[Joint House and Senate Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
ACCESS TO JUSTICE IN CHINA
=======================================================================
ROUNDTABLE
before the
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
JULY 12, 2004
__________
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
House
Senate
JIM LEACH, Iowa, Chairman CHUCK HAGEL, Nebraska, Co-Chairman
DOUG BEREUTER, Nebraska CRAIG THOMAS, Wyoming
DAVID DREIER, California SAM BROWNBACK, Kansas
FRANK WOLF, Virginia PAT ROBERTS, Kansas
JOE PITTS, Pennsylvania GORDON SMITH, Oregon
SANDER LEVIN, Michigan MAX BAUCUS, Montana
MARCY KAPTUR, Ohio CARL LEVIN, Michigan
SHERROD BROWN, Ohio DIANNE FEINSTEIN, California
DAVID WU, Oregon BYRON DORGAN, North Dakota
EXECUTIVE BRANCH COMMISSIONERS
EXECUTIVE BRANCH COMMISSIONERS
PAULA DOBRIANSKY, Department of State
GRANT ALDONAS, Department of Commerce
LORNE CRANER, Department of State
JAMES KELLY, Department of State
STEPHEN J. LAW, Department of Labor
John Foarde, Staff Director
David Dorman, Deputy Staff Director
(ii)
C O N T E N T S
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Page
STATEMENTS
O'Brien, Kevin J., professor of political science, University of
California, Berkeley, Berkeley, CA............................. 2
Liebman, Benjamin L., associate professor, director, the Center
for Chinese Legal Studies, Columbia University, New York, NY... 6
APPENDIX
Prepared Statements
O'Brien, Kevin J................................................. 32
Liebman, Benjamin L.............................................. 34
Submission for the Record
Excerpt from Rightful Resistance: Contentious Politics in Rural
China, dated June 2, 2004, by Kevin J. O'Brien, Department of
Political Science, University of California, Berkeley and
Lianjiang Li, Department of Government and International
Studies, Hong Kong Baptist University, Kowloon, Hong Kong, SAR,
China.......................................................... 39
ACCESS TO JUSTICE IN CHINA
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MONDAY, JULY 12, 2004
Congressional-Executive
Commission on China,
Washington, DC.
The roundtable was convened, pursuant to notice, at 2 p.m.,
in room 2200, Rayburn House Office Building, John Foarde (staff
director of the Commission) presiding.
Also present: David Dorman, deputy staff director; Susan
O'Sullivan and Rana A. Siu, Office of Assistant Secretary of
State for Democracy, Human Rights, and Labor Lorne Craner;
Susan Weld, general counsel; Carl Minzner, senior counsel;
Keith Hand, senior counsel; and William Farris, senior
specialist on Internet and commercial rule of law.
Mr. Foarde. That is the magic signal that 2 o'clock has
arrived and we ought to get under way.
My name is John Foarde. I am the staff director of the
Congressional-Executive Commission on China and represent the
Commission Chairman, Congressman Jim Leach.
On behalf of Chairman Leach, Co-Chairman Senator Chuck
Hagel, and the other members of the Congressional-Executive
Commission on China, welcome to this afternoon's roundtable.
Today we are going to look at the dangerous disconnect
between formal Chinese legal institutions and the ability of
the average citizen to access them. Authoritarian rule and
relatively under-developed legal structures have meant that
Chinese citizens must rely heavily on local protest movements
and popular appeals for justice to find redress for their
grievances, particularly in rural China. Despite a growing
Chinese legal profession, the average citizen still faces
significant political and economic problems in accessing the
formal Chinese judicial system. As a result, Chinese citizens
resort to a vast array of different tactics to resolve their
grievances. These include mass petitions of government
agencies, appeals to the media, and rural protests, in addition
to more formal measures such as consultations with local
justice bureaus or government-funded legal aid centers.
This afternoon, we want to examine the various strategies
pursued by Chinese citizens to seek true justice, analyze how
effective they may be, and assess how they reflect on
government efforts to manage mounting social tensions.
We have two distinguished panelists to help us this
afternoon, Professor Kevin O'Brien, professor of political
science at the University of California, Berkeley, and
Professor Benjamin Liebman, who is associate professor and
director of the Center for Chinese Legal Studies at Columbia
Law School.
Let us get started by introducing Kevin O'Brien in more
detail. He earned his Ph.D. from Yale University and works on
Chinese politics, political institutions, and post-
revolutionary change. His most recent work focuses on the
theories of institutionalization and popular resistance,
particularly the causes of rural instability. He is the author
of ``Reform Without Liberalization: China's National People's
Congress and the Politics of Institutional Change,'' as well as
articles on legislative politics, local elections, and village
political reform.
As we have in the past two and a half years at these
roundtables, each of our panelists will have 10 minutes to give
an opening presentation. I will remind you after about 8
minutes that you have a couple of minutes left.
Then when both of you have had a chance to speak, we will
open it up to questions from the staff panel. We will go until
3:30 or so, or until we run out of steam.
With that, Kevin O'Brien, welcome. Thank you for coming all
the way out here from California to help us this afternoon.
STATEMENT OF KEVIN J. O'BRIEN, PROFESSOR OF POLITICAL SCIENCE,
UNIVERSITY OF CALIFORNIA, BERKELEY, BERKELEY, CA
Mr. O'Brien. Well, thank you for the opportunity to come. I
am particularly pleased to be here, not the least because
Representative Leach was the Congressman from my district
several redistrictings ago when I was in college.
For much of the 1980s and 1990s, some Chinese villagers
engaged in a form of protest that has been called ``rightful
resistance.'' This involves using the policies, laws, and
commitments of the central state to combat local officials who
have been ignoring those policies, laws, and commitments.
In the early 1980s and 1990s, rightful resistance tended to
be mediated, in the sense that protesters did not directly
confront their opponents, but instead relied on a powerful
third party to address their claims. This meant that activists
acted under the sufferance of, and energetically sought support
from, officials, cadres, journalists, anybody who would
communicate their grievances to higher ranking officials. When
they acted in this mediated fashion, rightful resisters
sometimes mobilized popular action, but their main goal was to
use the threat of unrest to attract attention from potential
mediators and to apply pressure on office holders at higher
levels to reign in their underlings. They sought to bypass
their local opponents rather than to force them to negotiate.
More recently, there has been a noticeable radicalization
of tactics, a move from the politics of humble petitioning to
the politics of disruption. In places such as Hengyang County,
Hunan Province, protest leaders increasingly place demands on
their targets in person and try to wring concessions from them
on the spot. This direct form of rightful resistance does not
depend so much on high-level intercession, but on skilled
rabble rousers and the popular pressure they can muster.
Although protest organizers still cite central policies,
rather than sounding fire alarms, they and the villagers who
join them try to put out the fires themselves. Rightful
resisters may still view the center as a symbolic backer and a
guarantor against repression, but they no longer genuinely
expect higher-ups to intervene on their behalf. Instead, they
assert a right to resist, not only to expose and denounce
unlawful acts, and they regard themselves and their supporters
to be capable of resolving the problems at hand.
The direct action that we are looking at has three
different variants. The least confrontational might be called
publicizing a policy. In the course of studying documents,
activists make known or distribute materials which they say
show the county, township, or village cadres have violated some
central or provincial directive. They do this to alert the
public to official misconduct and to mobilize opposition to
unapproved local policies. The documents they
select always relate to issues that concern villagers greatly,
like reducing taxes, decrying corruption, or promoting well-run
village elections.
Policy disseminators use a variety of methods. They might
show copies of laws to their neighbors. As their confidence
mounts, they tend to turn toward more public ways to expose
local misconduct, such as playing tape recordings, or even
using megaphones or loudspeakers to inform villagers of policy
misimplementation. Sometimes they do this in one village.
Sometimes they open up their field of action. An example of the
latter is using something called propaganda vehicles, or
putting up posters throughout a township criticizing excessive
fees or rigged elections.
Although they usually stay away from physical
confrontation, policy disseminators sometimes publicize
policies and laws in ways that cannot help but lead to
conflict. Two techniques, for example, that are sure to produce
official ire are distributing documents or holding so-called
10,000 person meetings near a government compound, something
they do quite often. These gatherings often turn into melees
when township or county officials intervene.
Publicizing documents often leads to repression, but it
sometimes works. By reading out or distributing central laws
and policies, activists expose unlawful actions, they shatter
information blockades, and they demonstrate both to officials
and to interested bystanders that it might be possible to
organize large-scale resistance to local misconduct.
The second variant of direct action is something that is
called ``demanding a dialog.'' Activists and their supporters
often, after collective petitioning or publicizing a policy
have failed, insist on face-to-face meetings with local
officials to urge immediate revocation of unlawful local
measures. Rightful resisters have used this tactic in Hengyang,
most notably to fight mounting school fees. Instead of simply
lodging a collective complaint, which would have been more
common in the past, a group of burden reduction representatives
may proceed directly to the school. The arrival of these
peasant heroes typically attracts a large crowd, not least
because the parents who invited them often encourage onlookers
to come to support them and to watch the drama unfold.
In one such incident in Hengyang, a lead activist requested
a face-to-face meeting with the head of a township middle
school in front of a large assembly of local residents. He
displayed documents issued by the city Education Bureau that
fixed fees at a certain level and told the schoolmaster item by
item how much more the students have been charged. The presence
of nearly 20 hardened activists, as well as over 100 bystanders
at this little school, led to a round of intense bargaining,
after which the schoolmaster agreed to return about 80 percent
of the charges.
So, publicizing policy aims to remind errant cadres that
they are vulnerable to rightful claims. Demanding a dialog is
directed at unresponsive targets who refuse to back down. For
these two kinds of direct action, negotiation and compromise
are still possible, even desired.
Cool bargaining and face-saving sessions become less
possible when protesters turn to the third variant of direct
action, something we call face-to-face defiance. Activists who
use face-to-face defiance confront local officials on the job,
they try to halt any illegal acts, and they loudly encourage
others to follow suit.
In Hengyang, for example, in 1998, one particularly feisty
rightful resister followed township tax collectors wherever
they went. With two other burden reduction representatives at
his side, he brandished the copy of a central directive and
contested every effort to collect even a yuan too much. The tax
collectors dared not rebuff him in public, but when one of them
muttered an insult after he refused to get out of their way and
let them do their job, a scuffle broke out and hundreds of
villagers came to defend the fee resister, eventually pinning
the beleaguered tax man in his Jeep.
These three variants of directed action I have outlined
often appear together; sometimes they appear in sequence.
People may, for instance, popularize a policy first and then
move on to demand dialogs later, and then proceed to face-to-
face defiance. Whatever form it takes, direct action is a
significant break from mediated contention. Its appearance
leads local cadres and protesters themselves into uncharted
territory, especially when activists lose control of their
followers or officials panic.
It also opens up the possibility that protesters will
continue to escalate their tactics, perhaps toward violence,
while embracing broader and deeper claims, claims that are
general and ideological rather than concrete and specific,
claims that challenge the legitimacy of the local government
rather than the lawfulness of local decisions.
One of the questions you might have is, how new is all of
this? Mediated tactics have not gone away. In fact, they
continue to be used, while direct confrontational forms of
contention have also become more common.
Another question you might have is, how widespread is
direct action? At this point, we can only talk about one
county. But there are tantalizing signs of diffusion of these
tactics as protesters run into each other while engaging in
mediated forms of contention, be it in reception rooms, outside
letters and visits offices, petitioners' camps, and share
stories of their frustration with the older tactics and their
victories with the newer ones. Mobile telephones also enable
protest organizers in different counties to stay in touch, to
carry tales of inventive tactics far and wide.
Why have these tactics appeared just now? We point to four
factors. First, past defeats. For many longtime complainants,
the bitter truth is that protectors at higher levels are often
all talk and little action. Protesters who use mediated tactics
are commonly ignored, given the run-around, or harassed. Even
if they do get a favorable response from someone in power,
their antagonists at lower levels often ignore soft
instructions from above or delay endlessly in
implementing them. New tactics thus arise, first and foremost,
because mediators do not mediate. Failure leads to growing
frustration and encourages some protest organizers to find new
ways to further their goals. Second, despite their many
failures, mediated contention can generate resources and create
openings for direct contention. Activists, most notably, have
obtained copies of authoritative red-headed documents and laws
via mediated contention that confirm policy violations have
taken place. Some of these measures even authorize direct
action when central directives are ignored, such as the
agricultural law, which empowers villagers to reject illegal
fees.
Participants in mediated contention also sometimes obtain
oral or written assurances that those disseminating policies
are protected. While an official who scrawls on a letter of
complaint ``disseminating policies is protected by law'' may
mainly be seeking to get somebody out of their office,
resourceful activists often interpret this as evidence that a
meaningful gap exists between authorities at higher and lower
levels which they can exploit.
Technology has also facilitated direct action. Beyond tape
recorders, loudspeakers, and mobile broadcasting stations, cell
phones have become important for coordination in planning
rightful resistance, while photocopying and computerized
printing have played a large role in easing duplication of
central, provincial, and city regulations and lending a patina
of authenticity to documents that officials previously would
have claimed were bogus. All these technologies
enable rightful resistors to reach out to, and fire up, a mass
constituency in a way that is less critical when they were
simply lodging collective complaints, and depended largely on
elite allies rather than on agitated, disgruntled villagers.
Last, there is popular support. So long as rightful
resistors refrain from demanding excessive donations or
harassing free riders, tactical escalation usually generates
more community approval than disapproval. Unlike protests in
the West where the presence of a radical flank often works to
the benefit of moderate protesters, in China, ordinary
villagers often respect and admire people who engage in
dramatic acts of resistance. The beginning of direct action in
a village often sets in motion a sequence of events where wary
but hopeful spectators, and some new participants, are
delighted to see imperious, corrupt, and abusive local
officials get their comeuppance, and they even privately egg on
protest leaders to ratchet up the level of confrontation a
notch.
Let me just close with few words on who these activists
are. Although in many countries new tactics depend on the entry
of new protesters, our evidence suggests that tactical
escalation in China is mainly the handiwork of seasoned
complainants.
In Hengyang, for example, all 32 protest leaders on whom we
have information have been involved in collective action for at
least 8 years, and all of them employed mediated tactics before
moving on to direct action. Most of the innovators are
unusually assertive and self-confident characters who, for
example, enjoy telling anyone who would listen how much pride
they take in fighting wrongdoing. These diehards have
remarkably hard-charging personalities and their disenchantment
with mediated tactics only feeds their indignation, their
brinksmanship, and their dreams of grandeur, while enhancing
their commitment to find a way to do whatever it takes to
prevail.
I have a longer statement, but I will pass on it for now.
[The prepared statement of Mr. O'Brien appears in the
appendix.]
Mr. Foarde. We will come back to it in the question and
answer session. Thanks very much for your discipline, as well
as the very interesting ideas in the presentation. We will come
back to those ideas in the Q&A.
Next, I would like to recognize Professor Benjamin Liebman.
Ben is also the director of the Center for Chinese Legal
Studies at Columbia University. He earned his J.D. from Harvard
in 1998 and clerked for Justice David Souter on the U.S.
Supreme Court. His recent research has focused on the popular
use of the Chinese media and basic level legal institutions for
dispute resolution. His publications include ``Autonomy Through
Separation? Environmental Law and the Basic Law of Hong Kong,''
``Legal Aid and Public Interest Law in China,'' and ``Clean
Air, Clear Process? The Struggle Over Air Pollution in the
People's Republic of China,'' with our friend Bill Alford,
published in the Hastings Law Journal in 2001.
Ben, thanks very much for coming. Congratulations on being
a new father. I am glad you are getting a little bit of sleep,
which made it possible for you to participate in the roundtable
with us.
STATEMENT OF BENJAMIN L. LIEBMAN, ASSOCIATE PROFESSOR,
DIRECTOR, THE CENTER FOR CHINESE LEGAL STUDIES, COLUMBIA LAW
SCHOOL, NEW YORK, NY
Mr. Liebman. Thank you very much. Thank you for inviting me
to speak today. I would also like to thank the staff of the
Commission, and in particular Keith and Carl, with whose work I
am most familiar, for the high quality of their work to date.
I would like to address two specific aspects of access to
justice in China: the growth of legal aid programs, and the
role in rural areas of paraprofessional legal service workers
known as basic level legal workers.
The growth of legal aid and continued emphasis on the work
of basic level legal workers reflects a state policy of
steering disputes into the courts. These developments also
demonstrate both the significant progress over the past decade
in making the courts more accessible, and also some of the
continuing barriers to those seeking redress through law.
But the formal legal system is not the only or more
effective route available to citizens seeking redress in China.
Individuals also often pursue their claims by government
departments, letters and visits offices, the media, or through
the strategies that Professor O'Brien just described. Indeed,
one defining characteristic of the Chinese legal system is that
individuals with grievances often pursue their claims in
multiple forums concurrently.
So let me start with the recent development of legal aid. A
decade ago, China had only a tiny number of legal aid
institutions. These were generally university-based and funded
by Western foundations. Over the past decade, China has
embraced legal aid to a dramatic degree. There were virtually
no government supported legal aid centers in 1994. By the end
of 2002, China had more than 2,400 legal aid offices, the
overwhelming majority of which were state funded. The number of
cases legal aid centers handle has likewise risen considerably.
Official statistics state that legal aid lawyers handled some
180,000 cases in 2002, a 28 percent increase on the prior year.
Close to two-thirds of all these cases are civil cases, and
approximately one-third are criminal cases. A very, very small
percentage of cases are administrative cases.
A number of factors explain this rapid development.
Expanding legal aid helps to push disputes into the formal
legal system and, thus, keep them off the streets. Legal aid is
also consistent with the state policy of addressing income
inequalities and assisting those who have been left behind by
China's rapid development. Legal aid helps to constrain lawless
behavior at the local level and legal aid is perceived as an
important aspect of a modern legal system, something to which
China clearly aspires.
Despite the significant progress to date, however,
substantial problems remain. Clinics suffer from lack of
funding. Some legal aid centers employ full-time lawyers, but
many consist of reassigned Justice Bureau officials whose job
it is to assign cases to local law firms. Local authorities
also generally determine the cases that are deemed eligible for
state-backed legal aid. As a result, certain classes of cases--
in particular, administrative suits against local authorities,
and also sometimes claims by migrant workers as well--may be
explicitly or implicitly discouraged.
Critics complain that legal aid centers focus on ``easy''
cases, those that do not bring litigants into conflict with
local authorities or locally powerful enterprises or
institutions. In a criminal context, current laws mandate
provision of lawyers to only a very small range of defendants.
In most cases, the local legal aid center may provide a lawyer
if a defendant is poor, but they have significant discretion
over whether or not to do so.
Most of the development of legal aid, as I indicated, has
been state driven. Nevertheless, numerous quasi-independent
legal aid centers have also emerged, mostly linked to
universities, and some also linked to women's organizations.
Indeed, although official statistics focus on the development
of government legal aid centers, some of the most important
developments are happening in this quasi-independent sector. A
number of university-based centers are focusing on impact
litigation using cases, frequently class actions, to highlight
structural problems in the legal system and push for a change.
So, turning to basic level legal workers. The biggest
challenge facing those working to expand legal aid in China has
been that, until very recently, legal aid centers have been
overwhelmingly concentrated in cities. Although some centers in
cities do represent the rural poor and migrant workers, the
legal aid system has been inaccessible to many of those most in
need.
