NYU JILP Symposium: Promoting democracy from within: The role of rising civil society in taking on authoritarian government in China

[Eva Pils is currently Associate Professor at the Chinese University of Hong Kong, Faculty of Law and a Non-resident Senior Research Fellow at NYU Law School’s U.S.-Asia Law Institute. Her scholarship focuses on human rights in China, with publications addressing Chinese human rights lawyers, property law and land rights in China, the status of migrant workers, the Chinese petitioning system, and conceptions of justice in China.]

This post is part of the NYU Journal of International Law and Politics Vol. 46, No. 1 symposium. Other posts in this series can be found in the related posts below.

Kroncke criticises authoritarian and post-authoritarian countries’ governments such as the Chinese government, western governments such as that of the U.S., and transnational entities such as the World Bank for selectively promoting the protection of private property rights, while repressing or being indifferent toward the promotion of collectively exercised labour rights, in particular associative rights such as the right to strike. The paper’s main point is that there is an inconsistency in this approach, which Kroncke describes as a ‘promotion paradox.’ He argues that suppression of associative labour rights, which is detrimental to democracy, also occurs in the United States, and that this ‘begs the question of whether we can sustain the idea that political and economic liberty are interconnected.’

The overall argument is persuasive and important. It reminds us that democratic countries can deteriorate and become more authoritarian if they suppress basic rights, and it has implications for certain rule of law promotion initiatives in authoritarian systems. But I have some criticisms. First, I don’t think that the Chinese government is uniquely suppressive of labour rights activism – in fact, there is some reason to believe that labour activism fares better than evictee activism for property rights. Second, Kroncke seems to limit himself largely to observing that there is an inconsistency in the promotion of certain rights abroad without saying clearly that or by whom property, labour rights or democracy should be promoted. The paper could take a clearer position on this point. Third, Kroncke could strengthen his argument by acknowledging that Chinese civil society has long recognised the connection between political and economic liberty.

The basic strands of the prevalent arguments Kroncke identifies and criticises – pro-private-property, anti-labour rights – are associated with utilitarian, consequentialist, economic efficiency considerations. Essentially, the argument is that collective labour rights are bad for economic growth, for instance because they drive up labour costs, whereas private property rights are good for growth, as they help protect wealth and promote its accumulation. Kroncke shows that those purporting to promote democratisation in currently non-democratic countries have used these types of argument to criticise the role of labour rights activism in emerging or developing economies, even as they have advocated stronger protections of private property rights. Authoritarian and post-authoritarian regimes, in turn – China in particular – have been able to accommodate the promotion of private property rights to some extent, because limited protection of property rights does not directly threaten the foundations of their undemocratic rule. Regimes of this kind protect private property in ‘experimental’ fashion.’ By doing so they can secure support from some social groups, which is one reason they maintain power. In China, for example, the property regime has allowed the State to take land from current owners or legitimate occupants , and give newly created use rights in that land to emerging elites. These new rights appear to be relatively well-protected, whereas the rights and legitimate interests of evictees are easily crushed.

Kroncke shows that both strands of the argument constituting the promotion paradox are flawed, in part because they rely on empirically unsupported assumptions about what helps economic growth, and in part because they ignore certain adverse (e.g. unfairly redistributive) consequences of legal reform in their name. They also overlook the importance of labour rights as an aspect of political liberty. Clearly, labour advocates are in a unique position to promote effective strategies for the exercise of associative rights and thereby engage in democracy promotion.

The author’s criticism of those who disseminate the tenets of the ‘promotion paradox’ is therefore well justified, and his identification of ways in which China’s establishment, including officials and scholars, have adapted and used these tenets persuasive. An example is the rhetorical promotion of ‘private property rights’ – propaganda for the 2007 Property Rights Law was steeped in the rhetoric of neo-classicist economic liberalism, including arguments such as that private property rights would ‘allow the poor to get rich.’. Kroncke is entirely right to be critical. He seems also right in observing ‘troubling parallels between the emphasis on employment law and employer self-regulation favored in authoritarian regimes and current trends in U.S. labor law’ – to a bias against labour rights stemming in part from a misinterpretation of American history.

