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Individual Papers on China
Zhengfa - The Amalgamation of Politics and Law and its Place in the Making of a Chinese Legal Culture
Agnes Schick-Chen, University of Vienna, Austria
Any attempt of defining legal culture has to depart from the very status that law assumes in a given social or political entity. In the case of China the idea of ‘law as the highest authority (falü zhishang)’ is discussed in the context of a rule of law, still not underlying legal theory and practice. The debate on a subordination of law to other instances mostly revolves around two topics: the relationship between law and morality and the one between law and politics. While the first centres on the dichotomy of tradition and modernity, the second, apart from referring to a legalist legacy, seems to be closely related to the Marxist and Maoist view of law. The finding that these two elements, nonetheless, are far from being in the forefront of the Chinese debate on legal culture entails two possible propositions: Firstly, the minor role of Marxist legal thought in discourse might mirror a less direct impact on China’s legal culture than the one it exerts on her legal science and system. Secondly, this might indicate the wish for a separation of political and legal culture with the implication of emancipation from the concept of law as a political instrument that still has not taken place in legal theory and practice of the PRC today. The paper follows these two lines of argumentation departing from the assumption of the discourse being both an indicator and an integrative as well as formative part of the legal culture discussed in it.
Class and Marriage in Rural China in the Mao Era
Weiguo Zhang, University of Toronto, Canada
Class designations in Communist China during the land reform in the late 1940s and early 1950s had fundamentally shattered the earlier stratification system, and the continuous emphasis on class struggle in Mao’s era had reshaped the nature of the social mobility system in the Chinese society. Marriage, as a means for many to achieve social upward mobility, had indeed had dramatic changes in the first three decades of the communist China. Class and marriage are intimately related, yet many questions remain unanswered or highly controversial. With qualitative information collected from 60 focus discussions and some in-depth interviews, and quantitative data collected from 600 households in 30 villages of three Hebei counties, this study attempts to understand how political categories of class influence marriage practices in rural China in Mao era. It investigates (1) class endogamy or heterogamy, (2) class, patriarchy and gender, and (3) class differentials in marriages. The findings are the following: (1) though marriages predominantly occurred within the same class, cross-class marriages did occur; (2) women did not necessarily marry up according to the political categories of class, many of them married down politically; (3) former landlords and rich peasants, if married, married at older ages, and with larger age gaps between spouses, yet there were no difference across classes in marital transfers and marriage distances. I argue that the landlords and rich peasants were clearly disadvantaged in marriage market in the communist society; nevertheless, not all poor and lower middle peasants gained in the family formation processes from the communist revolution. The fact that many women unexpectedly married down the class hierarchy might indicate that men’s rather than women’s marriages were more concerned in the society, since women’s marrying down the class hierarchy benefited men politically. In general, the Chinese revolution failed to eliminate the inequality, but created a new form of inequality, in rural Chinese society in Mao’s era.
Written Shamanism of the Yi and Processes of Change in China: Political Subversion and Identity Claims
Aurelie Nevot, CNRS, UMR 8177 IIAC, France
In this paper, I will talk about the shamanistic writings of a segmented society on the southern Chinese borders, known in the past as “Lolo” and now as “Yi nationality”, where utterances and books are the very basis of beliefs and rites.
The ethnic group involved here (that of the Nipa) is traditionally an oral based one. Their secret and exclusively ritual writing - different from Chinese writing - is the privilege of bimo shamans. Far from being dogmatic, it ensures communication between the human world and that of the spirits. It was transformed by the Chinese Government into a “national writing” which is taught to schoolchildren. Governing bodies consequently aim at standardising and secularising the written characters. In doing this, they are also seeking to eradicate the power of the bimo who are linked to politics. Shamanes from this “half”-society carry out Community worship side by side with village chiefs. Recently they started performing official worship organised by the State. They therefore have close links with central authorities.
The issue here is the capacity of shamanistic writings to adapt when faced with processes of change. As a power stake, religion has become the base for negotiations between the ethnic group and the Government. A pact is achieved at the price of territorial and political reconstructions; shamanic segmentary society refers to an autochthonous leadership. It is tending to change into a federal shamanic society placed under the supervision of the Government which is gaining in legitimacy. The bimo are the initiators of this transposition into new social and political frameworks since they maintain a certain form of power by collaborating with the authorities. Written shamanism is institutionalised for purposes of political subversion and identity claims.
