man-made too, given how they derive from experience and empirical observation, does not say anything as to whether one’s conception of law is consequentialist or deontological. What I found interesting about principles and 原则 is that both of them are ordinary words, words that have transcended the sphere of ordinary language to acquire a different kind of communicative function.
I am trying to work outside of all the approaches, and techniques of China studies, with the goal to unveil the cognitive frameworks I have been using for the past ten or twelve years as a result of being (among many other things) a “China scholar”, and possibly understand where they work, and where they don’t. Trying to step out these cognitive frameworks is possible only if one becomes aware of them first. Again, one can become aware of these cognitive frameworks by listening nonjudgmentally and impartially to what the field says.
Last, but not least, I wanted to stimulate a debate or at least a discussion on whether our current approaches are suited to our goals. As I have explained on at least three different occasions, and in different European cities, I felt that after spending twelve years working mostly on criminal justice, I was hitting a wall that limited my comprehension of what Chinese law is. This wall was a wall made by those ideas, approaches, and techniques that are more or less taken for granted, and therefore seldom interrogated.
One of my goals is understanding what “X” means and how it works, where X may be any concept or institution in China’s legal system. If research is collaborative, then generating some debate at least was essential to achieving this goal. Because of this reason, I deliberately placed a few fallacies, and elements of internal incoherence in the draft version of the paper. Among others, I took the provocative moves of:
a) stating that a semantic equivalence between “principle” and “yuanze” exists, without performing a semantic or etymological analysis of “yuanze”. In fact, I wrote what “Seeking Truth from Facts” means, according to what some of those who use “Seeking Truth from Facts” say it means but, I never said what “yuanze” means, according to what those who write or talk about “yuanze” say it means.
b) explaining what a principle means to “Westerners” by appealing to authority. In so doing, I projected an alleged and perhaps non-existent “Western view” of what a legal principle is on China, while at the same time decrying the use of Western standards to look at Chinese law.
c) suggesting that principles are at the same time eternal unchanging truths and man-made, interpretive entities that do change over time.
In various European countries, different persons are using their own technique to read Chinese legal texts, so I thought I would share mine as I go on constructing it. This is an important endeavor: European sinologists and political scientists were perhaps the first ones who attempted to read and understand Chinese legal texts. Their techniques – as well as the ones used in Australia – however, rest for the most part upon the tacit, and practical knowledge each interpreter has acquired over the years by trial and error. This knowledge should be made explicit: multitasking and information overflow (very few people still read the paper texts of legal documents) are changing the way we read, with the result that these techniques are slowly being lost.
In this post I will explain by simple questions and answers what I focus on when I read some legal texts, using the ‘Notice on Diligently Studying and Implementing the CCP Standards on Integrity and Self-Restraint (original|translation) and the CCP Regulations on Disciplinary Punishments’ (original|partial translation) as an example. The full text of the Notice can be found here (Chinese).What typology of the document is this?
The Notice on Diligently Studying….as its title says is a Notice/通知. Notices/通知 are used either to disseminate documents or to issue communications to Party or to state bureaucracies. The ‘Standards’ and the ‘Regulations’ were issued by a notice. The goal of the Notice on Diligently Studying…is not disseminating these texts but explaining why and how the ‘Standards’ and the ‘Regulations’ should be taught and studied and making their study mandatory.
Is it a public document?
If it is not a public document, then you cannot read it…if it is a public document, then the next questions to ask are:
Which institution issued it?
The Notice was issued by the General Office:
The Central General Office is responsible for coordinating the enactment of Party laws and regulations; its agency for regulatory work is responsible for specific duties.
Where was it published?
The Notice was published on the front page of the paper edition of the People’s Daily, in a column:
….and on the landing page of the People’s Daily website
and on the front page of the Procuratorial Daily, the People’s Police Daily etc. The importance of any document is signaled by the media outlet where the document is published and by its positioning on a newspaper or internet website.
When was it published?
The timing when speeches, notices, regulations etc. are published can and does vary. Xi Jinping’s speech on culture and the arts, for instance, was delivered on 15 October 2014 but, its full text was released on 15 October 2015, eleven days before the date of the Fifth Plenum. The ‘Standards’ and the ‘Regulations’ were issued on 18 October, and the Notice came out today – on the closing day of the Fifth Plenum.