A weakness in the argument is the apparent suggestion that repression of the Chinese labour movement is uniquely bad, compared to the Chinese government’s suppression of other rights advocacy. For example, the 2007 Property Rights Law touted such rights with great fanfare; but its provisions supposed to protect Chinese citizens from unjustified evictions (e.g., a ‘public interest’ requirement) utterly failed to achieve their intended effect. Declarations by groups of rural residents declaring fuller, more genuine land ownership rights at the end of 2007 were swiftly and brutally suppressed. An eviction lawyer called 2010 the ‘worst ever’ year for violent evictions (and there is no indication the situation has improved since). The emerging middle class may feel comparatively well-protected; but large scale evictions and expropriations affect them, too, and their co-optation does not guarantee that the authoritarian power-holders might not suddenly decide that their rights are dispensable, too, as illustrated by recent ‘anti-corruption drives’ (or Party-internal purges) affecting very senior Party-State leaders. From this perspective, authoritarian countries’ ‘experimental’ engagement with law simply reflects their internal inconsistency and the precariousness of anyone’s rights in a ‘dual state,’ no part of which can achieve even ‘formalistic’ or ‘selective’) rule of law, as Ernst Fraenkel argued some seventy years ago.

The scale of evictions and eviction protests remains very great, with land conflicts amongst the most important causes of social unrest While individual labour rights advocacy may co-opt advocates because it is tolerated and effective up to a point, evictees find it hard to obtain access to justice to protect their property and/or housing rights and access to justice, and are generally unable to get their land and homes back. And, while the official, corporatist labour union is constantly challenged by fledgling independent labour rights groups and the ACFTU can sometimes be moved to act on behalf of workers, evictee activism remains scattered. Evictees are not better off because there is no official counterpart to the ACFTU claiming to represent them and seeking to control them. Rather, the Party-State does not even pretend to recognise their right to organise –. Making this point is not to pit evictees as a social group against workers, however, for these social groups are overlapping.

What does this mean for Kroncke’s argument? First, it weakens the claim that authoritarian regimes can be genuinely supportive of private property rights. Propagandist claims that the State respects property rights cannot support the notion that anyone’s property rights can be well protected in a system without respect for fundamental rule of law principles.

Second, Kroncke’s argument could benefit from closer attention to the role of nascent domestic civil society advocacy for private property rights which, despite challenging conditions, stresses private property’s liberty dimensions. ‘The rain may enter, the wind may enter, but the King may not:’ such phrases are popular amongst evictees and their supporters.

Evictees understand that the rights whose protection they advocate are not compartmentalised, but, rather, inherently connected. They know that as long as they are not allowed to express themselves freely, they can have no meaningful legal argument with the State about the extent of their property rights. They are also aware of the direct impact of surveillance, State-centred violence and other forms of persecution on their advocacy efforts. As a result, rights advocates across the board have engaged in more explicit political activism in recent years, as the emergence of the ‘New Citizen Movement’ (新公民运动) from mid-2012 illustrates, with its characteristically specific but diverse demands (disclosure of official assets, equal education rights, etc.).

If transnational civil society has been slow to pay attention to evictee rights activism in China, this points to a discrepancy in concern for labour and evictee rights, which is illuminative and could help extend Kroncke’s argument. From a growth perspective, expropriations, evictions and redistribution of land in their wake is efficient, and it would be difficult to reconcile better protection of evictee rights with neo-liberal economic arguments dominating the global law and development discourse. Like the domestic Chinese discourse, neo-liberal economic discourse seems interested in economic arguments for private property, primarily where they suit a convenient ‘development’ narrative. It seems less interested in the liberty aspects of private property rights, as well as labour rights’ inherent connectedness with other civil and political rights. It is the victims of rights violations in factories and on eviction sites, in detention centres, on the web, in front of government offices and in the streets who best recognise that connectedness. They and their advocates are best situated and most likely to promote democracy in China.