Key words: shamanism, ritual writings, transmission, trance, leadership, “half “-society, memory, autochthony, political subversion, nationalisation, territorial reconstructions, negotiation.
Fieldwork: China, Yunnan Province, Stone Forest District (Shilin)
`Seeking Pleasure' and `Letting off Steam': The Politics of Older People's Activities in Beijing
Anna Boermel, Oxford University
This paper examines the rapid growth of collective, age‑homogenous activities organised by older people in public spaces in Beijing: Strikingly diverse, they include music and dance groups in parks, `conversation therapy' sessions in courtyards, hiking trips to the mountains and a plethora of new exercise groups. Based on field research in 2004 and 2005,1 analyze participants' narratives and official reactions to this phenomenon. I suggest that in contrast to some qigong and yangge‑groups which incurred the wrath of the authorities in the 1980s and 1990s, these activities have been allowed to flourish because they draw on state‑sponsored discourses which emphasize the legitimacy of seeking personal fulfilment in old age. While participants cite the `pursuit of pleasure' as the primary reason for their involvement, they also point out, usually in a more subdued fashion, that `letting off steam' is an important driving force. Paying close attention to the impact of gender and ‑socio‑economic differences;‑‑ ‑ I discuss how the generation‑specific sociality characteristic of these activities enables older people to deal with the numerous frustrations which they face. The paper also investigates the complex links between memory and well‑being and engages with larges questions about subjectivity, authority and control in contemporary urban China.
Choosing Law or Resistance: Strengthening Minority Rights Protection in the Xinjiang Uighur Autonomous Region
Katherine Kaup, Furman University
Although the PRC government purports that the rights of over 105 million of its citizens are protected by the 1984 Regional Ethnic Autonomy Law (REAL), few western scholars have considered how these rights might be more effectively protected within the Chinese courts. Government contravention of the REAL in Xinjiang has been well documented, though there have been no reports of grassroots efforts to appeal in court to minority rights enshrined in the constitution and REAL. A growing body of case law has developed as Han Chinese have filed suit to uphold their labor, expression, and religious rights, though no similar cases have been reported of ethnic minorities challenging in court clear cases of unlawful discrimination, restrictions on assembly and religious practices, or prohibitions on minority language use.
In May 2005, the State Council announced policies requiring local governments to increase ethnic rights education and establish legal aid clinics for minorities. Dozens of legal aid centers have been established since, including seven in Xinjiang’s capital. This paper will assess what type of work these new centers are conducting, discuss Xinjiang’s 2005 Legal Awareness Survey, and provide systematic proposals for encouraging minorities to bring their cases to trial to protect their rights and ease ethnic tensions in Xinjiang.
The paper will be based on October 2006 fieldwork in Xinjiang, my work as Special Advisor on Minority Nationality Affairs for the Congressional-Executive Commission on China in 2005, and my other publications on minorities. (*I had a panel planned, but encountered last-minute scheduling conflicts.)
Legalism and the Rule of Law in China
Carl Minzner, Council on Foreign Relations
Western political science and legal discourse on P.R.C. legal reform efforts since the late 1970s have tended to emphasize the extent to which these reforms have (or have not) involved the borrowing of Western legal concepts of citizen rights and independent judicial checks on the behavior of officials. This paper argues, in contrast, that modern Chinese government efforts to strengthen legal institutions are highly influenced by traditional Legalist concepts of governance that aim at controlling officials through gradated top-down systems of punishment and reward.
Chinese authorities have made a conscious decision to strengthen these core Legalist organizing principles of the Chinese state since the early 1990s with the heavy reliance by Chinese officials on top-down responsibility systems as a means to manage and control local officials. This trend is undermining efforts of legal reformers to build up legal institutions as an independent, alternative check on local officials.
This paper draws on Party documents, modern Chinese law, and Legalist philosophical works. Initially, I had been trying to coordinate with Kate Kaup to organize a panel tentatively titled New Directions in Chinese Law. I would still be interested in collectively participating in such panel if there is sufficient interest.