Yet China has a long established system for providing legal
services in rural areas. Beginning in the late 1980s, China
developed a network of paraprofessionals known as basic level
legal workers. Such workers are not lawyers, but have received
some legal training and are government licensed. There are
approximately 100,000 such workers in China today, only
somewhat fewer than the 130,000 registered lawyers. They
operate out of some 27,000 legal services offices, ten times
the total number of legal aid offices, and handle hundreds of
thousands of civil cases a year.
In contrast to workers at the state legal aid centers,
basic level legal workers are not state workers. They earn an
income based on the modest fees they charge for services.
Nevertheless, they are often considered to be engaged in
``legal aid'' and work closely with local justice bureaus,
assisting with mediation and legal education campaigns, as well
as providing legal advice in handling cases. Basic level legal
workers are permitted to represent parties in civil and
administrative cases. They are not allowed to represent
criminal defendants.
The status of basic level legal workers is in flux.
Originally designed to address legal needs in rural areas, many
such workers have moved into urban areas in order to earn
higher incomes. Lawyers are increasingly complaining of
competition from their lower cost counterparts, and Ministry of
Justice officials have indicated that basic level legal workers
will be gradually phased out, at least in urban areas. These
moves are understandable, as is the desire of China's lawyers
to have a monopoly.
The strong reaction of lawyers toward basic level legal
workers is noteworthy, in part, because it represents a rare
instance in which the Chinese bar has asserted its collective
self-interest. Yet China may also be moving too quickly toward
its goal of a legal model in which legal services are provided
by lawyers alone without sufficient consideration of the actual
situation on the ground.
China has rapidly and impressively expanded legal training
and the size of the bar, but the per capita number of lawyers
is modest by international standards, in particular in rural
areas, and the quality of training varies. Moreover, there is a
strong argument that lawyers, the overwhelming majority of whom
are based in urban areas, may not be best positioned to assist
in dispute resolution in rural areas. Another indication of the
strong demand for legal services in rural areas is the rising
number of barefoot lawyers, who generally are self-trained and
not licensed. These individuals assist fellow villagers in
navigating the formal legal system, from writing legal
documents to assisting them in court. The proliferation of
barefoot lawyers in recent years is a testament both to their
own ingenuity, and also to the success of state legal education
campaigns.
The demand for lawyers, basic level legal workers, and
barefoot lawyers, and the fact that many basic level legal
workers are able to make a living while also meeting the legal
needs of the rural poor, highlights the importance of market
forces in bringing a widening range of disputes into the
courts. China will not be able to meet the demand for legal
services by those unable to afford lawyers through legal aid
alone. China permits contingency fees in class actions, and
such mechanisms are already leading to a widening array of
cases being brought in the courts. The expansion of these and
other incentives to lawyers to represent the disadvantaged will
be as important as the development of legal aid.
In summary, the growth of legal aid and continuation of the
basic level legal worker system are playing important roles in
making justice more accessible in China. But the ability of
individuals to obtain redress will continue to depend as much
on the evolution of a range of institutions, including the
courts, the media, and government generally as it does on the
availability of legal representation.
For those of us in this country with an interest in China's
legal evolution, these developments have a number of
implications. First, such developments highlight the need for a
much greater understanding, both in China and in the United
States, of developments in rural areas. We need a far better
understanding of rural development if we are to play a
constructive role in assisting access to justice. This is why
the work by academics such as Professor O'Brien is so
important. Second, this is an area in which very modest
financial support can have a major effect. Most successful
legal aid centers in China have all succeeded with financial
support that is very modest when compared to overall
international spending on legal reform in China. Third, these
developments show the importance of the continued strengthening
of the public interest bar in China. In particular, we in the
United States should be doing much more to facilitate the
training of public interest lawyers in China. Fourth, we should
be encouraging our colleagues in China to look to a range of
precedents for legal reform, not just those from the United
States, or even only from Western or foreign countries. Fifth,
and finally, in assessing developments in China, we should not
underestimate the power of small changes. The single greatest
effect of increased attention to legal aid, and to law and
justice more generally, is likely to be the growing expectation
among ordinary Chinese that the legal system should protect
their interests.
Thank you.
[The prepared statement of Mr. Liebman appears in the
appendix.]
Mr. Foarde. Thank you, Ben, very much, for another set of
very interesting ideas.
I am going to let you both rest your voices for a minute
while I make an administrative announcement or two.
The roundtable series will take a hiatus in August, along
with just about everybody else in Washington. But in the
meantime, we will be working on more roundtables for the fall,
and into the year end holiday season.
September will be a busy month, and we will resume
roundtables that month. I do not have a date for you yet, but
let me encourage everyone to sign up for our newsletter and
automatic e-mailings on the website at www.cecc.gov. We very
likely will have a full hearing of the Commission on Thursday,
September 23. Again, more details will follow on that as we get
them and can get them out to you.
And the Commission's annual report, as it has in the last
couple of years, will come out in early October, so stay tuned
for that.
Let us go now to the question and answer session. We have a
good staff panel up here to pose questions and illuminate some
of the very interesting issues that you both raised. Let me
start out by asking Kevin O'Brien, probably two of the
incidents that are of most interest to our Commission members
are the Liaoyang labor protests of a couple of years ago and
the plight of the workers and leaders who are still
incarcerated. But we have also looked very closely, and most
recently in another roundtable similar to this one, at property
seizures in China, and particularly in the big cities, Beijing
and Shanghai, as a part of urban development related,
sometimes, to the Olympics. Are these types of movements
similar or dissimilar, and do they reflect some of the same
things that you articulated in your presentation?
Mr. O'Brien. They can be similar, though workers'
conditions are also quite different than peasants' conditions.
They are similar in one important respect, in that it has
long been a custom in China that leaders of collective action
pay the highest price and followers get off.
With the escalation that I focused on today, little has
changed. Leaders often end up in prison, but followers, the
people who are in the crowd, milling about, are actually more
likely to pay few consequences in this more disruptive direct
form of contention than in mediated contention, where they
would sign a petition and their name would be on a list for
everyone to see. This is one of the reasons that popular
support for radical, direct action is growing.
Protest leaders' psychology also comes into play. Rural
protest leaders are very proud people. They are also often very
ornery people. They say they are willing to suffer just like
the protest leaders in Liaoyang. Thus there are similarities
between leadership mass dynamics in protests in the countryside
and in the cities.
On property issues, the biggest issue probably in the
countryside now has to do with the appropriation of land for
industrial uses. This is often done by cadres who are skirting
the edges of what the law allows.
Quite often, villagers rise up against their local cadres
on grounds that the Land Law is not being paid attention to.
And here they are not losing apartments, but farmland that is
being sold off, particularly in peri-urban areas, for very high
prices. That is one of the issues that has lately produced much
direct action, much more than we saw as recently as 5 or 10
years ago.
Mr. Foarde. Interesting. Thank you.
Ben Liebman, I am interested in where the funding for legal
aid is coming from, aside from foreign sources, which I think
we are familiar with, but particularly at the local level in
China. Can you illuminate that a little bit?
Mr. Liebman. Sure. One of the problems, it is probably fair
to say, in a lot of cases it is not coming from anywhere. There
is not enough funding. There are some problems. But there is
Guangdong, in particular, which has really committed
significant funds to this, and I think has done an impressive
job in building up legal aid centers.
In most cases, the way legal aid centers work in China is
not having what we think of as a legal aid center with a team
of lawyers working on these cases, but it is having officials
whose job it is to then take the cases and assign them to local
law firms. Lawyers in China have mandatory pro bono obligations
that vary from city to city and location to location. So in
general, a legal aid center simply is the administrative arm
that vets the case to see whether the applicants are entitled
to legal aid, and then, with some modest support for fees
incurred in the case, delegates the case to a local law firm.
One of the big issues is: Who is going to pay for this? The
central government has sort of said, ``Well, local authorities
should pay for it.'' Local authorities say, ``How are we
supposed to pay for this? Where do we have the money? '' So
some of the better-off provinces have put in funds for this,
but in other areas it remains a big problem coming up with the
money. Therefore, they tend to rely on asking lawyers to help
out.
Mr. Foarde. Thank you. That is very useful.
Let me recognize my friend and colleague, Dave Dorman,
deputy staff director of the Commission, who represents Senator
Chuck Hagel, our Co-Chairman.
Dave.
Mr. Dorman. Well, first of all, thank you for coming today.
I had the opportunity to read your written statements over the
weekend, and with that experience behind me, I can say with
certainty that the issue we are addressing today is a very
complex, and very
important, one. It is important to the Commission's mandate and
important to our Commissioners. So, I would just like to say
again, thank you for coming today to share your experiences,
your wisdom, and your insights.
I have a question for both of you, based on your opening
statements.
Professor O'Brien, could you describe where the term
``rightful resistance'' originated? Where was the term coined?
Mr. O'Brien. It is a term that Lianjiang Li and I coined.
Mr. Dorman. Oh, I see. All right. That was an easy
question. As I listened to both of your testimonies, I wondered
whether or not there is some relationship between these two
phenomena: ``rightful resistance'' and the growth of legal aid
centers and barefoot legal aides. Could both of you comment on
whether you believe there is a relationship between these two
phenomena, specifically whether they are growing in unison, and
if so, is this happening because ``rightful resisters'' are
learning more about their rights from legal aid centers or
barefoot legal aides?
Mr. O'Brien. Yes, very much so. This is why I look forward
to reading Professor Liebman's work as soon as it is available,
because one of the big questions is: How do rightful resisters
learn about specific laws, policies, and government
commitments?
We must remember that in China the whole notion of policy,
law, or leadership commitment is very broad. A hook to hang
rightful resistance on could be nothing more than a speech by a
top official. It could be a People's Daily editorial. There are
many, many ways people learn about what sort of commitments the
leadership has made. Law is only one form that commitments
take.
But legal claims are turning out to be a particularly
powerful weapon for rightful resisters. In many areas one of
the key questions we have is, how do people find out about, for
example, very specific clauses in the family planning law that
came out a few years ago? Legal aid would be one important way.
Legal aid also offers cadres a way to find out about laws;
in particular which claims are truly rightful and which are
not. This is important because villages often make claims and
insist that the local leadership has to heed them, even when
the claims have no legal basis.
So in one village I worked in, a former cadre set up a
legal aid office to give advice to the local cadres--not the
populace--about which claims they had to pay attention to and
which they could safely ignore or suppress.
Beyond legal aid, television also brings word of official
discourses concerning citizenship, rights consciousness and
even the protection of human rights. Rightful resisters are
picking up the language of protest from many different sources
and legal aid is certainly one of them.
Mr. Liebman. Just to echo that, in two respects. First, as
Professor O'Brien just said, I think that people are more
conscious of their rights and they are speaking more in terms
of law and asserting those rights, and sometimes they assert
those rights through the mechanism that Professor O'Brien
described, sometimes they do it through legal aid, through the
courts.
Often they do both at the same time, and they will raise
their complaints in various ways. But I think there is rising
attention to rights and to rights that are protected by law
that gives rise to people being willing to have this taking
place.
The other thing is something I hinted at maybe in the
written version of my statement, which is to say that I think
one of the reasons the state is interested in having legal aid
is because they would like to have these claims addressed. It
is better to have them addressed through legal aid, through
formal channels, in some cases, than it is to have a hundred
villagers gathering around and surrounding the Party office and
raising complaints in that fashion.
So I think that part of this is also an actual attempt--and
I think it is not just about keeping these disputes off the
streets. I think it is a genuine attempt to sort of say,
``Look, there is a lot of egregious behavior going on at the
local level, and we, the central government, would also like to
see some of this addressed.'' Legal aid is one way of doing
that.
Mr. O'Brien. On that very point, rightful resistance is a
monitoring mechanism, just like village elections are. An
example I like to give is the logic that stands behind putting
a 1-800 number on the back of trucks. The owner of a trucking
company does not know if the truck driver is driving well or
not. The person who does is driving right behind the rig. What
the leadership is doing with village elections and permitting
rightful resistance is allowing ordinary people, who are most
exposed to official misconduct, to inform higher levels about
misbehavior so they can control the people who are misbehaving.
The central leadership has an interest in preventing their
local agents from driving people to rebellion, and they are
actively drawing in ordinary people through elections and
through the kind of mechanisms we are talking about today to
control officials are no longer held in line as directly as
they were during the Maoist era.
Mr. Dorman. Thank you.
Mr. Foarde. I would like to recognize, now, Susan
O'Sullivan, who represents our Commission member Lorne Craner,
who is Assistant Secretary of State for Democracy, Human
Rights, and Labor.
Susan, do you have a question?
Ms. O'Sullivan. Yes. Thanks. Thanks to both of the
panelists for their excellent presentations. I was struck by
one line in Professor Liebman's paper about how the United
States should be doing much more to facilitate the training of
public interest lawyers in China. As you know, my bureau is
programming a fair amount of money to do things like this. I
was wondering if you could expand on your thoughts about how we
might go about this and what sorts of programs would be most
helpful.
Mr. Liebman. Sure. Let me say, to start off, I think one of
the great challenges here, often, is that some of the most
effective lawyers are not the people we ordinarily run into in
the course of our interactions with China. They are not always
going to be the people who have gone to the top law schools or
speak English. So one of the challenges is, how do you reach
out to the people at the local level in doing that? I guess,
just to highlight a couple of different things.
I think there have been some in-country--meaning in China--
training programs where lawyers have been brought together from
around the country to talk about it. But I actually think that
one of the most effective things we have seen done, is really
trying to bring public interest lawyers from China together
with public interest advocates elsewhere. The Ford Foundation
has done a very good job of boosting clinical legal education.
Carl Minzner was working in that capacity before coming here.
I will just cite one other thing that has been done, I
think very successfully, in the Public Interest Law Initiative
[PILI] at Columbia, which is actually a program originally
focused on training public interest lawyers from Central Asia
and Eastern Europe, and has actually now been bringing in some
Chinese public interest lawyers who have some English language
ability and working through their program, placing them in
public interest positions in New York, and then also taking
them to Budapest in the summer to work with public interest
lawyers in other countries. I think that is something we should
not underestimate--giving people an opportunity to learn about
other countries that are also newly experimenting with legal
aid.
So I think both in-country and external training is
valuable, but I think the hardest thing we struggle with is
really ways to take people and give them, in a sense, on-the-
job training, given the language barriers, et cetera. But I
think increasingly we are seeing people from China who have
language ability to come over and gain some experience here
working with public interest organizations.
I think something else we have to consider also is taking
people and bringing them for longer durations if someone does
not quite have the English language ability to come here, to
bring them first to give them some training and then give them
time.
But I think much more than having a seminar series,
actually giving people on-the-ground training, is probably the
most effective thing we can do.
Mr. Foarde. Also representing Assistant Secretary of State
Craner is our colleague Rana Siu.
Rana, please, over to you for questions.
Ms. Siu. Yes. Thanks, John. Thank you to the panelists for
your presentations.
My question is about the role that the media can play, and
does play, in terms of building an understanding of the legal
system and legal rights. Do you see that role expanding? Do you
think journalists in China today have a good understanding of
the legal system?
Mr. Liebman. It is a complex question because there are a
lot of different types of journalists. So, let me take the
second half first. There are some journalists who are very
sophisticated in understanding the legal system, and certainly
a number of journalists in China are legally trained and
specialize in legal reporting. Whether the greater number of
journalists, especially at the new tabloids and commercialized
media, have a sophisticated understanding, I am not so sure.
There are also efforts now to really boost legal knowledge
among journalists. So I think that there is increasing
sophistication among journalists, but it does vary a lot.
One of the complaints you hear a lot from judges and
lawyers is that journalists will write articles that are very
critical of cases, for example, without having a full
understanding of the law, and will appeal to the popular
morality instead of actual legal standards. There is this
raging battle, in a sense. Raging battle may be overstating it,
but there is a lot of tension right now between the courts and
the media in China with, in effect, the courts saying the media
are too influential, and the media saying we are just doing our
job of making sure courts follow the law.
On the first question--and I can expand on that if you
would like--of legal education, I think the media has had a
tremendous effect in terms of raising both awareness of law,
and more generally awareness of individual rights. It is
surprising in some respects, but in fact all these, what we
call, propaganda campaigns about legal education had a big
effect.
When I talk about ``barefoot lawyers,'' these really are
villagers who have learned about law and legal procedures. They
have learned about things like the Administrative Litigation
Law, sometimes by reading about things in the papers, but often
just, for example, by watching the daily legal show, ``Legal
Report,'' which is incredibly influential in the countryside.
So, I do think this attention to law--and some of it gets
manifested in sensationalism, but a lot of it is also
commentary, and even just reporting on new laws does have a
very big effect and raises awareness of it, but also encourages
people to use law more to protect themselves.
Mr. O'Brien. For rightful resisters, journalists are a very
important source of information, as is the media more broadly.
First, there is informing ordinary people of cases that have
been decided. Little homilies are published in many outlets, on
television and elsewhere, and villagers often take that as a
signal that a certain issue is ripe to be contested.
A topic like land would be a good example. There has been a
lot of discussion of land cases recently. I am quite sure that
after a land case is discussed in Farmers' Daily, or in a
letter to an editor somewhere, in the next few months there are
many more cases on precisely that topic. The media are a
signaling mechanism in that respect.
Many rightful resisters in their often unsuccessful search
for elite allies try to lure, or even hire, journalists to come
to their village to look into their case and to get it resolved
via publicity.
Of course, this strategy does not always work, but it is
important and it does suggest a mechanism of redress outside
the formal legal system.
This is one advantage of the fact that the Chinese system
is not highly institutionalized. If you have a complaint in the
United States, you have a relatively limited number of places
to go. In China, complainants go to anyone who is more powerful
than the person they are attacking. A journalist is often that
person. So are local Anti-Corruption Offices, People's
Congresses, or anywhere else where somebody can lean on your
antagonist.
It is worth noting that this is not the rule of law. This
is using law as a weapon to produce substantively just outcomes
through rather irregular procedures. Journalists and other
elite backers are a mechanism for precisely this.
Mr. Liebman. Can I just add to that? When I talk about, for
example, impact litigation in China, the most effective legal
aid lawyers in China are always those with the best contacts in
the media, and have friends in the media who can help them.
When we talk about impact litigation in China we are not
talking about impact litigation and the way we think about it
in this country where you have a legal precedent that then has
a binding effect on a lot of other cases. You are really
talking about a case that has impact because the media picks up
on it, covers it widely, and it is that action that actually
leads to changes and leads to a broader change and to laws
sometimes being revised, or simply problems being addressed
through policy mechanisms rather than through a case being laid
down in law and taken as precedent.
Mr. O'Brien. It stiffens the resolve of people using the
law, and it frightens the people who are misusing the law.
Mr. Foarde. Fascinating. Thank you.
I would like to recognize Susan Roosevelt Weld, the general
counsel of the Commission.
Susan.
Ms. Weld. I was wondering, just to keep on media for a
moment, are there cases in which reporting some of these
incidents of rightful resistance are treated as state secrets?
Is one always allowed to report these kinds of incidents, both
rural and urban?
