[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

                               __________

 Printed for the use of the Congressional-Executive Commission on China


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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

                              ----------                              
                                                                   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

                              ----------                              


                         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).
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \12\ On ``insolent'' protest leaders, see Guo, 2001: 432. On their 
persistence and reputation for courage, see Bernstein, 2003: 13.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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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