The Expression of Justice in China, Flora Sapio, Susan Trevaskes, Sarah Biddulph, and Elisa Nesossi

China has arguably one of the oldest justice systems in the world, but its concept of justice has undergone significant changes since the rise of Communism in the twentieth century.

Claims about a strident pursuit of justice weave through all of China's modern history. The intellectual, political and social ferment that exploded on to China's political stage on 4 May 1919 was motivated by a common will among the intellectual and political class to find a proper place for China among the family of nations. Pursuit of justice underpinned this movement, as it did the establishment of the Republic of China (ROC) eight years earlier. Communism was cultivated in China in the 1920s replete with a political vocabulary that was indebted to liberal and democratic political philosophies as much as it was to communist ideology. Here too, it was the ideal of attaining justice for the populace that prompted popular reaction to the inequalities, corruption and violence endemic in the ROC from the 1920s to the 1940s. This quest drove the civil war and the foundation of the People's Republic of China (PRC) in 1949. Over the course of the revolutionary era in the 1930s and 1940s, ideas put forward by some leading theorists and activists of the Chinese Communist Party advocating for a more democratic-liberal socialism were suppressed and eventually wiped out, while Maoist discourse became progressively privileged.

The launch of successive waves of ideological reform during the years before establishment of the PRC obeyed a certain political logic that forced some notions of justice out of the political picture while privileging others. And after the PRC's establishment in 1949, efforts to achieve what Party leaders articulated as a just society drove the mass campaigns that were launched in the 1950s and 1960s with varying fortunes. From 1949 to 1976, Maoist ideology imposed itself as the alternative to an indigenous and trad­itional moral code. But the demise of Maoism in the late 1970s unveiled a moral abyss that threatened to swallow the nation. The promises of the Four Modernisations, the adoption of repressive social control strategies to contain crime and spiritual pollution, and the formulation of twenty-first-century political agendas such as Harmonious Society and the China Dream have done very little to fill this moral void, or to offer a credible explanation for the idea of justice in modern China.

With this underlay of historical antecedents, how are dominant notions of justice conceived and sustained in China today? Here, we are not seeking to address a philosophical issue. The main question pursued in this book is not what constitutes justice in relation to contemporary Chinese moral philoso­phy or political philosophy strictu sensu, but how certain ideas about justice have come to be dominant in Chinese society and rendered more powerful and legitimate than others. This focus on the interrogative “how” also incorp­orates a second and equally important question about how even the most powerful political ideas about justice can be challenged in an environment that does not favour, indeed actively rejects, political pluralism. In short, our aim in this book is to investigate the processes and frameworks through which certain ideas about justice have come to the political and social forefront in China today, and to explain how these ideas are articulated through spoken performances and written expressions.[...]

Operations and processes to administer justice in China are highly instru­mental in both nature and purpose.

Justice practices and operations perform an expressive function that can - and usually do - shape social attitudes and acceptance of certain political or social agendas. With this recognition, the idea of expressive justice has been studied in the fields of law and criminology outside China for decades. Yet little has been written about the utility of this conception for exploring Chinese justice. Socio-legal and justice scholars focusing on Western juris­dictions have long argued that legal and judicial institutions create and sustain images of power and authority through the dissemination of ideas and prin­ciples that they announce and perform in routine everyday practice. In the criminal justice field, for instance, leading scholars have long recognised the expressive capacity of justice practices as conduits that organise, classify, and construct images and messages about law and authority. David Garland, for instance, argued more than two decades ago that the penal system “acts as a regulatory social mechanism in two distinct respects: it regulates conduct through the physical medium of social action, but it also regulates meaning, thought, attitude - and hence conduct - through the rather different medium of signification”. Studies in the field of law such as Sarat and Kearns¹ and Ericson^{[119] [120] also argue that law and justice practices have both a routine instru­mental role and a performative role.}

But it is not only party-state functionaries who perform justice. Those who challenge the party-state's claims to dominance over creation and mainten­ance of concepts of justice are also performers here through their social action. Some engage in the performance of justice through scholarly argu­ment or social media commentary. Others engage in public protest, usually collectively pursuing in public what they perceive is lacking in Chinese society or is owed to them by society or state. People who protest against what they perceive to be injustice often draw from traditional ideas and concepts such as petitioning and other actions to demand that injustice is ceased and remedied. They reference traditional Chinese notions of “injustice” (yuan) that are well-known across Chinese society. Performing acts that draw atten­tion to yuan is a way to increase the cogency or legitimacy of their protests. Images of protestors kneeling and begging for justice, or carrying placards adorned with the Chinese character yuan are obvious examples.

Since 1979, the party-state has advanced the goals of raising the people out of poverty; building a more inclusive society; achieving social harmony, sustainable economic growth and national development centred on the person; as well as achieving and maintaining regional and global hegemony. Each of these goals has been articulated and popularised through a corres­ponding political programme ranging from late twentieth-century agendas such as the “Four Modernisations” and Deng Xiaoping's “Rule of Law”, to early twenty-first-century agendas such as “Harmonious Society”, “Stability Maintenance” and the “China Dream”, and Xi Jinping's more recent “Rule of Law” agenda. These agendas may differ in focus, but a singular “red” thread underlies them all: the idea that individuals, society and the nation ought to be given what they are due. The thread is “red” because the party-state is recognised as responsible for arranging this giving.