Mr. O'Brien. Some of the more interesting documents I have
come across are often long reports, 40 or 50 pages, laying out
a case in detail. Then, in each iteration of the document,
comments from ranking leaders will be attached, saying such
things as: ``This is very interesting. Pass it on to such and
such an office. It may even be worth publishing in a
newspaper.'' Often, however, as a report moves toward open
publication, many of the most interesting details are removed
and it is drastically shortened.
Mr. Liebman. Can I just add one point on that? I think the
language you used may suggest a formality that is way beyond
what actually exists on the ground, which is to say that things
are not classified necessarily as state secrets. That is, the
system by which articles, for example, are blocked or allowed
to publish is much less formal than that, so that it is not a
question of something being actually classified as a state
secret and then the newspaper being informed they cannot
publish on it. It is often the case of someone picking up the
phone and calling a friend who happens to work over at either
the local newspaper or local propaganda department saying,
maybe it would be better if this did not get published, and it
goes through those channels. So I think most things that are
blocked from publication in China are blocked informally
through phone calls or someone dropping by the office that way.
So it is not as if a formal classification happens.
Often, things are not necessarily what we would think of as
politically sensitive. It is sensitive to an individual, the
person does not want it published. It is not because it is
touching on some real political issue.
Ms. Weld. I am interested in that answer, because
sometimes, when some information that has been given to the
press or given to people outside of China is labeled a state
secret, it does not seem to one, as an outsider, to be really
the kind of thing that you would classify for state security
reasons. It seems to be more a feeling that the information
causes humiliation, or that somebody would be embarrassed. Is
that right? I do not know. What I am thinking of, of course, is
the case of the uncertified lawyer in Shanghai who was doing
cases on behalf of the evictees in the ``Dongba East'' housing
development.
Mr. Liebman. Certainly. I think that is right. One of the
problems, of course, is that the standard is incredibly
ambiguous and ill-defined. This has been widely discussed in
China. The Chinese scholars have been arguing that the standard
on what is a state secret, what is subversion, needs to be
clarified. I think in a lot of these cases, also, it is a post
facto determination when an issue comes up, then something is
labeled as having been a state secret and the person is then
charged with violating state secrets.
But one of the problems here is that the standard is very
unclear and the Ministry of State Security generally has the
authority to determine whether or not something is a state
secret. So the problem comes from that side, is that the law
does not gives us a lot of clarification in advance as to what
might be determined as a state secret.
Mr. O'Brien. Just one more point on this: commercialization
of the press has also helped bring more information out.
I think particularly of the magazine ``Democracy and Legal
System,'' which used to be a relatively staid political-legal
journal. In the last 10 or 15 years it has turned into a kind
of scandal sheet that produces stories about movie actors'
foibles and the such. That is what most people want to read, in
China or anywhere. But they are also publishing stories about
rightful resistance, and some of the juicier ones can help sell
copy, too.
Ms. Weld. Thanks.
Mr. Foarde. Let me recognize Carl Minzner, a senior counsel
who is responsible for organizing today's roundtable.
Carl.
Mr. Minzner. Thank you both for coming today. I really
appreciate the opportunity to hear both of you and to have both
of you together.
Let me go back to the point that Susan O'Sullivan raised,
which I thought was particularly interesting, which is the role
of outside U.S. NGOs and organizations in perhaps training or
working with Chinese public interest lawyers, and particularly
the point that Professor Liebman mentioned about training that
might be provided in the United States.
Let me just question you a little bit further about
training and the level that we are talking about here. Could it
be effectively provided outside China or would it be better to
be doing in-country training?
Then for Professor O'Brien, you talked in particular about
the leaders that you were meeting who were the activists, the
hard-core activists who were running some of these protests.
What would be useful training? If there were going to be
training for these types of people, what is it that they need
or could use? Would it be training in law? Would it be training
in tactics? I would just ask you to talk about things that you
might imagine that would be useful in that context.
Mr. Liebman. I think it is a very good question. I
certainly did not mean to suggest in my response to the prior
question that we were advocating taking people from this local
level and just sort of putting them down in New York or
Budapest. It is obviously not a model that is going to work.
I think what you are hinting at is a very important point,
which is that I think also a lot can be done to facilitate more
discussion within China, so you have also some more
sophisticated public interest lawyers in China, some who have
been trained outside, some of whom have had a lot of
interaction with the west. I also think one thing we can do is
give people elsewhere in China the opportunity to learn from
them.
One of the great challenges, as I indicated, is there have
been some very successful legal aid centers based at
universities. One of the challenges has been, how do you
replicate this model without, say, the Ford Foundation or EU
money, or other international support?
The most successful ones have almost universally had
international support. So the great challenge is, can we
actually encourage the development of these institutions
elsewhere without that foreign money there? I think one thing
you can do, is also encourage lawyers and elsewhere to come and
learn from more successful centers in China.
But the other thing I would like to emphasize, and I
mentioned this in my remarks, I think also we need to consider
the possibility that simply training more lawyers and sending
them out there may not be, especially when you are talking
about the local level and especially in rural areas, always be
the most effective mechanism because you need people from that
area. You need people who understand how things work in that
village, in that township to make things work. But I think
there is a lot of learning that can be done in China from other
Chinese public interest lawyers.
Mr. O'Brien. Addressing the first question first, Professor
Stanley Lubman of the University of California, Berkeley, has
brought over some Chinese under the auspices of the Asia
Foundation to study administrative law in practice. They went
to Sacramento and elsewhere, and from his reports, learned a
lot about the nuts and bolt of administrative law in the United
States. In fact, he told me just a couple of days ago that
these judges and legal scholars are now starting training
programs in China and feel there were large payoffs from their
trip to the United States.
It's harder to imagine the United States actively
supporting rightful resisters, since they skirt so close to
unlawful action and are vigorously exploring the limits of the
permissible and the gap between what the Center offers and
local officials deliver.
I expect the most the United States can do is to continue
to support China's program to institute the rule of law. This
indirectly provides resources to villagers on the ground who
are testing what is allowed and what is not, who are working
different levels of government against each other.
Rightful resisters, we must remember, are people who work
within the system. They are not revolutionaries but people who
are looking for somebody influential somewhere who has a stake
in having what they desire happen. I think the best the United
States can probably do is to stand behind rule of law and not
be too disappointed when it is not fully implemented. There are
people on the ground in China working this very territory.
Mr. Foarde. Very useful. Thank you.
I would like to recognize our colleague, Keith Hand, who is
a senior counsel on the Commission staff.
Keith.
Mr. Hand. Thanks, John.
I join my colleagues in thanking you both very much for
your statements.
Professor Liebman, at several points in your talk you
referenced the rising expectation among Chinese citizens that
the legal system can be used to redress their grievances. Yet
in our work here on the Commission and in other roundtables, we
often hear about rampant corruption in the judiciary, the kinds
of access problems you alluded to at several points in your
talk, an inability to enforce judgments, and all kinds of
operational problems.
I wonder if, in your opinion, the expectations of Chinese
citizens are growing faster the capacity of the legal system to
address these kinds of problems. Do you see a risk that the
concept of rule of law could be somehow de-legitimized before
it really has a chance to take root?
Mr. Liebman. That is a very interesting question. I think
it is one also that people in China, academics in China, are
thinking very seriously about. People certainly talk about
this, and do you want to create expectations that then are met
and lead to people not having confidence in law? Certainly this
comes up also in the media, where arguments are made sometimes
against critical
reporting. Well, are you going to completely disillusion that
the courts will be of use.
So I think the risk is probably there, but I also think
that the trend is positive in a sense. I think that there
certainly are these enormous problems in the courts, for
example, but I also think that we are now seeing within the
court hierarchy much more attention to these problems and
attempts to address them.
So I think one of the things that is promising is the sense
that the things you talked about in terms of problems,
corruption, enforcement of judgments, these are not things that
the courts, for example, think are good to have around. They
are working to get rid of them.
So I think the risk is there, but I would actually say that
in some way the greater problem right now is not so much that
people are going to become disillusioned, there is also a big
problem, of course, that we cannot handle the volume of
complaints. They do not have the mechanisms there to deal with
some of this.
And by mechanisms, I mean manpower. They do not have enough
people, there are too many complaints, and also they still lack
sophisticated legal knowledge to handle cases, especially the
increasingly complex cases being brought in. I think that is as
great a challenge as anything. So in some ways, I think the
risk is there.
But I also think that the trend is perhaps a little bit
positive and perhaps I think maybe they can actually do enough
to address these problems so they do not fundamentally
undermine confidence in the courts.
Mr. O'Brien. We see a lot of disillusionment in the
countryside as people lose faith in higher and higher levels
and find out that allies are not available to help them out.
We have also seen other kinds of disillusionment,
particularly on the issue of limiting corruption. Some
villagers are actually calling for the return of Maoist-style
political campaigns against corrupt cadres because the rule of
law is so ineffective in handling them. They said that the only
way to deal with malfeasant officials is to struggle against
them.
I do not know if they were serious or if this was based on
a rose-tinted view of the past, but it does reflect a high
level of cynicism and disappointment in what the law can do. I
have to admit, as I've read similar articles for more than a
decade by legal reformers about how the rule of law is going to
clean up pervasive corruption, they've gradually lost their
persuasiveness, even to me.
Mr. Foarde. Hugely frustrating.
Let me recognize our colleague, William Farris, who is our
senior specialist on the Internet, and also for commercial rule
of law, and follows freedom of expression issues for us.
William.
Mr. Farris. Thank you.
It seems like a lot of the kind of resistance you are
talking about is receiving official or semi-official tolerance,
if not encouragement. I am wondering if either of you could
comment on, to what heights this kind of encouragement goes.
What topics are off limits when it comes to this kind of
resistance, extra-judicial resistance? To what level can people
not go above in terms of resisting mandates from the
government?
Mr. O'Brien. Until the passage of the family planning law,
birth control would have been the archetypal example. Any
policy in which the center is not on villagers' side is
something, by definition, not amenable to rightful resistance,
because protesters will immediately be accused of being
counter-revolutionary, anti-party, anti-government, and
officials at all levels will agree that repression is called
for.
Violence is another example. Analytically, rightful
resistance stops short of violence. Of course, in practice that
is not always the case. Aggrieved villagers often go beyond
rightful resistance.
Household registration reform is another difficult issue
because the center has been rather dodgy about where it stands
on, for example, rights of migrant workers.
Rightful resistance depends on there being a promise that
protesters have some reason to think someone in officialdom
takes them seriously. So calling for greater attention to the
Constitution or the end of one-party rule is not open to
rightful resistance because state officials will be united in
opposition. Protesters will not find a divided state that they
can work against itself.
Mr. Liebman. I would just add that the same is also true in
the litigation context, in the formal context. That is, people
who are effective at bringing these cases and get widespread
attention or push for change are doing it because they are
pursuing policy goals that are consistent with state policy
goals, women's rights, environment, poverty alleviation,
protecting the elderly, protecting children, things like that.
That is where people have been the most
effective in bringing these claims, for the same reasons,
exactly, that litigators, public interest advocates, are very
careful to choose policy topics that are consistent with
central policy goals.
Mr. Farris. Do you see any sort of movement in the area of
freedom of expression? The right to publish in China is very
tightly restricted pursuant to some very clear and specific
laws. So under a rule of law system, people in China do not
have any kind of right to engage in free press or publishing.
Do you see any interest in the Chinese populace with
addressing this as a problem that they see that needs to be
resolved?
Mr. Liebman. I think it is very hard to answer the question
of Chinese popular views. But I guess there are two ways to
respond to this. One, is to say I think we are seeing that the
power of commercialization of the media has certainly brought a
wider range of topics into public discourse and it gives the
media an incentive because they have an incentive to produce
racy headlines, to break stories. It gives the media incentive
to push the boundaries of the political controls that exist.
There is no question that the media are more willing to take
risks than they were in the pre-commercialized days. So, that
is one development we are seeing.
The other area--and I think the jury is still out on this
one--is that the Internet is giving voice to more and more
complaints from a certain section of the population. Again,
villagers are not, in large numbers, going online and raising
their complaints, but for that subsection of society that is
online, we are seeing more and more room for people to raise
issues in chat rooms. We are also seeing, in the last 6 months,
I would say, renewed focus from central authorities as to
exactly what limits should be imposed on Internet discussion.
Mr. O'Brien. In the countryside, I have not heard much
about freedom of expression, though access to information is
very important to rightful resisters. Aggrieved people benefit
when there is more information around and they have ways of
getting that information, be it through mobile phones,
photocopying, computerized printing, and so on.
The fact that there are photocopying shops in almost every
county town, even in most townships, makes a big difference
because cadres are now hard pressed to claim that a policy
document they have been presented is a fake.
Recently, there has been even greater attention to freedom
of association and freedom of organization. The latter, in
particular, has always been a ``forbidden zone,'' and
increasingly we are seeing examples where there is a high level
of organization in formulating collective letters of complaint
and village leaders from different areas who band together.
The extent to which informal organization is repressed is a
very salient issue for ordinary people who are weighing the
costs and benefits of ratcheting up the level of confrontation
and trying to
decide whether they can get away with direct forms of rightful
resistance.
Mr. Foarde. Let me pick up the questioning now and raise,
again, the issue of corruption, which is an issue of very great
concern to our whole Commission, and something that we look at
very carefully.
One of the ideas that we keep discussing at the staff level
is whether there is any benefit to the PRC in picking up the
model of Hong Kong's Independent Commission on Corruption
[ICOC]. Do either of you have a view whether that model might
work in some way in mainland China in the way that it has
worked in Hong Kong?
Mr. Liebman. It is a model that is talked about in China as
well, again, but it is a hard model to replicate because the
question is, could you create, in a sense, an anti-corruption
body that does not fall within the Party hierarchy?
I think the great challenge in China, and there often are
discussions and comparisons made between the Central Discipline
Commission of the Party and the ICOC in Hong Kong. I guess I am
a little bit skeptical of how that could be done. There clearly
needs to be greater powers to fight corruption. The question
is, how would you sort of remove it, not just from government,
but also from party oversight? I think it is a very big
challenge remaining.
As you well know, the procuracies have set up these anti-
corruption offices at most levels of the party state that
investigate corruption and often work with the Discipline
Commissions. But it is still being done from one level up
looking down at the next level. It is not being done completely
autonomously. So I guess I think it is a model worth
discussing. I guess I am not sure how easy it is going to be to
put into place in China.
Mr. O'Brien. I only know it from the bottom up. I would say
there is a certain level of tolerated corruption, at least in
the villages and townships, not the least because it is a very
hard job to be a village cadre.
Local cadres are subject to all sorts of incompatible
demands from above and below: carry out the birth control
policy, but do not use coercion; conduct fair village elections
but make sure that only ``reliable'' people win. In some
places, it has actually become hard to recruit people into the
Party. There are lots of villages where nobody has been
recruited into the Party for years.
Some cadres, particularly in poorer areas, are deciding
they don't want to do the job any longer. This, in one sense,
has increased the power of village cadres to tell higher levels
that they had better turn their eyes away when they, for
example, make off with collective property, because if not, we
are going to quit. Some villages have also been turned over to
so-called local bullies. And in places where this has caused
predictable problems it is easy for higher levels to decide
that it is better to allow the incumbents to put their hands in
the till a bit.
Mr. Foarde. Interesting.
Let me ask one more question of Ben Liebman having to do
with what the United States could do in the way of assistance.
One of the things that you talked about was strengthening
the public interest bar and advocating more training that we
might contribute to, financially or otherwise. Are there other
things that we could do to strengthen the public interest bar
besides training?
Mr. Liebman. I certainly think not just training, but
simply supporting some of these centers. I mentioned a few
minutes ago, we have had a number of very successful centers,
Beijing University, Wuhan, Chinese University of Law and
Politics, Tsinghua, these very good centers. The problem has
been, how do you replicate this model without funding? So,
direct support also of some of these centers, especially the
ones based at universities, can be very successful. I have
actually seen some of the ones that have been issue-specific--
environmental clinic, women's rights clinics--that have been
very successful models. It does not cost a lot of money to
support a legal aid center for a year, two, or five.
I think actually expanding that, and also expanding it away
from the major cities, is very important. So I think that there
are exceptions. The Asia Foundation has done a very good job of
funding some legal aid work outside the major cities.
I actually think one of the problems we have seen is that a
lot of the foreign aid that has gone into this area, especially
in the last years, has really gone into the major cities. I
think we should be thinking also about, can we help fund legal
aid programs more in the interior, perhaps not at famous
universities, some of the places that train lawyers elsewhere.
I mean, there are legal aid clinics in a lot of these places,
but they have not gotten as much attention from outside of
China.
Mr. O'Brien. There are legal aid offices in some townships
and counties. They are often very small, but there is something
of an infrastructure to work with.
Mr. Foarde. Useful. Thank you.
Let me pass the questioning now back to Dave Dorman.
David.
Mr. Dorman. Professor O'Brien, we have had Murray Scot
Tanner testify in front of us as well and he has written
recently on what appears to be a dramatic escalation of rural
protests in the 1990s.
If you don't mind using your crystal ball for a second,
with what you have written on this subject and with what Dr.
Tanner has written, where do you see this all leading three,
four, five years from now?
Will ``rightful resistance'' lead to a successful
resolution of key issues, or is it a reflection of more serious
problems on the horizon? How does this all mix together, and
where does it all lead?
Mr. O'Brien. Rightful resisters are escalating because more
moderate tactics often fail. The next step is to move toward
even more direct confrontation, even more defiance, and
ultimately violence and conventional kinds of protests of the
sort that Murray Scot Tanner examines. That is, indeed, quite
possible. What we have seen is a declining level of trust in
higher levels of government. There used to be a saying in the
countryside that ``the center is our benefactor, the provinces
are our relative, the county is a good person, the township is
bad, and the village is evil.''
Now the saying is, ``there are clear skies at the center,
clouds are forming in the province, it is raining in the
county, it's pouring in the township, and we're being drowned
in the village.'' Note: the province used to be our relative.
Now, clouds are forming there. Rightful resisters are losing
faith in the middle levels, and it's quite possible that the
Center will be next. At that point, it will become more
conventional society-versus-state resistance. There ability to
work the system disappears if it is perceived that one's
problems originate right at the top. There are no allies to be
found and it truly become us against them.
That is why the study of outcomes of rightful resistance is
so important. How many people are succeeding? Is it
legitimating the system? Ultimately, rightful resistance should
convince people the system works. But if it does not succeed
often enough, presumably these people will either give up and
become passive and cynical, ratchet up their tactics further,
or move on to true anti-state violence. Maybe they will go
after the birth control policy or taxes. Not just arbitrary and
unlawful taxes, but even lawful taxes that are perceived to be
too high.
Mr. Dorman. Thank you.
Professor Liebman, you mentioned quasi-independent legal
aid centers. Could you tell us more about what that means? Is
that in risk of being closed, less effective at what they do,
or just operating outside of what is necessary to give people
what they need?
Mr. Liebman. The reason I used this term--some people call
them GONGOs, government NGOs, or whatever--quasi-independent,
is for a couple of different reasons. What I mean here, is they
are not under the direct supervision of the Justice Bureau.
Most of the legal aid infrastructure in China basically is
under the Ministry of Justice, and then the provincial Justice
Bureaus, et cetera. When I talk about government in that way,
that is what I mean. These tend to be university-based,
sometimes women's associations, occasionally trade unions
working on workers' rights, but mainly universities and women's
organizations. The reason I say independent, is that they do
not answer to the Justice Bureau.
