developing a new approach to petitioning within the administrative sector.

1. Institutionalize Shangfang within the
Chinese Socialist Rule of Law Framework
Larry Catá Backer
W. Richard and Mary Eshelman Faculty Scholar & Professor of
Law, Professor of International Affairs
Pennsylvania State University, USA
The author may be contacted at lcb911@gmail.com
Keren Wang
Ph.D. Candidate in Rhetoric and Social Thought, Graduate
Lecturer
Pennsylvania State University , USA
The author may be contacted at kuw148@psu.edu
CPE Working Paper Series
COALITION FOR PEACE AND ETHICS

2. Introduction
The purpose of this paper…
- to discuss the viability of the shangfang (“petitioning to higher authority”)
system within the Chinese historical, political and legal context
- to suggest ways in which shangfang might benefit from further
institutionalization under China’s socialist rule of law and its emergent.
constitutional framework

3. The Basic Outline
- First, examine the emergent “Chinese socialist rule of law”
- what does socialist rule of law mean?
- Its history, theory and practice
- Second, to decide whether there is a place for shangfang within
Chinese socialist rule of law
- historical context, socio-economic causes, key tensions and challenges
- Lastly, look into possible ways to institutionalize shangfang
practices in accordance the socialist rule-of-law framework
- administered in accordance to the constitution, separation of venue, inter-
systematic harmonization

4. Rule of Law – Substantive Functions and Formal
Frameworks
Modern formal frameworks: rule of law and Rechtsstaat
– Rechte (rights) + staat (state)
– Rule of law (Rechtsstaat) the formal framework of constitutional democracy in
Perpetual Peace
– system of rules as applied to disputes
Substantive functions:
– Aristotle, Politics, Book 4: “So many kinds of democracies there are, and the grew out of
these necessary causes.”
– Protection of people’s rights and interests, prevent arbitrary and personal exercise of
power, reproducing stable society, reflect society values and promote social needs…

5. What does “socialist rule of law” mean?
The socialist understanding of the rule of law, in the most basic and general sense,
assumes an interdependent relationship between social progress and legal
development -- that law must be developed in accordance with the evolution of
society as a whole.
- “when cities have far outgrown their original size, and their revenues have
increased, all the citizens have a place in the government… and they all, including
the poor who receive pay, and therefore have leisure to exercise their rights, share
in the administration.” --Aristotle, Politics, Book 4

6. Socialist Rule of Law with “Chinese Characteristics”
The core principle for the Chinese socialist rule of law can be
summarized as “seek truth from facts (實事求是)”
- Derives from CCP’s mass line principle
- Deng Xiaoping stressed the importance of continuously developing updated
understanding of social needs from new social facts.
- by “seeking truth” it implies the duty of the CCP as the vanguard party, of which it must
decide what or how the party ought to listen to its people, and to scientifically develop
those areas that require greater attention in terms of party work.
The Chinese socialist rule of law is also deeply attached to the larger
socialist modernization project
- To attain the kind of prosperity and human development that provides the precondition
for a for a stable rule of law system
- First meeting the basic necessities of the people (溫飽), then achieve a moderately
prosperous society (小康), and finally towards the highly-developed “great harmonious
society (大同)”.

7. Chinese Socialist Rule of Law (cont.)
By “Socialist Rule of Law with Chinese Characters”, the “socialist” part implies
that the rule-of-law system must progress alongside the changing social
needs; whereas “Chinese Characters” emphasizes the need to develop legal
system within the constraints of the specific social and political reality in
which it occurs.
The problem: as the overall standard of living in China improved drastically
over the past thirty years, the basic material needs (wenbao/溫飽) of the
Chinese people have been mostly fulfilled, and new demands of rights and
protections have emerged from evolved social needs.

8. Functionalist Approach to the Problem of Shangfang
In terms institutionalizing shangfang in a rapidly developing Chinese society,
it is important to deal with the most urgent substantive problems at hand
first, even if the method designed to address the problem does not adhere to
pre-ordained formal principles.
– As Deng Xiaoping famously suggested, “It doesn't matter whether a cat is white or
black, as long as it catches mice.”
– If the reforms do remain true to the fundamental principle of “seeking truth from
facts”, one would expect it to be able to evolve in accordance with the needs of
the people, and at the time leading the people towards improved human
conditions.

9. The Problem of Renzhi (人治)
A well-functioning rule of law society must able to suspend
personal discretion and to hold that person accountable by
reference to rules and principles.
– When rules are perceived nothing more than instruments to serve
personal will, we no longer have fazhi (法治 rule of law) but instead renzhi
(人治, rule by personal will)
– The concern of renzhi marks one of the core social tensions underlying the
widespread practice of shangfang.
– The problem of corruption, especially at the local level, and the lack of
judicial independence force petitioners to seek alternative channels to
voice their complaints

10. The Paradox of Judicial Independence in China
One the one hand, the lack of judicial independence in China
undermines its rule of law system
On the other hand, implementing American style judicial
independence would undermine China’s State-Party socialist
constitutional framework

11. Possible Solution
• Provide separate formal venues specifically for shangfang petitions
– Ideally, the venue for shangfang petitions should be separated both horizontally
(not sharing the same interest as the subject of the petition) and vertically (at a
superior level than the subject of the petition) from the respective local
government
– Centrally administered, and centrally appointed officers
– “Circuit” shangfang venues
• Harmonize with CCP discipline and criminal investigation process
– Addressing the need for both protecting the interests of the petitioner and
disciplining corrupt officials
– Distinguish complaints relating to administrative actions (e.g. government land
seizure) and relating to corrupt official behaviors.
– Administrative dispute resolution mechanism for the former, and CCP disciplinary
process (shuanggui) for the latter
– If shuanggui instigation (handled by the CCDI) also reveals potential criminal
liability, the case would be forwarded to the judicial organ for criminal investigation

12. Conclusion
– institutionalization of shangfang provides an excellent participatory
framework where the people, when been damaged by
administrative actions or by corrupt officials, can legally and
effectively voice their concerns and protect their interests.
– This process also serves in cultivating a spirit of civil participation
among the people, which is vital for a stable rule of law system.
– To institutionalize is to embed the shangfang practice within the
socialist system of dispute resolution, party discipline, and criminal
prosecution, so that shangfang becomes a component inter-
systematic legal framework that both accords with the foundational
rule of law principle while sensitive to the unique political and
social conditions of China.

13. Thank you!