At different points in the history of the PRC, “what they are due” has been variously understood in relation to what the Chinese polity and society has lacked: material security, political representation, an unpolluted environment or the respect of other nations. In this context, justice is expressed at its most basic level as a way of giving to each what they are due or giving to each what they deserve. This notion holds not only in Chinese tradition but also in ancient and modern Western thought. Its silence on agency - who/what should identify what/how much is due or deserved - is highly problematic and politically convenient. In China, as a minimum common denominator, this notion lies at the heart of party-state policy agendas, slogans and buzz­words. The party-state uses the popular understanding of “what is due” in articulating its role as provider of justice and protector of society from injustice and inequality in order to give the populace what is perceived as their due. It has sought to fulfil its protective role by striving for the goals of raising the people out of poverty; building a more inclusive society; achieving social harmony and a sustainable economic growth.

The party-state also has other roles in the enactment of “what is due”, beyond providing what (it considers) is due to the people. It is instrumental in identifying and determining this “due” for the people and in both deter­mining and seeking to obtain its own due. What is determined as the party­state's own due - what its leaders identify as party-state prerogative - is the authority to define the scope and means to effectively realise its protective role over society and to create its own narratives to justify the choices it makes in performing this role. For instance, Article 33 of China's Constitution sets out the principle of mutuality of rights and duties, which inscribes the insepar­ability of the people's rights from their duties prescribed by the Constitution and other laws. As a condition of bestowing rights to citizens, the party-state is due certain duties and obligations from citizens. In this political logic, the party-state is due the right to govern in a socially stable environment. It can therefore justify withholding the rights of people, such as their freedom of expression, when they do not give the party-state its due. That is, the party-state has the faculty to bestow rights on citizens in the first place. The rights around leading a good life are promised by the party-state, and the ability to keep to this promise forms the basis of political legitimacy. The ability to bestow rights entails the possibility to withdraw the rights of citizens when they do not provide the state a socially stable environment in which to govern, such as by creating social disorder or failing to respect the authority of the party-state to dictate who is due what in society. The granting of civil and political rights was never part of the party-state's promise, therefore any accommodation made to allow individuals to express their voice should not be considered as a �natural' exercise of their rights.

The party-state dominates and jealously guards the political space around which this dominant political logic about justice is based. One way that it does so is by establishing and supporting certain notions of justice through discur­sive frameworks that help to shape and sustain particular political and legal values. Discourses are an enabling device, giving capacity for state functionar­ies to govern and respond to economic and social change in different ways for different purposes: from responding to threats to state and society, to providing legal frameworks for political oversight of power. Across the three decades of post-Mao China, the rise and fall of key justice operations and processes ranging through diverse practices from anti-crime campaigns to civil medi­ation have been maintained by legitimating discourses based on political agendas that have their foundations in a number of philosophical traditions, the most dominant being socialism.

Institutions involved in administering justice articulate their roles and responsibilities through key narratives that rationalise political choices in terms of not only the party-state's protective role over society but also what individuals within society deserve as their due. The party-state's current leading criminal justice discourse exemplifies this well. “Balancing Leniency and Severity” (kuanyan xiangji) was introduced into the prevailing Harmonious Society discourse in the mid-2000s and remains dominant today in the Xi Jinping period. It has since been elevated to the status of China's leading and “foundational” criminal justice policy. Balancing Leniency and Severity encompasses a myriad of criminal justice practice and nowadays is even a practising discourse in prison organisation. Its premise is: “When leniency is due, let leniency be given; when severity is called for, let severity be used” (dangkuan zekuan gaiyan zeyan). This is a commonplace saying with origins in the classics and in imperial codes. The saying recurs in legal documents enacted throughout the last six decades, albeit until recently, under the rhetorical auspices of the policy of “Combining Punishment and Leniency”. This is also the meaning coded in contemporary political speeches by Xi Jinping. We see that the opening of this saying reaches straight for the familiar legitimising concept of “what is due” (here latched to the notion of leniency).

Entire political programmes in China seek to legitimise the understanding that the party-state has the authority to determine who in society is to be given their due, what is owed to each person, and how what is owed to them differs according to an individual's status, conduct and other variables. For instance, the Stability Maintenance programme in the Hu Jintao era had as its underlying logic the idea that members of society have an obligation to the state to behave in ways that do not create social instability. Citizens “owe” the party-state this due since the party-state needs a high degree of stability to successfully fulfil its protective role over society and provide a basis for the success of economic reform and development. Discursive frameworks like Stability Maintenance, especially those that seek to legitimise state-sponsored justice practices, enable authorities to rationalise the choices functionaries make about law and order. We see this in the policing practices of the Stability Maintenance period in the Hu Jintao era and in Xi Jinping's party-led rule of law today.

These frameworks derive their vocabulary from socialist ideology as well as from areas outside the discursive boundaries of socialism. It is not controversial to suggest that the legitimacy of the PRC and its legal system today rest largely upon the success of the nation's economic marketisation programme. Therefore, the language of the market is a crucial legitimising tool for state actions across the full spectrum of governance including the organs of justice administration. For instance, studies such as Michael Dutton's work on policing and contractualisation point to the prevalence of managerialism in the contem­porary policing lexicon in the r990s and early 2000s. More recently, market- isation trends have induced an even stronger emphasis on social management. The party-state, not unlike other state entities, has favoured adopting key performance indicators in justice administration, which portray a notion of justice administration as a product of bureaucratic efficiency.

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