One of the things actually that was quite encouraging when
the 2002 legal aid regulations came out, is that there had been
a lot of concern that the Ministry of Justice was going to say,
basically, all legal aid has to be done through us. In fact,
they basically said that the state encourages ``social
organizations to develop legal aid.'' So, they explicitly
authorized non-Justice Bureau legal aid centers.
I say ``quasi-independent'' because, although they are not
directly under the Ministry of Justice hierarchy and they are
not subject to supervision day to day from them, there
certainly are limits and they have to be careful. They are also
a type of state entity. Even the ones at the university--the
university is still a state entity.
So, they are not completely without any state links at all,
and they generally operate autonomously, but they do have to be
careful. Part of why they are successful, the ones that are
successful, is they know how to negotiate that with what is
permissible.
Mr. Dorman. Thank you.
Mr. Foarde. Let me again recognize Susan O'Sullivan for a
question.
Ms. O'Sullivan. No questions.
Mr. Foarde. Rana, do you have another question?
Ms. Siu. Thank you.
I have a question about barefoot lawyers. I know you said
that they are self-trained. Do you think that they could become
effective change agents? Is this a group that we should be
focusing on in terms of programming?
Mr. Liebman. I think the answer is, I do not know, because
there is still important work to be done in understanding what
they are doing. It is really only in the last three or 4 years
that there has started to be some attention to these people,
both in the western media a little bit, but mainly in the
Chinese media.
There are some interesting similarities to other people
that Professor O'Brien is talking about. These are sort of
villagers who have day jobs in the village or they are working
and they usually have a little more education than other people
in the village, but they are basically people who have learned
a bit about law and they start going out and trying to help.
They get known as being the person in the village who knows how
the legal system works.
There are also interesting historical precedents, the
tradition of litigation tricksters, the sungun in Imperial
China. But they are the people who know how to work the system
and people go to them and ask them for help, and these people
start being resources for people who have cases.
It is interesting. I have heard about cases in which
barefoot lawyers, for example, get paid a certain amount to
handle all legal matters for a family for a year. It is
interesting, both because it suggests a high level of
expertise, and it is also technically illegal. They are not
actually supposed to charge fees. The lawyer's law says you
cannot charge fees unless you are a lawyer, and these people
sort of are skirting the edges of that.
So I think it might be hard to identify these people as a
class to be trained, but I do think that the basic level legal
workers who are a little bit more trained and a little bit more
sophisticated are something that is worth thinking about,
whether there are ways to think about how we might strengthen
training paraprofessionals in China as a way of meeting the
needs in rural areas. I think that is a very important area.
Mr. O'Brien. Professor Liebman is exactly right. Many
rightful resisters, after winning, go back home and become
resources in their village. Because they succeeded, other
aggrieved people come to them for both legal advice and
suggestions about engaging in collective action.
Many rightful resisters do have a fair amount of legal
knowledge and some provide informal legal advice to all comers.
But the most important thing is that they won once. Many of
these people have no formal legal training, but they do have
experience and can be quite skillful in presenting popular
claims in an effective way.
This will even go out in a press story about an
administrative litigation case that went well. I have to
imagine that is encouraging more of these sorts of people to go
back and do this, at least on the side.
Ms. Siu. It sounds like barefoot lawyers can be
entrepreneurs just as much as they might be activists.
Mr. Liebman. I think that is right. I think that is true of
lawyers and basic level legal workers as well. A lot of this is
about people trying to work the system because they are
pursuing certain goals, but some of those goals are clearly
their financial interest.
In fact, some of these paraprofessionals can make quite
good incomes as well. But I think that is right. I think it is
a side business often where they can make a little bit of
money, or not officially make money, but be paid in kind and
other ways. I think that is right.
I also do think there is some underlying desire to get
results. I actually think that what you are hinting at is an
important trend we are seeing. It is important also to think
about ways in which more incentives can be given to people to
pursue these claims and get these cases brought into the
courts, and to get skilled people who understand how to work
the system, bringing more of these cases, is probably a
positive thing.
Mr. O'Brien. There is another relevant issue, too--raising
money. It is not just an issue of getting paid oneself.
Rightful resisters need to raise money to carry out collective
action, to go to cities and pursue their claims. So, this is
one reason that popular support in the village, from my
viewpoint, is becoming more and more important.
Mr. Foarde. Interesting.
Let us go on to Susan Weld for another question.
Susan.
Ms. Weld. Thanks a lot.
I wanted to just go back to that. I think it was Ben who
said that there might be other models for improving legal
assistance in China rather than the U.S. model. Do you have
something in particular in mind as to which nation, and what
model would be useful?
Mr. Liebman. Well, I am really suggesting that China look
to a range of models, including its own. One of the things I am
suggesting is that I think this race to get rid of
paraprofessionals and really embrace lawyers alone as the only
people who can bring these cases, is a mistake.
If you think about where China is, 130,000 lawyers, the
numbers are not that different per capita from places like
Japan and Korea. But, in fact, if you go to the rural areas,
there are no lawyers. Government statistics say that something
like 10 percent of counties in China, 300-some-odd counties,
have zero lawyers in them.
So if you create a system in which only lawyers can
represent people in court, or only lawyers can bring these
types of cases, the lawyers are not there to do these cases so
you may actually in some ways cause harm to the system. I think
the Ministry of Justice may actually be moving too quickly to
have lawyers only bringing these cases. One of the things I am
suggesting is looking at other systems that rely on
paraprofessionals, especially other developing countries that
have relied on paraprofessionals to bring these claims, and to
not rely so heavily on lawyers.
Mr. O'Brien. Local protectionism is also of importance
here. For some of the administrative litigation cases we have
examined in the countryside, when litigants bring in lawyers
from another county, local officials denounce these attorneys
as outside agitators who are coming in to stir up trouble.
Local paraprofessionals from the village are not subject to
these sorts of charges.
Mr. Liebman. It is incredibly important. If you take
someone from the city who goes down there, they really do not
have the ability to work through these claims.
I do not claim to be an expert on these other models, but
if you look at other developing countries--Brazil, the
Philippines, Southeast Asia, South Africa--there are other
countries out there that have systems that allow
paraprofessionals to play a wider role in the system, as does
the United States, the United Kingdom, or many other western
countries.
Mr. O'Brien. The legal claim is not the only thing.
Rightful resisters need a good legal claim. That is their ante.
That gets them a seat at the table. But they also need
political resources as well. Rightful resisters are very
skilled rabble-rousers and organizers. They have those
resources and that is why those who succeed have gotten as far
as they have, and that is why they have not given up.
Ms. Weld. This may be slightly off the wall, and perhaps
more of Kevin's bailiwick. One hears so much and reads so much
about growing mass participation in religion in the
countryside. I wonder if those sorts of organizations play into
any of the forms of rightful resistance. I mean, do those kinds
of gatherings have any political function?
Mr. O'Brien. Religion, you said?
Ms. Weld. Religion. Yes.
Mr. O'Brien. I've not seen much, but this may just be an
artifact of where we happen to be working.
Ms. Weld. I would not suppose that the religious claims
would be raised, but that an organization that might have
formed around religious practices or beliefs could be a
vehicle----
Mr. O'Brien. I have not seen it in the places I work. One
of the next questions to consider is what are the grounds on
which rightful resisters mobilize? We are not talking about a
pluralist system where it is legitimate to organize around
interests for any reason. Banding together with fellow
believers may be difficult in the wake of Falun Gong, but there
are, of course, other religious organizations that are at least
tolerated by the state, and I would think that some of these
would provide a way to mobilize people with similar grievances.
Ms. Weld. Right.
Mr. O'Brien. But to take a religious organization and use
it on other grounds, I would think that is Collective Action
101.
Mr. Foarde. Let us go on to Carl Minzner for another round
of questions.
Carl.
Mr. Minzner. Let me just follow up on that last question
with Professor O'Brien. You were talking about 20 or 30
hardened activists showing up at a school's doorstep. There
must be some sort of organizational strength that it is coming
from.
What is generating the organization that allows these 20 or
30 people to show up? If it is not a religious organization,
where do they come together? What brings them together in that
organizational format? That would be the first question.
The second question is, where, do they get their skills
from? Is it a case of a particular county having experienced
successful protests, drawing in people who come to that county
to learn skills, and then having them go back to their home
counties to engage in this kind of resistance themselves, or is
it a self-generating process within each county?
Mr. O'Brien. Renshou County was famous for this in 1992. We
talked to officials in the Ministry of Civil Affairs after an
enormous riot took place there. In good Chinese Communist
fashion, people from surrounding counties starting coming to
Renshou to learn from the experience of the rioters there. The
Ministry of Civil Affairs actually had to close off the county
to prevent people from coming in. Demobilized soldiers and
former cadres played a large role in Renshou, as they have
elsewhere.
The biggest division in a village often is not between
cadres and villagers, but between cadres who are on the party
branch and other party members who have been edged out and are
not important figures in the village. The leaders of rightful
resistance are often former cadres, retired cadres who are not
being treated well, and demobilized soldiers who are party
members, who feel they are worldly, yet have no role in running
the village.
Mr. Minzner. So would it be fair to say, one, that their
organizational experience as to how to run a unit often comes
from their military background, and second--and this is
something we talked about at lunch today--the petitioner
camps----
Mr. O'Brien. No, I did not mention that. The logic here is
that after one form of contention fails people move on to
another. But even as mediated contention was failing,
protesters were busy talking to each other in petitioners'
camps or outside complaint bureaus, trading experiences,
hearing about successes, hearing about failures, and developing
new tactics while they were in the process of not succeeding
and not finding allies.
The big recent change is that rightful resisters now
increasingly expect their grievances to be redressed on the
spot. They are not trying to get an official in the Education
Bureau to come down and reverse excessive tuition fees. Twenty
``burden reduction heroes'' surrounded by 100 parents are
demanding that the money be returned now. The Center is invoked
to legitimate their claim, but in a concrete sense what matters
is the pressure that a mass of vaguely threatening people
standing in a room at a given moment can muster.
Mr. Foarde. Let me go on to ask Keith Hand if he has
another question or two.
Mr. Hand. I have one more.
We now have 15 years of experience under the Administrative
Litigation Law and 10 years under the State Compensation Law.
These statutes were held up as important legal checks on
official abuse. Yet, Professor Liebman, in your written
statement you mention that very few legal aid cases involve an
administrative claim.
In your view, have these laws had a significant impact in
practice in terms of improving access to justice? Are they a
factor at all in the countryside?
Mr. O'Brien. We just wrote a paper about this in the
January 2004 issue of the China Journal. The gist of it is that
legal channels are often not as effective as other channels.
The legal weapon, ironically, may work better outside the legal
arena than in it.
If a rightful resister can get to the number-one man in the
township, a problem can often be resolved. In the courts there
are many obstacles to having a case accepted, on the kinds of
claims one can make, and even on having a judgment enforced.
Mr. Liebman. I might have a little bit, but not much,
rosier view. I have three responses to Keith's question. One is
to say, and this picks up on what Professor O'Brien just said,
the problems with administrative litigation law somewhat are
due to the law and somewhat are just symptomatic of the system
in general.
The problem is with administrative litigation law is that
these problems like local protectionism, influence on the
court, external influence, whether it is corruption, party
influence, et cetera, are more acute in this case because the
other side has a vested interest and has ties and is, by
definition, the party state, the government.
So, I think what is important to remember, is a lot of
these problems are more acute in this context, but they also
are not unique to the administrative litigation law.
The second thing, is to say that it is hard to judge
whether these have been a success, in a sense, because it is
hard to know what the expectation should have been, for
example, in 1989 with regard to this. Statistics show some
leveling off of the number of cases. The number of cases is
significant, 80,000 cases a year.
So if we were sitting there in 1989, would we have thought
that was a realistic goal? It is very hard to judge whether it
is has been a success or not in those regards. Some cases are
being brought in. A lot of cases are not being brought, and
there is a lot of discussion as to why this is not happening.
This leads me to my third point, which is to say, in some
ways the law can be said to be a success in the sense that it
has engendered a lot of discussion about what the law does not
do. That is, the problems of the law are now being more and
more discussed and there is a serious effort to redraft the law
to address some of this. So you could say that in a sense the
administrative litigation law undertook a very, very modest
first step toward allowing people to bring these sorts of
claims against the state, and did lay the groundwork for
further change.
I think the jury is still out as to how much more change
will happen. One of the problems with the law, as Professor
O'Brien suggested, is that these claims are very hard to bring.
But some of the problems are also that what the law actually
permits to be brought is very narrow. At least on that point, I
think there is going to be change within the next few years.
There is certainly a lot of discussion of it. So, I think it is
hard to judge.
On the State Compensation Law, I am not an expert. It is
not something I have looked at in detail. You are the expert on
State Compensation Law. But I think, again, going back to some
of the things we have talked about before, one of the great
successes is that people think that these claims can be
brought. That is stage one. Stage two is actually seeing it
through to completion and actually having enforcement.
But in a sense, what we are seeing is a very gradual
movement, perhaps slower than we would like to see, and slower
than many people in China would like to see, but I think it has
perhaps laid the groundwork for revisions of these laws and to
claims being brought.
One final point. I think the best way of thinking of
administrative litigation law is as really one tool in the tool
kit if people were seeking redress. It is a mistake, I think,
to think of it as the solution to these problems. It is simply
another weapon, another tool that people with grievances rely
on, along with the various other things we have been discussing
today.
Mr. O'Brien. And just to be fair, if you brought Randy
Peerenboom to this room, he would tell you that it has actually
been quite successful, and that a 40 percent success rate--at
least arguably 40 percent--is one of the higher ones in the
world compared to administrative litigation almost anywhere
else.
Mr. Foarde. Let us give the final round of questions to
William Farris.
William.
Mr. Farris. No questions.
Mr. Foarde. All right. Good.
We have reached the magic hour. We do not want to impose
upon your good humor and your patience any longer. So, on
behalf of Chairman Jim Leach and our Co-Chairman, Senator Chuck
Hagel, and the members of the Congressional-Executive
Commission on China, our thanks to Kevin O'Brien and Ben
Liebman for helping us out this afternoon and helping us
understand access to justice issues.
Thank you to all who attended. Please keep watching the
website and your e-mail for announcements about our events in
September. I hope you all have a good August break. See you
again. Thank you.
[Whereupon, at 3:30 p.m. the roundtable was concluded.]
A P P E N D I X
=======================================================================
Prepared Statement of Kevin J. O'Brien
July 12, 2004
New Tactics in Rural Protest
For much of the 1980s and 1990s, some Chinese villagers engaged in
a form of protest that has been called rightful resistance. This
involves using the policies, laws, and commitments of the central State
to combat local officials who have been ignoring those policies, laws
and commitments. In the early post-Mao period, rightful resistance
tended to be mediated, in the sense that protesters didn't directly
confront their opponents, but instead relied on a powerful third party
to address their claims. Activists acted under the sufferance of, and
energetically sought support from (1) officials as high as central
policymakers, (2) cadres as low as any local official other than the
ones they were denouncing, and (3) journalists (or others) who could
communicate their grievances to high-ranking officials. When they acted
in this mediated fashion, rightful resisters sometimes mobilized
popular action, but their main goal was to use the threat of unrest to
attract attention from potential mediators and to apply pressure on
officeholders at higher levels to rein in their underlings. They
sought, in other words, to bypass their local opponents rather than to
force them to negotiate.
More recently, there's been a notable radicalization of tactics--a
move from humble petitioning to the politics of disruption. In places
such as Hengyang county, Hunan, protest leaders increasingly place
demands on their targets in person and try to wring concessions from
them on-the-spot. This increasingly direct form of rightful resistance
doesn't depend on high-level intercession, but on skilled rabble-
rousers and the popular pressure they can muster. Although protest
organizers still cite central policies, rather than sounding ``fire
alarms'' they (and the villagers who join them) try to put out the
fires themselves. Rightful resisters may still view the Center as a
symbolic backer and a guarantor against repression, but they no longer
genuinely expect higher-ups to intervene on their behalf. Instead, they
assert a right to resist (not only expose and denounce) unlawful acts,
and they regard themselves and their supporters to be capable of
resolving the problems at hand.
Direct action has three main variants. The least confrontational
might be called publicizing a policy. In the course of ``studying
documents,'' activists make known or distribute materials which (they
contend) show that county, township, or village cadres have violated a
central or provincial directive. They do so to alert the public to
official misconduct and mobilize opposition to unapproved ``local
policies.'' The documents they select always relate to issues that
concern villagers greatly, like reducing excessive taxes and fees,
decrying the use of violence, corruption, or promoting well-run village
elections.
Policy disseminators use a variety of methods. They may begin by
showing copies of laws they have acquired to their neighbors. As their
confidence mounts, they may often turn to more public ways to expose
local misconduct, such as playing tape recordings, or even using
megaphones or loudspeakers, to inform villagers of policy
misimplementation. Many efforts to make beneficial policies and laws
known are limited to a single village; others expand the field of
action. An example of the latter is employing ``propaganda vehicles''
or putting up posters throughout a township criticizing excessive fees
or rigged elections. Although they usually shy away from physical
confrontation, policy disseminators sometimes publicize policies and
laws in ways that can't help but lead to conflict. Two techniques sure
to produce official ire are distributing documents or holding so-called
``ten thousand person meetings'' near a government compound. Such
gatherings often turn into melees when township or county officials
intervene.
Publicizing documents often leads to repression; but it also
sometimes further protesters' ends. By reading out or distributing
central laws and policies, activists
expose unlawful actions, shatter information blockades, and demonstrate
(both to
officials and interested bystanders) that it may be possible to muster
large-scale resistance to local misconduct. In so doing, rightful
resisters assert their right to know about beneficial measures and to
communicate their knowledge. Ordinary villagers may be emboldened to
join them, or at least support them, not simply because they have been
made aware that central directives have been neglected, but because
they have seen fellow community members take the lead in standing up to
unlawful local actions.
The second variant of direct action is ``demanding a dialog.''
Activists and their supporters, often after collective petitioning or
publicizing a policy fails, may insist on face-to-face meetings with
local officials (or their proxies) to urge immediate revocation of
unlawful local measures. Rightful resisters have used this tactic in
Hengyang most notably to fight mounting school fees. Instead of simply
lodging a collective complaint, which would have been more common in
the past, a group of ``burden reduction representatives'' may proceed
directly to the school. The arrival of these ``peasant heroes''
typically attracts a large crowd, not least because the parents who
invited them often encourage onlookers to come, support them, and watch
the drama unfold. In one such incident in Hengyang, the lead activist
requested a face-to-face meeting with the head of a township middle
school. In front of a large assembly of local residents, he displayed
documents issued by the city and county education bureau that fixed
fees at a certain level and told the schoolmaster item by item how much
more students had been charged. The presence of nearly twenty hardened
activists as well as over one hundred bystanders, led to a round of
intense bargaining, after which the schoolmaster agreed to return about
80 percent of the illegal charges.
If publicizing a policy aims to remind errant cadres that they are
vulnerable to rightful claims, demanding a dialog is directed at
unresponsive targets who refuse to back down. At this stage,
negotiation and compromise are still possible, even desired by
activists. Cool bargaining and face-saving concessions become less
possible when protesters turn to the third variant of direct action:
face-to-face defiance.