Is an official translation available?
If an official translation is available, then an official translation should be used and read alongside the Chinese text. Great care goes into producing the official translation of legal and political documents. The choice of words used to translate the equivalent Chinese characters can be taken to reflect how legal concepts and/or political concepts are (in part) understood by those who supervised the translators, and how they are meant to be understood by readers. The risk inherent in producing one’s own translations of available documents (or improving available official translations) is pre-imposing our own understanding of legal or political concepts on the text. For instance, translating 宽严相济 as ‘tempering justice with mercy‘ is a choice that produces definite effects on what the text will mean to U.S. trained lawyers. ‘Balancing leniency and severity’ may sound unfamiliar to the ears of a U.S. trained lawyer but, it has the advantage of being closer to at least some of the ideas the sight of 宽严相济 evokes. Not all of the ideas that come to one’s mind whenever one sees 宽严相济 (or anything else) are legal concepts. It is possible that seeing the four ideograms will remind one of the proverbs (成语 chengyu)， stories from the Chinese classics, episodes in Chinese history etc. All of these ideas can, in turn, shed light on the broader meaning of 宽严相济 in Chinese law because they are part of the context where 宽严相济 was created and used.
Is this document as important as it seems?
To this question, there are many possible answers. To some the Notice may be unimportant – the sky is high and the Emperor far away, therefore local Party organs may or may not abide by the Notice they would argue. Others may say that even though study sessions on the ‘Standards’ and the ‘Regulations’ may be mandatory, those attending study sessions will pay more attention to their iPhones and iPads screens than to the ‘Standards’ and the ‘Regulations’.
To me, the Notice is very important because it is one of the various explanatory texts that are being produced at the moment of writing. Some of these texts explain the genesis of the ‘Standards’ and the ‘Regulations’, while the Notice explains why and how they should be taught and studied.
Why, according to the CCP, the ‘Regulations’ and the ‘Standards’ should be taught and studied.
This point is illustrated by the opening sentence(s) of each one of the paragraphs of art. 1 of the Notice:
To take care of the affairs of China the focus must be placed on the Party. ‘To rule the state one must first rule the Party’, and ‘the Party should be governed strictly’. 
Since the 18th Party Congress the Party with Comrade Xi Jinping as its General Secretary has upheld ‘the Party should rule the Party and the Party should be ruled severely’ (…) it has summarized the lessons of Zhou Yongkang, Bo Xilai, Xu Caihou, Ling Jihua, Guo Boxiong (…) the fruits of these experiences in severely ruling the Party have been summarized and turned into moral and disciplinary requirements (…) 
Natural requirements of ‘Comprehensively severely ruling the Party’ are ‘combining ruling the Party according to regulations and ruling the Party according to virtue/morality’ (de 德) 
In documents as this one, the opening sentence of each paragraph is the most important one, because it sets forth the premises, which are then elaborated by the rest of each paragraph, that should guide the correct use of the ‘Standards’ and ‘Regulations’. I will explain how I read sentences as ‘To rule the state one must first rule the Party’, and ‘the Party should be governed strictly’ in a later post.
How the ‘Standards’ and the ‘Regulations’ should be taught and studied, and by whom.
The ‘Standards’ and the ‘Regulations’ should be taught by the Party Committee Core Groups, by Party schools, by schools of public administrations and by cadre training institutes in 2016 and 2017. The ‘Notice’ does not specify which method should be used to study or teach these documents.
Study and teaching are necessary to understand the real significance of the ‘Standards’ and the ‘Regulations’. The significance is illustrated by the Notice as follows: 1) the ‘Standards’ and the ‘Regulations’ add greater specificity to the rules set by the Party Statute. 2) Political discipline is the most important kind of discipline, on grounds that state capacity and legitimacy derive from the ability to maintain political discipline. 3) Party members must be held to a higher standard of behavior than persons not affiliated to the Party.
These three points are meant to guide, to frame how the ‘Standards’ and the ‘Regulations’ are to be understood, and in turn, used.