Activists who use face-to-face defiance confront local officials on
the job and try to halt any illegal acts. They, for example, flatly
reject unauthorized local impositions and loudly encourage others to
follow suit. In Hengyang in 1998, one particularly feisty rightful
resister followed township tax collectors wherever they went. With two
other ``burden reduction representatives'' at his side, he brandished a
copy of a central directive and contested every effort to collect even
a yuan too much. The tax collectors dared not challenge him in public,
but one of them mumbled an insult after he refused to get out of their
way and let them do their job. A scuffle broke out and hundreds of
villagers came to defend the fee resister, eventually pinning the
beleaguered taxman in his jeep.
The three variants of direct action I've outlined here often appear
together. In addition, rightful resisters sometimes employ them in
sequence, starting by publicizing policies and then moving on to
demanding dialogs or face-to-face defiance. Whatever form it takes,
direct action marks a significant break from mediated contention. Its
appearance leads local cadres (and protesters themselves) into
uncharted territory, especially when activists lose control of their
followers or officials panic. It also opens up the possibility that
protesters will continue to escalate their tactics (perhaps toward out-
and-out violence) while embracing broader and deeper claims--claims
that are general and ideological rather than concrete and specific,
claims that challenge the legitimacy of local government rather than
the lawfulness of local decisions.
How new is all this? Mediated tactics haven't gone away; in fact,
they continue to be employed while direct, confrontational forms of
contention have also become more common.
How widespread is direct action? We can only speak at this point
about tactical escalation in Hengyang. But there are tantalizing signs
of tactical diffusion as protesters run into each other while engaging
in mediated forms of contention, be it in reception rooms, outside
``letters and visits offices,'' and in ``petitioners' camps,'' and
share stories of their frustration with the older tactics and victories
with the newer ones. Mobile telephones also enable protest organizers
in different counties to stay in touch and carry tales of inventive
tactics far and wide.
Why have direct tactics appeared just now? There are four factors.
First, past defeats. For many long-time complainants, the bitter truth
is that protectors at higher levels are often all talk and little
action. Protesters who employ mediated tactics are commonly ignored,
given the run-around, or harassed. Even if they do obtain a favorable
response from someone in power, their antagonists at lower levels often
ignore ``soft'' instructions from above or delay endlessly in
implementing them. So, new tactics arise first and foremost because
mediators don't mediate. Failure leads to growing frustration and
encourages some protest organizer to find new ways to further their
goals.
Second, despite these many failures, mediated contention can
generate resources and create openings for direct contention.
Activists, most notably, have obtained copies of authoritative ``red-
headed documents'' and laws via mediated contention that confirmed
policy violations were taking place. Some of these measures even
authorize direct action when central directives are ignored, such as
the Agriculture Law, which empowers villagers to reject illegal fees.
Participants in mediated contention also sometimes obtain oral or
written assurances that, for example, disseminating beneficial policies
is legally protected. While an official who scrawls on a letter of
complaint ``disseminating policies is protected by law'' may be seeking
mainly to get a group of activists out of his or her office and to
discourage them from returning, resourceful activists often interpret
these off-hand ``instructions,'' to be evidence that a meaningful gap
exists between authorities at higher and lower levels, which they can
exploit.
Technology has also facilitated direct action. Beyond tape
recorders, loudspeakers, and mobile broadcasting stations, cell phones
have become important for coordination and planning rightful
resistance, while photocopying and computerized printing have played a
large role in easing duplication of central, provincial and city
regulations and lending a patina of authenticity to documents that
officials previously would have claimed were bogus. All these
technologies enable rightful resisters to reach out to (and fire up) a
mass constituency in a way that was less critical when they were simply
lodging mass complaints and depended largely on elite allies rather
than agitated, disgruntled villagers.
Fourth, there is popular support. So long as rightful resisters
refrain from demanding excessive donations or harassing free-riders,
tactical escalation usually generates more community approval than
disapproval. Unlike protest in the West, where the presence of a
``radical flank'' often works to the benefits of more moderate
elements, ordinary villagers often respect and admire people who engage
in dramatic acts of resistance. The beginning of direct action in a
village often sets in
motion a sequence of events where wary but hopeful spectators (and some
new participants) are delighted to see imperious, corrupt, and abusive
local officials get their comeuppance and even privately egg protest
leaders to ratchet the level of confrontation up a notch.
Let me close with just a few words on who innovates. Although in
many countries new tactics depend on the entry of new protesters, our
evidence suggests that tactical escalation is mainly the handiwork of
seasoned complainants. In Hengyang, for instance, all 32 protest
leaders on whom we have information had been involved in collective
action for at least eight years, and all of them employed mediated
tactics before moving on to direct action. Most of the innovators we
have encountered are unusually assertive and self-confident characters,
who, for example, enjoy telling anyone who would listen how much pride
they took in fighting wrongdoing. These die-hards have remarkably hard-
charging personalities, and disenchantment with mediated tactics only
feeds their indignation, brinksmanship, and dreams of grandeur while
boosting their commitment to find a way to do whatever it takes to
prevail.
Putting it all in a nutshell, rightful resistance has evolved in
rural China. Some long-time activists, seeing few alternatives and too
proud to accept defeat, have turned to more confrontational forms of
protest. Instead of counting on higher-level patrons to address their
claims, protesters and their followers have increasingly come to demand
justice on the spot. In an attempt to halt policy violations, they have
transformed tiny openings into opportunities to deploy more disruptive
tactics, such as publicizing policies, demanding dialogs, and face-to-
face defiance. In the course of doing so, they have exploited the
spread of communications and information technologies, including mobile
phones, photocopying, and computerized printing. Direct tactics, to
this point, have generally not overstepped the Center's sufferance (so
long as protest leaders and their followers stop short of violence and
clearly illegal acts), and they almost always meet with popular
acclaim, as rightful resisters persist, win occasional victories, and
keep trumpeting their willingness to sacrifice all for the interests of
the Party and the people.
______
Prepared Statement of Benjamin L. Liebman
July 12, 2004
Thank you for inviting me to speak to you today. I would also like
to thank the staff of the Commission, and in particular Keith and
Carl--with whose work I am most familiar--for the high-quality of their
work to date.
Today's topic is very broad. I would like to address two specific
aspects of ``access to justice'' in China: the growth of legal aid
programs, and the role in rural areas of para-professional legal
service workers, known as ``Basic Level Legal Workers.'' I hope we will
have time to discuss some of the related issues in the discussion
period.
The growth of legal aid and continued emphasis on the work of Basic
Level Legal Workers reflects a State policy of steering disputes into
the courts. These developments also demonstrate both the significant
progress over the past decade in making the courts more accessible, and
also some of the continuing barriers to those seeking redress through
law.
But the formal legal system is not the only--or most effective--
route available to citizens seeking redress in China. Individuals also
often pursue their claims via government departments, letters and
visits offices, the media, or through the strategies that Professor
O'Brien describes in his remarks. Indeed, one defining characteristic
of the Chinese system is that individuals with grievances often pursue
their claims in multiple forums concurrently. Thus the most effective
lawyers are often those with the best contacts in the media, or who
best understand the workings of various arms of the state.
I. LEGAL AID
A decade ago China had a tiny number of legal aid institutions.\1\
They were generally university-based and funded by western foundations.
As recently as 1995 the Chinese term for ``legal aid'' was virtually
unknown in the Chinese legal world, much less in broader society. Over
the past decade, China has embraced legal aid to a dramatic degree.
There were virtually no government-supported legal aid centers in 1994.
By the end of 2002 China had more than 2,400 legal aid offices, the
overwhelming majority of which were state-funded. The development of
legal aid in China has occurred in parallel with the separation of
lawyers from the state. Although lawyers remain subject to regulation
by the Ministry of Justice--including requirements that lawyers engage
in mandatory pro bono work--virtually all Chinese law firms are now
financially independent from the state.
---------------------------------------------------------------------------
\1\ For a discussion of the development of legal aid in China, see
Benjamin L. Liebman, Legal Aid and Public Interest Law in China, 34
Texas Int'l L.J. 211 (1999).
---------------------------------------------------------------------------
The number of cases legal aid centers handle has likewise risen
considerably. Official statistics State that legal aid lawyers handled
180,000 cases in 2002, a 28 percent increase on the prior year. Close
to two-thirds of all legal aid cases are civil cases, and approximately
one-third are criminal cases. A very small percentage of cases are
administrative cases.
A number of factors explain this rapid development. Expanding legal
aid helps to push disputes into the formal legal system--and thus keep
them off the streets. Legal aid is also consistent with State policy of
addressing income inequalities and assisting those who have been left
behind by China's rapid development. Legal aid helps to constrain
lawless behavior at the local level. And legal aid is perceived as an
important aspect of a modern legal system--something to which China
aspires.
Most of the development of legal aid has been state-driven.
Nevertheless, numerous quasi-independent legal aid centers have also
emerged, mostly linked to universities or women's organizations.
Indeed, although the statistics focus on the development of government
legal aid centers, some of the most important developments are
happening in this quasi-independent sector. A number of university-
based centers are focusing on impact litigation, using cases--
frequently class actions--to highlight structural problems in the legal
system. Often working with the media, the goal of these cases is to
apply pressure for change within the system.
Despite the significant progress to date in establishing a legal
aid system, substantial problems remain. Although State reports
emphasize the number of legal aid centers, with the exception of one or
two provinces this rhetorical commitment to legal aid has not been
backed up with sufficient funding. There are significant regional
variations in how legal aid programs are implemented. Some legal aid
centers employ full-time lawyers, but many consist of reassigned
justice bureau officials whose job it is to assign cases to local law
firms. In other locales, establishment of a ``legal aid center'' or
``legal aid station'' consists of simply adding an additional sign to
the local justice bureau's door. In most areas, lawyers must handle a
certain number of government-assigned legal aid cases a year, although
in some locales law firms may opt-out of such requirements by paying a
fee to the local legal aid office.
Local authorities also generally determine the cases that are
deemed eligible for state-backed legal aid. As a result, certain
classes of cases--in particular administrative suits against local
authorities--may be explicitly or implicitly discouraged. Critics
complain that legal aid centers overwhelming focus on ``soft'' or
``easy cases,'' those that do not bring litigants into conflict with
local authorities or locally powerful enterprises. Critics also note
that the quality of representation is often low, with law firms either
assigning their most junior lawyers to handle pro bono cases, or
failing to devote sufficient resources to the cases they are assigned.
Some legal aid centers have focused on the rights of migrant
workers. In other areas, however, legal aid offices have been reluctant
to represent migrant workers, arguing that legal aid should be provided
to local residents only, or that migrant workers are unable to prove
that they qualify for legal aid. And in the criminal context, current
laws mandate provision of lawyers to only a very small range of
defendants--foreigners, juveniles, the disabled, and those facing a
possible death sentence. In other cases, the local legal aid center may
provide a lawyer if the defendant is poor, but they have significant
discretion over whether to do so. Many legal aid centers have been
reluctant to focus their limited resources on criminal cases. The
expansion of legal aid has also largely been concentrated in urban
areas--most legal aid centers are in cities or major county towns--and
in the wealthier eastern provinces. Legal aid has thus remained out of
reach for many of those most in need.
Despite these problems, the trend in recent years has been
positive, reflecting both a genuine attempt to address grievances, and
also a desire to increase the relevance of law for ordinary people. The
most important consequence of the expansion of legal aid is something
not measured in statistics: it is the rising expectation among Chinese
people that law and the legal system can and should be used to address
their grievances.
In addition, the continued growth of university-based and other
legal aid organizations outside the direct oversight of the Ministry of
Justice is of particular note given concerns that the Ministry of
Justice would attempt to bring all legal aid organizations under its
direct control.
Instead, language in the 2002 Legal Aid Regulations provides that
the state encourages and supports ``social institutions'' to provide
legal aid.\2\ Non-government legal aid organizations must operate with
care, but they do appear to have widening space within which to
operate.
---------------------------------------------------------------------------
\2\ An English translation of the regulations is available on the
CECC website. See http://www.cecc.gov/pages/selectLaws/
ResidencySocWelfare/
regsLegalAid.php?PHPSESSID=eb323d5ddd91cc28bec6c381c0bc320f.
---------------------------------------------------------------------------
II. BASIC LEVEL LEGAL WORKERS
Perhaps the biggest challenge facing those working to expand legal
aid has been that, until very recently, legal aid centers have been
overwhelming concentrated in cities. Although some legal aid centers in
cities do represent the rural poor and migrant workers, the legal aid
system has been inaccessible to many of those most in need.
Chinese officials responsible for legal aid have recognized this
problem, and an increasing number of legal aid offices have opened at
the county level. Officials also emphasize the need to develop legal
aid in poorer interior provinces. Nevertheless, such offices often
remain underfunded and understaffed, and sometimes still out of reach
those most in need.
Yet China has a long-established system for providing legal
services in rural areas. Beginning the late 1980s, China developed a
network of para-professionals, known as Basic Level Legal Workers.\3\
Most Basic Level Legal Workers are not lawyers, but have received some
legal training and are licensed by the provincial justice bureau,
either through an exam or by meeting other requirements.
---------------------------------------------------------------------------
\3\ For additional discussion of the role of Basic Level Legal
Workers, see Benjamin L. Liebman, Lawyers, Legal Aid, and Legitimacy in
China, in Raising the Bar (Alford & Miyazawa eds., 2004).
---------------------------------------------------------------------------
There are approximately 100,000 such workers in China today--only
somewhat fewer than the 130,000 registered lawyers. They operate out of
nearly 27,000 legal services offices--ten times the total number of
legal aid offices. In contrast to workers at the State legal aid
centers, Basic Level Legal Workers are not State workers: they earn an
income based on the modest fees they charge for services. Nevertheless,
they are often considered to be engaged in ``legal aid'' and work
closely with local justice bureaus, assisting with mediation and legal
education campaigns as well as providing legal advice and handling
cases. Basic Level Legal Workers are permitted to represent parties in
civil and administrative cases; they are not permitted to represent
criminal defendants.
Basic Level Legal Workers have emerged as an important mechanism
for facilitating claims by the rural poor. In many areas in China there
are virtually no lawyers, and thus Basic Level Legal Workers play an
important role in meeting the
demand for legal services. Basic Level Legal Workers handle hundreds of
thousands of civil cases a year. One recent report stated that the
total number of litigation and non-litigation matters handled by Basic
Level Legal Workers is 50 percent greater than the number handled by
lawyers. Even if such statistics tell only part of the story, it is
clear that such workers play a major role in many areas--indeed, in
some areas judges and litigants routinely refer to Basic Level Legal
Workers as ``lawyers.'' In a system in which litigants are often
distrustful of the courts, Basic Level Legal Workers also play
important roles in explaining legal procedures and facilitating
interaction between rural citizens and courts.
The status of Basic Level Legal Workers is in flux. Originally
designed to address legal needs in rural areas, many Basic Level Legal
Workers have moved into urban areas in order to earn higher incomes.
Although Basic Level Legal Workers and their supporters contend that
they help to meet a demand for low-cost legal services, lawyers are
increasingly complaining of competition from their lower-cost
counterparts. Many lawyers and justice bureau officials now argue that
the basic level legal worker system should be abolished, or at the very
least restricted to matters not involving litigation. They contend that
such workers are often ill-trained and lack ethical standards. This may
be so, but the same could be said of many lawyers. Some critics in
China also point out that some of what Basic Level Legal Workers do is
technically illegal under the 1996 Lawyers Law--which states that only
lawyers may undertake representation in cases for profit.
Ministry of Justice officials have indicated that Basic Level Legal
Workers will be gradually phased out in urban areas. In particular that
such workers will not be permitted to engage in litigation. Basic level
legal workers will, however, continue to serve in rural areas.
These moves are understandable, as is the desire of China's lawyers
to have a monopoly. The strong reaction of lawyers toward Basic Level
Legal Workers represents a rare instance in which the Chinese bar has
asserted its collective self-interest. Yet China may also be moving too
quickly toward its goal of a legal model in which legal services are
provided by lawyers alone, without sufficient consideration of the
actual situation on the ground.
China has rapidly and impressively expanded legal training and the
size of the bar, but the per capita number of lawyers is modest by
international standards, in particular in rural areas, and the quality
of training varies. Moreover, there are strong arguments that lawyers,
the overwhelming majority of whom are based in urban areas, may not be
best-positioned to assist in dispute resolution in rural areas. Some in
China appear committed to moving toward a U.S. model of a large bar
with strict limits on the unauthorized practice of law; experience to
date suggests this model may be inappropriate. Basic Level Legal
Workers have an important role to play in continuing to meet the demand
for legal services in rural areas.
Another indication of the strong demand for legal services in rural
areas is the rising number of ``barefoot lawyers.'' In contrast to
Basic Level Legal Workers and lawyers, ``barefoot lawyers'' generally
are self-trained and not licensed. These individuals assist fellow
villagers in navigating the formal legal system, from writing legal
documents to assisting them in court. Officially barefoot lawyers are
not permitted to charge fees for their services, although whether they
do so difficult for the authorities to determine. The proliferation of
barefoot lawyers in recent years is a testament both to their own
ingenuity, and to the success of State legal education campaigns. Such
campaigns have raised knowledge of law and legal procedures, and also
expectations of the system's role in protecting the rights of
individuals.
The demand for lawyers, Basic Level Legal Workers, and barefoot
lawyers--and the fact that many Basic Level Legal Workers are able to
make a living while also meeting the legal needs of the rural poor--
highlights the importance of market forces in bringing a widening range
of disputes into the courts. China will not be able to meet the demand
for legal services by those unable to afford lawyers through legal aid
alone. China permits contingency fees and class actions, and such
mechanisms are already leading to a widening array of cases being
brought in the courts.\4\ The expansion of these and other incentives
to lawyers to represent the disadvantaged will be as important as the
development of legal aid.
---------------------------------------------------------------------------
\4\ See generally Benjamin L. Liebman, Note, Class Action
Litigation in China, 111 Harv. L. Rev. 1523 (1998).
---------------------------------------------------------------------------
III. CONCLUSION
As I indicated at the beginning of these remarks, the developments
I have described cannot be understood in isolation, in particular
because litigants themselves often pursue multiple avenues of redress.
In addition, in the past 2 years authorities have begun to reemphasize
the importance of mediation, which has in recent years declined in
importance when compared to litigation. This recent focus on mediation
is apparently designed to reduce both the number of cases that are
litigated and the number of complaints brought to letters and visits
offices. Authorities appear concerned both with the rising tide of
popular complaints brought to such offices, and also with the ability
of the courts to handle a rapidly growing volume of cases.
The growth of legal aid and continuation of the Basic Level Legal
Worker system are playing important roles in making justice more
accessible in China. But the ability of individuals to obtain redress
will continue to depend as much on the evolution of the courts, the
media, and government more generally as it does on the availability of
legal representation. The media, in particular, have in recent years
emerged as one of the most influential actors in the Chinese legal
system.\5\
---------------------------------------------------------------------------
\5\ See Benjamin L. Liebman, Watchdogs or Demagogues? The Media in
the Chinese Legal System (forthcoming Columbia L. Rev. Jan. 2005).
---------------------------------------------------------------------------
For those of us in this country with an interest in China's legal
development, these developments have a number of implications:
First, such developments highlight the need for a much greater
understanding--both in China and in the United States--of developments
in rural areas. Many legal reform projects, and the work of most
academics in both China and the west, focus on developments in major
urban areas. We need a far better understanding of developments in
rural areas if we are to play constructive roles in assisting access to
justice in such areas.
Second, this is an area in which very modest financial support can
have a major effect. The most successful legal aid centers in China--
the Women's Rights Center at Beijing University, the Environmental Law
Clinic at China University of Law and Politics, and the legal aid
center at Wuhan University--have all succeeded with financial support
that is modest when compared to overall international spending on legal
reform in China. A small amount of money can go along way in assisting
legal aid centers, in particular during their startup periods.
Third, these developments show the importance of the continued
strengthening of the public interest bar in China. In particular, we in
the United States should be doing much more to facilitate the training
of public interest lawyers from China. At the same time, however, we
should remember, and remind our Chinese colleagues, that lawyers may
not be the only solution to the growing demand for legal services.
Fourth, we should be encouraging our colleagues in China to look to
a range of domestic and foreign precedents for legal reform--not just
those from the United States, or even only from western countries.
Fifth, and finally, in assessing developments in China we should
not underestimate the power of small changes. The single greatest
effect of increased attention to legal aid, and to law and justice more
generally, is likely to be the growing expectation among ordinary
Chinese that the legal system should protect their interests.
Submission for the Record
----------
[Excerpt From Rightful Resistance: Contentious Politics in Rural China,
June 2, 2004]
Chapter 5.--Tactical Escalation
(By Kevin J. O'Brien, Department of Political Science University of
California, Berkeley and Lianjiang Li, Department of Government and
International Studies, Hong Kong Baptist University, Kowloon Toing,
Kowloon, Hong Kong SAR, China)
Forms of contention generally have a limited lifespan. Even the
most creative tactics tend, over time, to lose their power to surprise
opponents and stir followers. Tactical escalation offers a means to
regain momentumwhen established techniques of protest no longer create
the sense of crises and excitement they once did. As the effectiveness
of familiar methods wanes, enterprisingactivists sometimes turn to more
disruptive acts to demonstrate their commitment, leave their opponents
rattled, and mobilize supporters (on the advantages of unruliness, see
Andrews, 2001; Gamson, 1990; Guigni, 1999: xvi-xviii; Tarrow, 1998:
163, chap. 6). Although confrontational tactics can at times alienate
the public and generate a backlash (Rochon, 1988), they can also help
draw newcomers to a cause (Jasper, 1997: 248) while offering leverage
to actors who have few other resources (Piven and Cloward, 1992).
Tactical escalation typically involves dramatic gestures and
provocations that test the vulnerabilities of one's foes. It may appear
in the form of a single tactic (e.g. the sit-in, the mock shantytown,
the suffrage parade) that vividly symbolizes injustice and is difficult
for the authorities and onlookers to ignore. Or it may arise as a
cluster of related innovations (Voss and Sherman, 2000) that reflects a
fresh approach to protest and signals a new ``tactical grammar''
(Ennis, 1987: 531) is at work.
In rural China, much like it did during the American Civil Rights
Movement, revitalizing the repertoire of contention has entailed a
radicalization of tactics--a move from humble petitioning to the
politics of disruption (McAdam, 1983: 738) In places such as Hengyang
county, Hunan, rightful resistance has become far more confrontational
over the last decade, as the mediated tactics of the past are being
demoted or adapted and more direct protest routines are on the rise.
In its basic form, rightful resistance is a rather tame form of
contention that makes use of existing (if clogged) channels of
participation and relies heavily on the patronage of elite backers. It
is mediated in the sense that complainants do not
directly confront their opponents, but instead rely on a powerful third
party to address their claims. Activists at this point always act under
the sufferance of, and energetically seek support from (1) officials as
high as central policymakers, (2) cadres as low as any local official
other than the ones they are denouncing, and (3) journalists (or
others) who can communicate their grievances to high-ranking
authorities. In this basic form, rightful resisters may mobilize
popular action, but their main aim is to use the threat of unrest to
attract attention from possible mediators and to apply pressure on
officeholders at higher levels to rein in their underlings. Protest
leaders, in other words, seek to bypass their local adversaries rather
than to compel them to negotiate.
Direct action is quite different. In Hengyang county, for instance,
activists increasingly place demands on their targets in person and try
to wring concessions from them on-the-spot. This form of rightful
resistance does not depend on high-level intercession, but on skilled
rabble-rousers and the popular pressure they can muster. Although
protest organizers still cite central policies, rather than sounding
``fire alarms'' (McCubbins and Schwarz, 1984) they (and the villagers
who join them) try to put out the fires themselves--they enforce rather
than inform. In direct rightful resistance, though activists may still
view the Center as a source of legitimacy, a symbolic backer, and a
guarantor against repression, they no longer genuinely expect higher-
ups to intervene on their behalf. Instead, they regard themselves and
their supporters to be capable of resolving the problems at hand.
Acting as ever in the name of faithful policy implementation, rightful
resisters now confront their targets (often face-to-face) and mobilize
as much popular action as they can to induce them to halt policy
violations. Direct action, in the end, relies on appeals to the
community rather than to higher level authorities and its goal is
immediate concessions.
This chapter will begin by examining some of the forms that direct
rightful resistance takes in rural China. Then we will move on to a
series of questions suggested by the broader literature on tactical
innovation, including: are these tactics truly new and how widespread
are they? Who is mainly responsible for initiating direct action,
newcomers or seasoned complainants? And, most importantly, why is
tactical escalation occurring? Along the way we will alight on a number
of explanations for tactical change, including ones that underscore the
role of prior experiences with contention, resources, and popular
support.
It is worth mentioning that studies of tactical innovation usually
concentrate on how a repertoire of contention evolves rather than why
certain tactics are chosen (Jasper, 1997: 234; Brown, 2003). We tread a
middle path here, emphasizing both external forces that structure the
options open to rightful resisters and internal factors that sometimes
lead them to make tactical decisions that attention to the environment
alone would never predict. We derive most of our conclusions from
talking with rural protest organizers about actions they have taken and
why they thought certain tactics were effective or not (on the
advantages of interviewing over after-the-fact theorizing, see Brown,
2003). We also draw on government reports that
detail episodes of popular unrest, other written accounts, and our own
earlier field research.
three variants of direct action
Mediated contention is a form of seeking grace from highly placed
intercessors whose characteristic expression is group petitioning.
Direct action, on the contrary, rests on a public rallying call and
high-pressure methods that are designed to coax local leaders to revoke
an illegal decision. When employing direct tactics, protesters and
their supporters assert a right to resist (not only expose and
denounce) unlawful acts.
In contemporary rural China, direct action has three main variants.
The least confrontational might be called publicizing a policy. In the
course of ``studying'' (xue) or ``disseminating documents'' (xuanchuan
wenjian), activists make known or distribute materials which (they
contend) show that county, township, or village cadres have violated a
central or provincial directive. They do so for the purpose of alerting
the public to official misconduct and mobilizing opposition to
unapproved ``local policies'' (tu zhengce). The documents they select
always relate to issues that concern villagers greatly, be it reducing
excessive taxes and fees, decrying the use of violence, or promoting
well-run village elections. In Hengyang county alone, activists have
publicized the following materials: President Jiang Zemin's 1998 speech
on reducing ``peasant burdens'' (nongmin fudan) (Wang et al., 1998: 1),
Hunan Provincial Document No. 9 (1996) on the same subject (Int. 7; Yu
Jianrong, 2001: 559), and the 1993 Agriculture Law (Int. 6), especially
its clauses (Arts. 18, 19, 59) that forbid imposing unlawful fees,
affirm the right of villagers to ``reject'' (jujue) unsanctioned
exactions, and stipulate that higher levels should work to halt such
impositions and have them returned to villagers.
Participants in direct action use a variety of methods to make
beneficial policies known and to mobilize resistance to their
violation. They may begin by showing government papers they have
acquired to their neighbors. The most inconspicuous way to do this is
in a private home (Ints. 5, 6, 7, 38). A somewhat more overt approach
involves photocopying central or provincial documents and then handing
or selling them to interested villagers (Ints. 17, 21). One activist in
Hengyang (Int. 17) proudly told us that he charged his neighbors
precisely what he paid the copy shop and actually lost a fair sum when
some villagers walked off with photocopied documents without
reimbursing him.
As their confidence mounts, rightful resisters may turn to more
public ways to expose local misconduct. An example of this is playing
tape recordings, or even using megaphones or loudspeakers, to inform
villagers of beneficial policies. In Henan, for instance, in response
to township manipulation of village elections and increasing exactions,
a young man from Suiping county used a megaphone to acquaint his fellow
villagers with the Organic Law of Villagers' Committees (1998) and
central directives prohibiting excessive taxes and fees (Hao Fu and
Chen Lei, 2002).\1\ In Hengyang county, a middle-aged shop-owner went a
step further and was ultimately detained and beaten by township
authorities for his cheekiness. He rented some audio equipment, set it
up on his roof, and aired central and provincial documents about easing
peasant burdens to his entire village (Mo Zhengtian, 2003).
---------------------------------------------------------------------------
\1\ On an activist posting copies of a State Council directive
(which warned local governments against the illegal use of land) on the
walls of his Zhejiang village, see Yu, 2003. The man claimed that ``all
I did was tell people what their legal rights were.''
---------------------------------------------------------------------------
Disseminating policies need not employ even the simplest technology
and can occur at unexpected times, as is seen when resourceful
activists appropriate apolitical rituals or celebrations and turn them
to their own ends. In rural Hengyang for instance, rightful resisters
hijacked a traditional dragon dance during Spring Festival (three
consecutive years!) to publicize central documents granting villagers a
right to reject unreasonable burdens and (on the sly) to solicit
donations for their cause. While parading up and down every lane, they
summarized the ``spirit of central documents'' (zhongyang wenjian
jingshen) in rhymed verse, chanting in unison as they wound their way
from home to home (Ints. 21, 39).
Many efforts to make beneficial policies known are limited to a
single village; others expand the field of action. An example of the
latter is employing ``propaganda vehicles'' (xuanchuan che) or putting
up posters throughout a township criticizing excessive fees or rigged
elections (Ints. 8, 21, 39). One activist in Hengyang (Int. 5), already
famous for organizing a road blockade in 1999, rented a truck and used
it as a mobile broadcasting station to transmit provincial directives
limiting rural taxation to a number of small hamlets scattered
throughout his township (see also Johnson 2004: 63, 67, 71). Another
protest leader, after participating in an expensive and fruitless
collective complaint to the Hunan provincial government in 1996, copied
excerpts of central documents calling for tax and fee reductions on
large posters and had a group of young villagers paste them up around
the county (Int. 8).
For many of these tactics, the intended audience does not have to
make any special effort. They can stay indoors, open their windows and
listen, or simply walk outside and watch what is going on. One variety
of dissemination that involves a more direct (if surreptitious) effort
to attract a crowd is presenting a movie and then publicizing
beneficial policies moments before the show begins. In Henan, as early
as 1993, a villager did this with a State Council regulation that
limited township and village fees (Yu Xin, 1993). Activists may also
inform villagers about poor implementation at rural markets. This
again, involves taking advantage of a ready-made audience. According to
several Hengyang protest organizers, on market days they sometimes
simply set up a loudspeaker in the town center and read out documents
concerning tax and fee reduction that were issued by the Center, Hunan
province, or Hengyang city (Yu Jianrong, 2001: 555; Ints. 4, 13, 40).
In such cases, even though rightful resisters may do their best to
minimize confrontation, clashes frequently occur after local officials
appear. Township cadres, when they heard the Hengyang activists
disclosing fee limits one busy market day in 1998, first cutoff
electricity to their loudspeaker. But a sympathetic restaurant owner
stepped in and supplied the villagers with a generator. Then, a number
of officials came out of their offices and ordered the protesters to
disperse, only to find themselves upbraided for impeding the lawful
dissemination of central policies.
Although they usually shy away from physical confrontation with
their adversaries, policy disseminators sometimes publicize policies in
ways that cannot help but lead to conflict. One technique of protest
sure to produce official ire is distributing policy documents near a
government compound. A Hengyang activist (Int. 6), for example,
excerpted central directives limiting peasant burdens on large, red
posters and plastered them on several buildings in the township
government complex. Protest organizers in Jiangxi have likewise sold
pamphlets about Beijing's fee reduction policies directly in front of a
Party office building (Ding Guoguang, 2001: 433-34). In both cases,
these tactics cornered township officials, heightened their fears that
further popular action was imminent, and led to a swift (and negative)
response. In Hengyang, township cadres removed the posters; in Jiangxi,
the book sellers were arrested.
By far the most assertive form of publicizing policies involves
both deliberate confrontation and undisguised mass mobilization. One
common tactic employed in Hengyang is to trail behind township tax
collectors as they try to collect fees, all the time loudly quoting tax
reduction directives (Ints. 13, 21). This practice not only challenges
the legality of an exaction, it also often draws scores of onlookers
and encourages less daring villagers to withhold their payments.
Another highly provocative form of propagating policies involves
calling so-called ``ten thousand-person meetings'' (wan ren dahui) in a
government compound to study policies that excoriate corruption or
limit fees (Duan Xianju et al., 2000). Such gatherings can rapidly turn
into melees when township or county officials intervene. In Hengyang, a
protest leader organized a mass meeting to force a rollback in taxes
and fees. To symbolize the activists' willingness to challenge the
township head-on, the speaker's
podium was placed just steps away from the main government office
building. Hundreds of villagers were invited to attend the rally and
the organizers planned to detain and deliver to the city government any
township official who ventured to interfere (Int. 4). In another widely
reported episode in Ningxiang county, Hunan, after a multi-village band
of ``Volunteer Propagandists for the Policy of Reducing Burden'' used
tape recorders and hired a loudspeaker truck in 1999 to tell villagers
about their rights, protest organizers assembled 4,000 people outside
the town government complex to demand adherence to central and
provincial directives that capped taxation and opposed corruption. But
before the speakers could say a word, the assembled villagers rushed
into the compound. Over one thousand police and 500 soldiers dispersed
the demonstrators, using clubs and tear gas. Many villagers were
arrested or injured, and one man was killed (Bernstein and Lu, 2003:
128-129).
Publicizing documents does not always lead to repression; it can
sometimes further protesters' ends. By reading out or distributing
central policies, activists expose unlawful actions, shatter
information blockades, and demonstrate (both to officials and
interested bystanders) that it may be possible to muster large-scale
resistance to local misconduct.\2\ In so doing, rightful resisters
assert their right to know about beneficial measures and to communicate
their knowledge to others. Ordinary villagers may be emboldened to join
them, or at least support them, not simply because they have been made
aware that central directives have been neglected, but because they
have seen fellow community members take the lead in standing up to
unlawful local actions. As we will see in the next chapter, when a
campaign of dissemination unfolds, formerly uninvolved villagers
sometimes become much less timid insomuch as they observe new ``peasant
leaders'' (nongmin lingxiu) emerging and a weakening of the local
government's usual stranglehold over political life.
---------------------------------------------------------------------------
\2\ For urban workers in China who ``are no longer simply
presenting their grievances to those in charge, but publicizing them,''
see Kernen, 2003a: 5. On their being ``not only concerned with handing
over a petition to the authorities, but also with inserting their
claims into the `public arena' '' see Kernen, 2003b: 9.
---------------------------------------------------------------------------
The second variant of direct action is ``demanding a dialog''
(yaoqiu duihua). Activists and their supporters, often after collective
petitioning or publicizing a policy fails to budge their foes, may
insist on face-to-face meetings with local officials (or their proxies)
to urge immediate revocation of unlawful local measures. Rightful
resisters have used this tactic in Hengyang most notably to fight
mounting school fees. Since many townships can no longer collect as
much revenue as they used to (owing both to pressure from above and
resistance from below), and many poorer districts are financially
starved in the wake of the 1994 fiscal reforms, township leaders have
frequently allowed local schoolmasters to increase educational fees on
their own.\3\ Self-styled ``burden-reduction representatives'' (jianfu
daibiao), usually after hard-pressed parents come to them for help, may
demand that all overcharges be returned. Instead of lodging a
collective complaint, which would have been more common in the past, a
group of representatives may proceed directly to the school. The
arrival of these ``peasant heroes'' (nongmin yingxiong) typically
attracts a large crowd, not least because the parents who invited them
often encourage onlookers to come, support them, and watch the drama
unfold. In one such incident in Hengyang, the lead activist requested a
face-to-face meeting with the head of a township middle school. In
front of a large assembly of local residents, he displayed documents
issued by the city and county education bureau that fixed fees at a
certain level and told the schoolmaster item by item how much more
students had been charged. The presence of nearly 20 hardened ``burden
reduction representatives,'' as well as over one hundred bystanders,
led to a round of intense bargaining, after which the schoolmaster
agreed to return about 80 percent of the illegal charges (Int. 18).
---------------------------------------------------------------------------
\3\ Beginning in 2001, the Center began increasing rural education
funding significantly (Bernstein 2003: 31-32). Whether this defuses
conflicts between school masters and villagers materially remains to be
seen.
---------------------------------------------------------------------------
But events do not always unfold so peacefully. On another occasion
also in Hengyang, a school head postponed a scheduled dialog so that he
would have time to hire a group of local toughs to scare off the
``burden reduction representatives.'' But when the meeting began and
the schoolmaster signaled his men to make their move, an elderly
bystander came to the defense of the representatives. He said he
admired their altruism and would protect them to the end (Int. 18).
``Demanding a dialog'' has also been employed against far more
powerful targets than local school heads. In Qidong county, Hunan, a
riot occurred in July 1996 in which hundreds of people attacked
township and village officials and smashed the signboards of the
township government. (Destroying the placards that identify government
offices is a symbolic denial of their legitimacy, much like burning a
flag or effigy). The county Party secretary rushed to the area to look
into the causes of the unrest. At the urging of hundreds of villagers,
he agreed to have an unlawfully collected education surcharge
rescinded. The incident ended, but news of the successful protest
spread rapidly. Upon learning of it, villagers in other parts of Qidong
county were inspired to rise up and demand dialogs. In early September
1996 three activists arranged a movie presentation in order to read out
a Hunan provincial document that reduced peasant burdens, to organize
villagers to resist excessive education apportionments, and to gather
signatures for a petition to present to the township. After the video
ended, just before a group of indignant movie-goers set out for the a
nearby government compound, a skirmish broke out with township
officials who had come to dissuade the protesters from demonstrating at
township headquarters. Two days later, over 600 villagers, carrying
banners and flags, beating drums and gongs, and setting off fireworks,
first paraded down the busiest street in the township and then went to
the main office building to insist on a meeting with the Party
secretary and government head. Over the next three days, hundreds of
villagers from four other townships in Qidong marched to their township
seats and demanded dialogs with Party and government leaders (Yu
Jianrong, 2001: 558-60).
If publicizing a policy aims to remind errant cadres that they are
vulnerable to rightful claims, demanding a dialog is directed at
unresponsive targets who refuse to back down. At this stage,
negotiation and compromise are still possible, even desired by
activists. Cool bargaining and face-saving concessions become
distinctly less possible when protesters turn to the third variant of
direct action: face-to-face defiance.
Activists who use this tactic openly confront local officials on
the job and try to halt any illegal acts. They, for example, flatly
reject unauthorized local impositions and loudly encourage others to
follow suit (Ints. 13, 17). In Hengyang in 1998, one particularly
feisty rightful resister followed township tax collectors wherever they
went. With two other ``burden reduction representatives'' at his side,
he brandished a copy of a central directive and contested every effort
to collect even a yuan (12 US cents) too much. The tax collectors dared
not challenge him in public, but one of them mumbled an insult after he
refused to get out of their way and let them do their job. A scuffle
broke out and hundreds of villagers came to defend the fee resister,
eventually pinning the beleaguered taxman in his jeep (Int. 17). That
same year a similar incident occurred in another township in Hengyang
county. Two ``burden-reduction representatives'' had locked horns with
township revenue collectors when they tried to prevent the collection
of several unauthorized fees. When the officials struck the lead
protest organizer with a flashlight, a shoving match broke out. Again,
angry villagers responded, this time overturning two jeeps the township
cadres used to conduct their work (Ints. 13, 41).
Rightful resisters may also use face-to-face defiance to challenge
rigged elections. In one dramatic episode in the early 1990s, a group
of villagers in Hubei successfully disrupted a villagers' committee
election in which nominations were not handled according to approved
procedures. Just as the ballots were being distributed, one villager
leapt to the platform where the election committee was presiding,
grabbed a microphone and shouted: ``Xiong Dachao is a corrupt cadre.
Don't vote for him!'' Immediately several of his confederates stood up
and started shouting words of support, seconding his charges. To
further dramatize their resistance, the assembled protesters then tore
up their own ballots as well as those of other villagers who were
milling about waiting to vote. (Zhongguo Jiceng Zhengquan Jianshe
Yanjiuhui, 1994; on six villagers seizing stuffed ballot boxes, see
Agence France Presse, 1999).
Public-minded intellectuals sometimes urge on direct action. The
following episode involved both disseminating policies and face-to-face
defiance. In Jiangxi, the deputy editor of a rural affairs journal
published 12,000 copies of a Work Manual on Reducing Farmers' Tax
Burdens. He later said: ``I was just carrying out my duty to help
farmers personally monitor arbitrary fees,'' and ``at the end of the
day, central government policies are not enough to help the farmers.
They need to be able to help themselves.'' The book had a section
advising farmers how to seek redress and its subtitle was ``The
imperial sword is in your hands, farmer friends, hold on tight!''
Although the editor ultimately lost his position and the provincial
government dispatched the police to confiscate as many copies of the
book as they could locate, the story received national attention in the
newspaper Southern Weekend (Nanfang Zhoumo) (Gilley, 2001; O'Brien and
Li, 2004: 78; Wang Zhiquan, 2002: 6; Yang Xuewu, 2001: 39).
The three variants of direct action outlined here are interrelated
and often appear together. In addition, rightful resisters sometimes
employ them in sequence, starting by publicizing policies and then
moving on to demanding dialogs or face-to-face defiance. Whatever form
it takes, direct action marks a significant break from mediated
contention. Its appearance leads local cadres (and protesters
themselves) into uncharted territory and introduces new uncertainties,
especially when activists lose control of their followers or officials
panic. It also opens up the possibility that rightful resisters will
continue to escalate their tactics (perhaps toward out-and-out
violence) while embracing broader and deeper claims (see Rucht, 1990:
171-72)--claims that are general and ideological rather than concrete
and specific (Mueller, 1999: 530-31; Tarrow, 1989), claims that
challenge the legitimacy of local government rather than the lawfulness
of local decisions.
HOW NEW?
Techniques of protest are seldom invented out of whole cloth. More
often, they appear at the edge of an existing repertoire of contention
as ``creative modifications or extensions of familiar routines''
(McAdam, Tarrow and Tilly, 2001: 49; Tilly, 1993: 265-66). Innovations,
in this way, signal a broadening of tactics and a growing strategic
flexibility by activists who are collectively generating a multi-
pronged strategy that can be deployed on many fronts (Andrews, 2001:
77; McCann, 1994: 86, 145; Rochon, 1998: 202-03; Tarrow, 1998: 37,
104).
This is very much the story in rural China today. Mediated tactics
continue to be employed while direct, confrontational forms of
contention have also become more common. Especially in locations where
the old ways have been found wanting time and again, more contained
acts are being augmented by boundary-spanning or even transgressive
acts, as protesters begin to enforce central directives themselves and
literally use policies as a weapon in their battles. As a researcher
from the Development Research Center of the State Council put it: ``
`contention within the system' (tizhi nei kangzheng) (such as
petitioning) is still the main feature of peasant action, but
contention outside the system (such as violence) is also obviously
increasing . . . Peasants start by lodging complaints at the county
level or higher, and doing so at the province or in Beijing is also
fairly common . . . If the petitions fail, they often turn to `direct'
(zhijie) resistance'' (Zhao Shukai, 2003: 2, 6-7).
The repertoire of contention, in other words, has expanded and some
of the newer tunes are becoming quite popular. Protest leaders in
places such as Hengyang are ``stretching the boundaries'' (Tilly, 1978:
155) of rightful resistance and are trying to breathe life into a form
of contention that had been enjoying only limited success. In
particular, they have established a ``radical flank'' (McAdam, McCarthy
and Zald, 1996: 14) at a time when it has become clear that the
mediators they put their faith in are often ineffective and local
opponents are largely impervious to half-hearted pressure from above.
HOW WIDESPREAD?
We can only speak with confidence, at this point, about tactical
escalation in Hengyang and a handful of other counties. Moreover, there
are good reasons to believe that protest forms spread slower in China
than in open polities where the media deems dramatic, innovative
tactics newsworthy (della Porta and Diani, 1999: 186; Rochon, 1988:
102-04) and rapidly transmits accounts of them nationwide (Soule, 1997:
858). In China, tactical diffusion still depends on word-of-mouth and
informal social networks.\4\ Complainants, in the course of lodging
complaints at higher levels (i.e. using mediated tactics), encounter
one another in reception rooms, outside ``letters and visits offices,''
and in ``petitioners' camps'' (shangfang cun), and share stories of
their frustration with the old forms and victories with the newer
ones.\5\ Telephones enable protest organizers in different counties to
stay in touch and carry tales of inventive tactics far and wide.\6\
Migrant workers bring word of popular action in distant locales.
Successful tactics often draw a stream of activists from the
surrounding area to confer with ``peasant heroes'' who have achieved
what had seemed impossible (Int. 41). Much as it has in other
authoritarian settings, ``low-intensity forms of communication . . .
enable rural agitators to learn their trade, share experiences, and
develop common identities'' away from official scrutiny and
interference (Euchner, 1996: 150-51).
---------------------------------------------------------------------------
\4\ On the limited reach and generality of ``diffusion'' compared
to ``brokerage,'' see McAdam, Tarrow and Tilly, 2001: 335. On
``contagion effects'' in rural China, see Bernstein, 2003: 21.
\5\ On finding, at any given time, about 50,000 aggrieved
individuals in a petitioners' camp outside one of the largest of
Beijing's complaints' offices, see (Beech, 2004). ``Training classes''
(peixun ban) run by some public intellectuals in Beijing have also
provided opportunities for rural complainants to meet and discuss their
experiences.
\6\ According to a Chinese researcher, ``some leading figures among
the peasantry have close ties with dozens or even a hundred peasant
complainants inside and outside the province. Sometimes they even
assemble to discuss important matters'' (Zhao Shukai, 2003: 7). On the
``elaborate organization'' of many protests, including having
designated leaders, public spokespersons, underground core groups, as
well as hired lawyers and invited journalist to cover their events, see
Tanner, 2004: 141.
---------------------------------------------------------------------------
Direct rightful resistance spreads by imitation; it can also become
more common owing to contemporaneous creation. Broadly similar
grievances and experiences with contention can help forge a collective
identity when limited interpersonal contact establishes minimal
identification between transmitters and adopters (McAdam and Rucht,
1993), or even without any direct, relational ties (Soule, 1997: 861;
Strang and Meyer, 1993).\7\ And this collective identity can inspire a
wave of a similar protests when a tactic becomes modular (Tarrow, 1998)
and adroit practitioners either import it wholesale or reinvent it
(with perhaps a local twist) to fit their particular situation
(Scalmer, 2002: 2).
---------------------------------------------------------------------------
\7\ Collective identities can be strengthened on the basis of
little more than a snippet of news. After the 1996 protests against
education surcharges in Hezhou town, Qidong county, Hunan, news of
success spread rapidly and other activists argued that elite solidarity
was not as great as it seemed, that villagers elsewhere should not
suffer more than those in Hezhou, and that other townships were also
vulnerable to direct tactics. One protest leader rallied his followers
with the words: ``We are all citizens of the People's Republic. We live
under the same blue sky. Why do we have to pay this unlawful
apportionment if our fellow citizens in Hezhou don't?'' (Int. 30; also
see Yu Jianrong, 2001: 558-60).
---------------------------------------------------------------------------
To this point, Chinese researchers have uncovered evidence of
direct action in the provinces of Sichuan, Anhui, Hunan, Jiangxi,
Henan, Shaanxi, and Hebei (Yang Hao, 1999; Jiang Zuoping and Yang
Sanjun, 1999; Duan Xianju et al., 2000; Yu Jianrong, 2001; Liu Shuyun
and Bai Lin, 2001; Jiang Zuoping et al., 2001; Ding Guoguang, 2001; Hao
Fu and Chen Lei, 2002; Xiao Tangbiao, 2002; Zhao Shukai, 2003). Our
interviews suggest that direct rightful resistance may be particularly
well-developed in Dangshan County, Anhui, Gushi County, Henan, and
Fengcheng County, Jiangxi. Furthermore, direct tactics in Hunan have
appeared not only in Hengyang, but also in the counties of Lianyuan,
Ningxiang, Qidong, Taoyuan, Xiangyin, and Yizhang (Duan Xianju et al.,
2000).
ORIGINS OF DIRECT TACTICS
It is only a start to say that tactics wear out ``in the same way
that rote speech falls flat'' (McAdam, Tarrow, and Tilly, 2001: 138).
New tactics are not a ``blind reflex'' (della Porta and Diani, 1999:
185) or an automatic response to anything. They must be created through
an interactive process (Jasper, 1997: 295; Tarrow, 1998: 102) that
entails ``incessant improvisation on the part of all participants''
(McAdam, Tarrow, and Tilly, 2001: 138) and ``a series of reciprocal
adjustments'' (della Porta and Diani, 1999: 186-87). This depends on
strategic decisions by protest leaders and their foes, as well as newly
available resources and changes in the external environment. Most of
all, in rural China, it hinges on activists who reflect on their
earlier experiences with mediated tactics, learn from their successes
and failures, and come up with perhaps brilliant, perhaps ill-advised
ways to pursue their ends the next time around (on tactical virtuosi,
see Jasper, 1997: 301, 319-20).
In the following pages, we discuss four factors that have
contributed to tactical escalation in the Chinese countryside: (1) past
defeats, (2) information about government policies and assurances
obtained during mediated contention, (3) advances in communications and
information technology, and (4) popular support for disruptive
protests.
Defeats
Defeat sometimes drives protest leaders underground or spurs them
to give up. It may also, however, motivate them to up the ante and
touch off a round of tactical escalation. Recurring failures can
trigger thoughts about jettisoning ineffective tactics (Beckwith, 2000;
McCammon, 2003) while the harsh policing often associated with defeat
may usher moderates into private life, leaving the stage to those with
more militant inclinations (Tarrow, 1998: 84-85, 150, 158, 201; see
also della Porta, 1996: 89-90; della Porta and Diani, 1999: 211).\8\ In
rural China, even without a marked improvement in the political
opportunity structure (in other contexts, see McCammon, 2003; Scalmer
2002: 21; Voss and Sherman, 2000: 341), a growing realization of the
inadequacy\9\ and riskiness of mediated tactics has undermined the
faith some activists had in lodging complaints and has induced them to
take direct action.
---------------------------------------------------------------------------
\8\ In Hengyang in 1998, 13 ``burden-reduction representatives''
were whittled down to six by threats leveled by a township government.
Backed into a corner, the remaining activists felt they either had to
accept defeat or change their course of action. They decided to press
on and engage in direct action by publicizing the Center's effort to
reduce farmers' burdens to every household in the township (Yu
Jianrong, 2001: 555).
\9\ Our 1999 survey of 1384 villagers in 25 provinces included 190
participants in collective complaints. Of these 190, 3 per cent were
very satisfied with the outcome of their action, 18 per cent relatively
satisfied, 24 per cent neither satisfied nor dissatisfied, 31 per cent
dissatisfied, and 23 per cent very dissatisfied. For more on this
survey, see Li, 2001: 1.
---------------------------------------------------------------------------
For many long-time complainants, the bitter truth is that
protectors at higher levels have too often shown themselves to be all
talk and little action. Anticipated backers frequently turn out to be
little more than a symbolic source of legitimacy, who intervene only
when egregious wrongs threaten political stability (such as after
village cadres in Henan killed a villager who persisted in pursuing
complaints) (Zhang Sutang and Xie Guoji, 1995: 4). In less incendiary
circumstances, rightful resisters who employ mediated tactics are
commonly ignored, given the run-around, or harassed. Even if they do
receive a favorable response from someone in power, their antagonists
at lower levels often ignore ``soft'' instructions from above or delay
endlessly in implementing them (O'Brien and Li, 1999; Wedeman, 2001;
but cf. Edin, 2003).
Defeats arise first and foremost because mediators do not mediate.
Delegations languish for weeks waiting for an appointment with leaders
who never emerge. Oral sympathy is not backed up with written
instructions (Int. 4). Complainants are treated politely in person and
then undercut behind their backs (Int. 5). The appearance of many open
doors in Beijing (e.g. letters and visits offices at the Central
Committee, the Party Discipline Inspection Committee, the National
People's Congress, various ministries, People's Daily, Farmer's Daily)
and at lower levels can keep hopes of mediated rightful resisters alive
for a while, but only intensifies their resentment when they receive no
response, are referred to yet another office, or a complaint ends up in
the hands of the official charged with misconduct (on letters and
visits, see Bernstein and Lu, 2003: 177-190; Chen, 2003; Luehrmann,
2003; Thireau and Hua, 2003).\10\ According to a policy researcher from
the Hunan Organization Department: ``People who visit higher levels to
lodge complaints very rarely obtain justice. Justice for them is like a
carrot dangling in front of a donkey. The donkey walks for many
kilometers but can never eat the carrot'' (Zhang Yinghong, 2002; also
Cai, 2003: 664, 679).
---------------------------------------------------------------------------
\10\ Complainants are often rounded up and sent home during annual
people's Congress sessions and at other times when officials are busy
announcing their achievements or showing off their city (see Beech,
2004). Before the 2004 National People's Congress, for example, the
Ministry of Land and Resources issued an urgent circular instructing
local officials to use ``firm and effective'' measures to handle long-
time complainants who were disputing land requisitions, and to ``do
everything possible to stabilize the masses in their locality''
(jinliang ba qunzhong wending zai dangdi) (Guo Tu Ziyuanbu, 2004).
---------------------------------------------------------------------------
In the end, many veteran activists have come to doubt the capacity
of the Center to ensure faithful policy implementation, and some even
think of it as a clay Buddha that local officials must bow to but can
ignore with impunity (Li, 2004: Int. 10). All this has led to growing
frustration among protesters who had relied on mediated tactics and has
encouraged some of them to find new ways to further their goals.
Information and Assurances
Despite its frequent failure to produce much redress, mediated
contention can generate resources and create openings that promote
direct contention. Activists, most notably, have obtained copies of
authoritative ``red-headed documents'' via mediated contention that
confirmed policy violations were taking place. In Hengyang, for
instance, Hunan Provincial Regulation No. 9 (1996) on limiting
exactions has played a large part in helping activists pinpoint
misconduct by local officials. Such documents can be shown to potential
supporters to prove, in detailed and clearly worded language, that
township and county cadres have betrayed their superiors.
Some of these measures even authorize direct action when central
directives are ignored. A 1991 State Council regulation, for example,
states: ``It is the obligation of farmers to remit taxes to the state,
to fulfill the state's procurement quotas for agricultural products,
and to be responsible for the various fees and services stipulated in
these regulations. Any other demands on farmers to provide financial,
material, or labor contributions gratis are illegal and farmers have
the right to reject them'' (cited in Bernstein and Lu, 2003: 48). Even
more authoritatively, the 1993 Agriculture Law (Art. 18) explicitly
grants villagers the right to refuse to pay illegal impositions. It is
true that these acts offer little protection if rejecting a demand
leads to detention, a beating, having one's home torn down, or having
one's valuables or livestock confiscated. Nor do they spell out
punishments for cadres who flout the limits. But this incompleteness
has only stimulated some protest leaders to devise their own ways to
make these rights real. Among other initiatives, activists in various
provinces have organized mass meetings to study and publicize the
Agriculture Law and provincial caps on taxation, and they have openly
challenged officials who fail to comply with them (Ints. 6, 7; Duan
Xianju et al., 2000; Ma Zhongdong, 2000).
Participants in mediated contention also sometimes obtain oral or
written assurances that disseminating beneficial policies is legally
protected. When several farmers in Hunan asked whether they could
publicize documents concerning excessive fees, officials at the
provincial letters and visits office encouraged them to do so, so that
villagers knew what was forbidden and what was not. On one occasion,
the
office director also reassured them that such actions were lawful and
jotted some supportive remarks on the cover of a provincial regulation
he gave to the lead
complainant (Int. 5). Another Hengyang protest leader received similar
words of encouragement when he visited the Ministry of Agriculture in
Beijing (Int. 6). More remarkably, when several farmers lodged a
complaint at the Fujian provincial government concerning a township's
illegal sale of farmland they had contracted, the staff member who
received them at the Letters and Visits Office reassured them that they
had the right to block the purchaser from taking over the land (Int.
37). Acting on the belief that they had located a ``guarantor against
repression'' (Tarrow, 1998: 79), each of these protest leaders then
transformed a few kind words (in fact, the only politically correct
response) into permission to pursue a broad-based campaign of
publicizing policies. In the Fujian case, villagers also went a step
further: they acted on the official's advice and physically blocked the
land buyer's men when they came to claim the property (Int. 37).
Strictly speaking, there is no law that allows Chinese citizens to
publicize Party policies and State laws. But at the same time this is
an act whose correctness no one can legitimately challenge. While an
official who scrawls on a letter of complaint ``disseminating policies
is protected by law'' may be seeking mainly to get a group of activists
out of his or her office and to discourage them from returning (see
Guo, 2001: 434), resourceful activists often waste little time
expanding this discursive crack into a window of opportunity. They
interpret official ``instructions'' (pishi), as informal and off-hand
as they usually are, to be evidence that a meaningful gap exists
between authorities at higher and lower levels. What might have been
little more than a brush-off, in other words, can easily justify
upgrading a general license to publicize policies into an explicit go-
ahead to challenge abusive local officials and mobilize opposition to
unlawful decisions in one's own village.
In sum, even though mediated contention usually fails to generate
the hoped-for relief, it can provide activists with crucial information
about official misconduct, suggest political openings (that may or may
not exist), and (by changing protest leaders' expectations and their
store or resources) set the stage for direct rightful resistance.
Communications and Information Technologies
Some activists in rural China use remarkably low-tech (or no-tech)
means to mobilize and coordinate direct action. In Jize county, Hebei,
for example, protest leaders set off firecrackers to assemble villagers
in front of a general store before leading them to demand a dialog with
township leaders (Yang Shouyong and Wang Jintao, 2001: 40-42), while in
Hunan village lookouts used gongs to summon community members to defend
protest organizers who were about to be arrested (Duan Xianju et al.,
2000; Int. 6).
But some newer technologies (which have only recently reached the
countryside) have played an even bigger role in facilitating direct
rightful resistance. We have already seen how audio equipment such as
tape recorders, loudspeakers, and mobile broadcasting stations can help
publicize policies and rally supporters. Insomuch as direct action
requires considerable coordination and planning, telephones have also
become an important tool for many protest leaders. More and more
activists these days use mobile phones to arrange multi-village or even
multi-township actions. In Hengyang, for instance, one farmer (Int. 4)
set up a telephone tree that connected hundreds of activists in nearly
a dozen townships. Many of his fellow organizers now have cell phones
or land lines at home; those who do not, rely on neighbors who are
willing to pass on messages about the time and place of meetings,
upcoming actions, the number of protesters to turn out, and so on. In
Hunan, villagers have even used mobile phones to protect investigators
who have come to conduct research on rural contention. One protest
leader called two journalists sent by the magazine Window on the South
Wind (Nanfeng Chuang) to warn them (three times!) to change taxis after
his followers discovered that county officials had learned the license
plate number of their vehicle; later, after the reporters stayed in one
location too long and were detained, another activist phoned to offer
to mobilize hundreds of villagers to free them (Int. 43; on other
rescues, see Bernstein, 2003: 15; Johnson, 2004: 69).
Personal computers are another breakthrough that has promoted the
use of direct tactics. Computer printing, in particular, can aid both
in publicizing policies and reproducing letters of complaints.
Activists in Anhui province, for instance, painstakingly entered a
beneficial tax policy on a computer, character by character, and then
distributed printouts to stir up resistance to unlawful taxation (Zhang
Cuiling, 2002). Shortly before a number of ``burden reduction
representatives'' in Hengyang demanded a dialog with a school head
concerning tuition and fee increases, they circulated printouts of
their letter of complaint to parents of school children (Int. 18).
Most of these newer technologies are no longer forbiddingly
expensive. Mobile phones can be bought for 200 to 300 yuan
(approximately US$25-$40) and calls run about 60 fen (7 US cents) or
less per minute. Shops that provide word-processing and computer
printing can be found in virtually all county towns and many townships.
The technology that has transformed protest the most is also one of
the most widely available: photocopying. In Hunan, it costs 30 fen (4
US cents) to reproduce a page the size of this one and copy shops can
be found in most township seats. Photocopying not only eases
duplication of central, provincial and city regulations, it also lends
a patina of authenticity and legitimacy to those documents and impedes
crackdowns by officials who previously would have claimed they were
bogus (Ints. 4, 6, 7). In Hengyang, when a deputy township head and the
chair of the township people's Congress attempted to shut down a group
of activists who were reading copied regulations over a loudspeaker and
alleged that they were publicizing phony ``black documents'' (hei
wenjian), several activists challenged them to produce the real or
``red'' (hong) versions. Rebuffed, the officials had nothing more to
say. The protest leaders then immediately announced to the surrounding
crowd that these officials were ``active counter-revolutionaries''
(xianxing fan geming) because they had ``defiled'' (wumie) central
policies (Int. 44).
All these technologies enable adept rightful resisters to reach out
to (and fire up) a mass constituency in a way that was less critical
when they were simply lodging mass complaints and depended largely on
elite allies rather than agitated, disgruntled villagers. Advances in
duplication and communication (with faxes, e-mail, text-messaging, and
the internet not far behind) (Tarrow 1998: 132; on Falun Gong, see
Thornton 2002) also help organizers mount popular action and gauge how
disruptive they can be without crossing into ``forbidden zones''
(jinqu).
POPULAR SUPPORT
In rural China today, there is not much evidence of a ``strategic
dilemma'' where disruption is necessary to draw attention but militancy
reliably alienates the public (cf. Jasper, 2004: 9, 13; Rochon, 1988).
So long as rightful resisters refrain from demanding excessive
donations or harassing free-riders, tactical escalation usually
generates more community approval than disapproval. Particularly in
locations where villagers have become exasperated with the Center's
failure to rectify long-standing wrongs, unconventional tactics do not
undermine the legitimacy of protest and drive away supporters, but more
often lead to comments such as: ``when officials push people to rebel,
people have to resist'' (Int. 45).
Direct, rightful tactics can help a group of activists expand their
base by creating solidarity, forging a collective identity, and
strengthening trust. It is often the case that the more assertive and
enterprising protest leaders are, the more their stature rises--though
popular acclaim does not always translate into active participation in
the next round of contention. As we will see in Chapter 6, interested
onlookers sometimes join protests or become leaders themselves; more
frequently, they offer modest financial support or applaud the actions
of activists whom they have come to respect or even admire. In this
way, although direct tactics establish a ``radical flank,'' they do not
redound chiefly to the benefit of those who employ moderate, mediated
tactics. Instead, they often set in motion a sequence of events where
wary but hopeful spectators (and some new participants) are delighted
to see imperious, corrupt, and abusive local officials get their
comeuppance and even privately egg rightful resisters to ratchet the
level of confrontation up a notch.
The following episode illustrates how the back-and-forth between
protest leaders and their followers can lead to tactical escalation. In
Shandong, an elected villagers' committee director lodged numerous
complaints and even filed a lawsuit against a village accountant who
was the front-man for a corrupt village Party secretary. But the
director could not secure access to the accounts that confirmed the
financial shenanigans of the two men. (To shield their underlings and
themselves township officials had spirited away the account books to
the township office and locked them up). In 2002, with a new election
approaching, the director realized that he might lose, largely because
he had been so ineffective in bringing the Party secretary and the
accountant to justice. His supporters were concerned and urged him to
use bolder, direct tactics. The director demanded a meeting with the
township head, during which he threatened, if he was again prevented
from seeing the accounts, to mobilize his following to occupy the
township office building. The township head relented but only granted
permission to review the books for a single day. The director agreed
but decided to spring a surprise. At the end of the appointed time,
nearly 60 of his supporters suddenly appeared, seized the accounts, and
ran off with them. This incident led the township leadership and the
village party secretary to cancel the upcoming election, thereby
allowing the village director to retain his position. It also helped
the director win back many of his former backers who had been
disappointed with his lack of resolve (Int. 36).
Popular support for direct tactics arises for a number of reasons.
Above all, it derives from widespread frustration with the
ineffectiveness of mediated contention (Int. 4, 5, 6). Of nearly equal
importance, participating in direct rightful resistance, or offering
financial or moral support to those who do so, is not as risky as it
might seem. Since their ham-fisted involvement in suppressing the 1989
protest movement, China's security forces have become much more
concerned with the misuse of force. The police increasingly seek ``to
minimize popular anger through more moderate policing of protests''
(Tanner, 2004: 148) and rely on containment and management rather than
deterrence and quick suppression. This shift has meant that many low-
key protests are permitted to continue (and crowds allowed to
disperse), with little danger to most participants (Tanner, 2004: 148).
Moreover, from imperial days to the present, protest leaders have
always paid the highest price when collective action backfired, while
followers have been protected by their numbers, their relative
anonymity, and the authorities' fear of alienating a broad swath of the
population. In fact, a common outcome has been arrest and imprisonment
of ringleaders followed by concessions on the subject of the
protesters' demands (Bianco, 2002; Bernstein and Lu, 2003; O'Brien,
2002: 150). In some senses, taking part in a demonstration is even less
dangerous than participating in typical mediated tactics, such as
openly identifying oneself by signing or thumb printing a collective
letter of complaint. While direct tactics require considerable planning
and coordination, and place protest leaders in no small jeopardy, they
also often ease the job of amassing and retaining popular support.
WHO INNOVATES?
In many countries, new tactics are associated with new activists
(della Porta and Diani, 1999: 189; Jasper, 1997: 231, 241)--with
successive ``micro-cohorts'' (Whittier, 1995: 56) who enter a movement
often after working in another movement (Meyer and Whittier, 1994; Voss
and Sherman, 2000: 328). Although in rural China we see some of this,
particularly among new recruits who took part in mass campaigns during
the waning days of the Maoist era, our limited evidence suggests that
tactical escalation is mainly the handiwork of seasoned complainants
who have learned new tricks as their abilities, resources and
commitment have grown. In Hengyang, for instance, all 32 protest
leaders on whom we have information had been involved in collective
action for at least 8 years, and all of them employed mediated tactics
before moving on to direct action (on protest in Hengyang in the late
1980s and early 1990s, see Bernstein and Lu, 2003: 187-89; Yu Jianrong,
2003).
Of course, long-time complainants do not always graduate to direct
rightful resistance. Those who do, in Hengyang, have typically been
middle-aged or slightly older men who say they feel boxed in, in that
they have few other options to improve their economic, social or
political position. A number of Hengyang protest leaders who were under
35 years of age simply left the countryside and became migrant workers
after a multi-village, collective complaint in 1996 failed to produce
any relief. Older complainants (like interviewees 4, 5, and 6) however,
could not easily do the same, not least because they often had elderly
parents and teenage children to look after. Some of these men had also
been migrant workers themselves for a time, but were unwilling to
relive the discrimination and exploitation they had experienced (Int.
5). Others had served in the army and found themselves locked out of
the village leadership when they returned home (on veterans and rural
protest, see O'Brien and Li, 1995: 758; Bernstein and Lu, 2003: 148-49;
Yu Jianrong, 2003: 1).\11\ After years of fruitless mediated
contention, most felt they had no alternative to escalation, unless
they were willing to discard their ambitions, their self-respect, and
their hopes for a better life (Ints. 4, 5, 6, 8, 19).
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\11\ Our 1999-2001 survey of 1600 villagers in four counties (two
in Jiangxi, one in Jiangsu, and one in Fujian) (Li, 2004: 244) showed
that both men and army veterans were considerably overrepresented among
rightful resisters. This survey did not distinguish between mediated
and direct forms of rightful resistance.
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Personal, psychological factors also help explain why some veteran
complainants have adopted direct tactics. Most of the innovators we
have encountered are unusually assertive and self-confident characters,
who, for example, enjoyed telling anyone who would listen how much
pride they took in fighting wrongdoing. Along these lines, one activist
in Hengyang said ``I have been combative since I was young and have no
tolerance for injustice and evil'' (Int. 8). Another protest leader
from Hengyang was proud to announce that he ``had been rebelling
against abusive cadres since Mao Zedong was still ruling China'' (Int.
6).\12\ Indeed, several rural organizers even compared themselves to
vaunted Party martyrs and vowed that they would rather die than knuckle
under to unjust and corrupt local officials (Ints. 13, 19, 21; also
Int. 36; Duan Xianju,et al., 2000). One activist from Lianyuan county,
Hunan went so far as to allude to the famous Qin dynasty rebels Chen
Sheng and Wu Guang by claiming that ``kings and generals are not born
to be kings and generals'' (Duan Xianju et al., 2000). These die-hards
not only refuse to retreat, they also have no use for tactics that have
repeatedly shown themselves to be inadequate. For protest leaders with
such hard-charging personalities, disenchantment with mediated
contention only feeds their indignation, brinksmanship, and dreams of
grandeur while boosting their commitment to find a way to do whatever
it takes to prevail.
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\12\ On ``insolent'' protest leaders, see Guo, 2001: 432. On their
persistence and reputation for courage, see Bernstein, 2003: 13.
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That many rightful resisters possess strong personalities and no
lack of self-esteem also means that they are likely to find it
humiliating to let their supporters down. Tactical innovators in rural
China are typically highly attuned to questions of dignity and ``face''
and believe (often correctly!) that they will be mocked as cowards if
they back down after a few setbacks (Yu Jianrong, 2001: 568).\13\ This
is especially true when protest leaders have openly vowed to defend
their neighbors to the end and have repeatedly solicited contributions
from the public to lodge complaints. As time goes by, they often feel
growing pressure to find a way, any way, to deliver at least a portion
of what they have promised. They wish to show that they have the mettle
to stand up to the authorities for as long as it takes and to
demonstrate that their many acts of defiance will ultimately have a
payoff.
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\13\ For rumors that he had been bribed by a county government
leading an activist to begin a campaign of publicizing fee-reduction
policies, see Johnson 2004: 57-58.
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Lastly, architects of direct rightful resistance seem to possess an
abiding faith in the Center's desire (if not capacity) to halt policy
violations. They appreciate better than most that officials up to the
province level are unlikely to redress popular grievances (Ints. 4, 21,
36), yet they continue to say that some leaders at the Center truly
wish to end misimplementation of beneficial measures (see Guo, 2001:
435-37; Li, 2004). In the words of a protest leader from Fujian,
``central leaders share a common interest with people like me, at least
to the extent that they agree that what I'm struggling against also
undermines Party rule'' (Int. 37). Similarly, although an activist from
Shandong repeatedly dodged questions about whether he genuinely trusted
the Center, he insisted that so long as China's President wished to
stay in power, he would need people like him to help control wayward
local officials (Int. 36; also Int. 46). For such individuals,
declining trust in the Center's capacity does not cause a lapse into
passivity; instead, it strengthens their resolve and encourages them to
step up their efforts to assist a besieged and weakened Center.
SOME IMPLICATIONS
Rightful resistance has evolved in rural China. Some long-time
activists, seeing few alternatives and too proud to accept defeat, have
turned to more confrontational forms of contention. Instead of counting
on higher-level patrons to address their claims, rightful resisters and
their followers have increasingly come to demand justice on the spot.
In an attempt to halt policy violations, they have transformed tiny
openings into opportunities to deploy new, more disruptive tactics,
such as publicizing policies, demanding dialogs, and face-to-face
defiance. In the course of doing so, they have exploited the spread of
communications and information technologies, including mobile phones,
photocopying, and computerized printing. Direct tactics, to this point,
have generally not overstepped the Center's sufferance (so long as
protest leaders and their followers stop short of violence and clearly
illegal acts), and they almost always meet with popular acclaim, as
rightful resisters persist, win occasional victories, and keep
trumpeting their willingness to sacrifice all for the interests of the
Party and the people.
These developments have several broader implications for research
on contentious politics. Tactical escalation, it should be noted, has
brought about what McAdam, Tarrow, and Tilly (2001: 144-58) call
``object shift,'' in two different senses. On the one hand, the focus
of rightful resistance has shifted downwards, since direct contention
is usually aimed at lower level officials than mediated contention.
Local adversaries are confronted not bypassed. Protesters give up on
high-level patrons and take matters into their own hands. On the other
hand, rightful resisters sometimes turn on their ineffectual (or two-
faced) advocates at higher levels and attack them. Consider this
example from Hengyang: after a protest organizer's wife (Int. 38) was
beaten by township cadres and several hired toughs, another activist
(Int. 5) led a delegation of villagers to the county to insist that the
perpetrators be punished. At this point, the protesters were employing
mediated tactics because they treated the county as a potential ally
against their township foes. But when the county head summarily
rejected their demands, the activists decided that the county was in
truth a backstage supporter of their antagonists. Instead of proceeding
up a level to the city government (which they still considered an
ally), they decided they would challenge the county itself by setting
up a human blockade on a county highway. As their perception of the
county's stance changed, their tactics had morphed from mediated
contention (aimed at the county, by appealing to it for help) to direct
action (against the county, by blocking the county road). So far,
direct contention has mostly targeted township and village cadres; this
episode shows it can move up the hierarchy, with potentially explosive
consequences (for another example, see Li, 2001: 1-2).
The ``addressees'' (Szabo, 1996) of contention have changed in
another important way. In rural China, the audience for collective
action is broadening well beyond fair-weather friends in officialdom.
Rightful resisters now regularly turn to another third party--the
public. The strategic dilemma that researchers have observed in the
West (della Porta and Diani, 1999: 182-83; Jasper, 2004: 9, 13; Rochon,
1988) can easily be overstated in the Chinese countryside, where
radicalism typically
attracts support rather than chases it away. Many of our interviewees
in fact believe that protest organizers should have acted earlier and
even more dramatically (e.g., Ints. 25, 45). This is a good reminder
that tactical escalation is often as much about building a protest
subculture as winning battles (see Jasper, 1997: 237) and that we need
to peer deep inside protest groups to understand how internal
solidarity is built and collective identities form (see della Porta and
Diani, 1999: 181-82). This implies more attention to recruitment and
leader-group dynamics, and further consideration of the ways in which
tactical choices can ``widen the circle of those psychologically
prepared for mobilization'' (see Rochon, 1998: 162), play a role in
knitting a group together, and ``reinforce affective ties among
protesters'' (Jasper, 1997: 237).
The evolution of rightful resistance also suggests how political
opportunities can figure in tactical escalation. Yes, some sympathetic
officials have provided rightful resisters information about beneficial
policies and assurances that it is safe and
advisable to go beyond lodging complaints (on expanding opportunities
and tactical innovation, see McAdam, 1983: 737; Minkoff, 1999: Szabo,
1996). But far more significant than new openings has been the
inability of protesters to locate allies who will stick with them to
the end. Activists have learned that they must rely on themselves and
their constituency more, both for protection and to prevail. Their
advocates at higher levels have often shown themselves to be virtual
allies at best, and this has altered the costs and benefits of
different forms of contention. Seen in this light, whether
opportunities have expanded or contracted depends on the tactics under
consideration. Tactical escalation in rural China thus hinges less on
whether the system is open or closed (cf. Kitschelt, 1986: 66) than on
which doors are opening and closing. It has not been an improving
political opportunity structure\14\ but a shifting one that has
undermined mediated rightful resistance and promoted direct rightful
resistance.
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\14\ For definitions of ``political opportunity structure'' that
underscore political openings, rifts among elites, elite allies, and
the state's capacity for repression, see McAdam, 1996: 27 and
Tarrow,1998: 71.
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At the same time, tactical innovation requires that skillful
activists seizeavailable opportunities (Jasper, 1997; McAdam, 1983:
737).\15\ Protest leaders may understand or misunderstand their
situation, and then devise brilliant or foolish moves.\16\ In the
Chinese countryside, a growing realization that most of their
anticipated allies are missing in action has demoralized less committed
activists and encouraged more
assertive protesters to search for new, more effective tactics. After
repeated failures, some rightful resisters have developed a new
(perhaps more realistic) appreciation of the political opportunity
structure, and have adjusted their tactics accordingly. Crises,
turbulence and shocks (brought on mainly by defeats), and the response
of activists to them has precipitated tactical escalation (see
Beckwith, 2000; Voss and Sherman, 2000: 341). Through a long and bumpy
process of experimentation, protesters in different locations have
groped their way from mediated to direct contention.
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\15\ On political opportunity structures as ``a system of
permissive incentives rather than of firm constraints,'' see Rochon,
1998: 203.
\16\ Tactics are also chosen partly for psychological, cultural,
and biographical reasons. They express moral visions and identities.
Activists may find some certain tactics enjoyable and others dull.
Protest leaders may have their self-image tied up in being at the
cutting edge. For these and other reasons, tactical choices can diverge
from what an opportunity structure would predict. See Jasper, 1997:
244-45, 301, 320.
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