NYU JILP Symposium: Response to the Commentary on Property Rights, Labor Rights and Democratization

[Jedidiah J. Kroncke is currently Professor of Law, Fundação Getulio Vargas Law School at São Paulo.]

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.

I want to again thank the editors at NYU JILP for their work organizing this symposium, and express my gratitude to Cynthia Estlund, John Ohnesorge, and Eva Pils for their efforts to engage my article. The following only incompletely addresses their many insightful comments.

1) Who Should Promote Legal Change in China?

Professor Pils points to a possible agnosticism in my paper as to who should be advocating for legal change in China. I agree it is crucial to clarify.

Nearly twenty years ago I made my first trip to China as very unworldly teenager. Shortly after my return I had the chance to hear Chinese expat activist Harry Wu speak about his personal experience with and the continued reality of forced labor camps in China. After his talk, I confidently stood and told Wu that China’s progressive economic liberalization would soon bring about an inevitable tide of democratization. As such, his concerns about human rights were inherently ephemeral and shouldn’t undermine unrestrained US economic engagement with China. Wu graciously expressed that he was encouraged that young people in the US were taking such an interest in China. I still look back in half-belief and full-regret at the audacity of my comment that day.

At the time, I imagined my future as one of the US lawyers who would make a career bringing to China this self-gratifying blend of justice and profit. It would take several years before I questioned this faith, and accept the utterly tangential relationship of my intentions to China’s legal development. My turn to anthropology to complement my legal studies stemmed in large part from my desire to understand the continued pervasiveness of misconceptions about Chinese law and US lawyers’ role therein.

I recount this not simply out of contrition, but to make clear that my commitment to critical comparative law is an outgrowth of my firm belief that the true agents of change in China will be its own citizens. Further, more often than not the idea that China can be changed through outside expert interventions obfuscates at best and complicates at worst efforts by Chinese activists to engage with foreign interlocutors or learn from foreign legal experience. [See generally Jedidiah Kroncke, Law and Development as Anti-Comparative Law, 45 Vand. J. Transnat’l L. 477, 544–45 (2012).] In contrast, I believe that a genuine practice of comparative law can be a crucial practical and moral support to Chinese activists and intellectuals to whom we may feel sympathetic. And it is in this spirit that the paper was written.

2) Labor Law and Comparative Development

Professor Ohnesorge’s application of Putnam’s two-level game to the selection of international legal reform projects succinctly clarifies a dynamic I left only implicitly articulated in the paper. It helps drive home the point that whatever rhetorical support is given to democratization internationally and in the US is secondary to other priorities in engagement with China. It also make clears that if there is a foreign sponsored legal reform project in China, it has been judged non-antagonistic to the interests of the CCP, or at least taken as an experiment that can be revoked if later judged to be so. The fate of many once touted foreign funded reform projects have been subject to this dynamic.

Herein I hesitate to embrace Professor Estlund’s claim about the difference between the interests agitating against collective labor rights in China and the US. While unions are associated with the Democratic party in the US, I view both sets of interests as most fundamentally averse to “small D” economic democracy. This is perhaps why I also feel some discomfort with the explanatory power of claiming that China and the US are at difference phases of economic development. Unionization was an issue in the US from the very outset of industrialization, and certainly some economically developed countries continue to have strong unions. I think the commonalities of struggles over economic democracy are fairly universal to all non-subsistence economies.

Even so, teasing out a full comparative analysis of the relationship of unions to economic democracy would certainly require much more sensitivity to Professor Ohnesorge’s critical distinction between public and private sectors unions. My claim about the CCP’s fears about labor activism is grounded in labor’s political potential that is often complicated in the public sector because of its internal position to the regime. However, I am of also wary of Ohnesorge’s descriptive claim that private unionization necessarily undermines export competitiveness, though it potentially dampens the return on capital. Here I can connect Opinio Juris to the greater blogosphere frenzy over Thomas Piketty’s assertion of the growing intensity of r>g.

In the end, what Professor Estlund notes is certainly right – the CCP is observing legal developments in the US labor law and not for reasons we may find flattering. Following this insight, I look forward to the fruits of Professor Estlund’s recent turn to comparative engagement with Chinese labor. [Cynthia Estlund and Seth Gurgel, Will Labour Unrest Lead to More Democratic Trade Unions in China?, in CHINA AND ILO FUNDAMENTAL PRINCIPLES AND RIGHTS AT WORK (ROGER BLANPAIN, ULLA LIUKKUNEN, & YIFENG CHEN, ed., 2014).]

3) The Relative Position of Labor and Property Rights in China

Professor Pils testing of the paper revolves around how I comparatively situate labor repression in China to property rights repression. I regret if my discussion of property rights gives the impression that I do not think expropriation is a very real site of massive injustice in China, or that there is not a great deal of committed Chinese activism and protest in reaction to this. I had hoped that the paper would convey how proactive Chinese citizens have been about challenging injustices on a number of fronts, and historically so, to counteract the still persistent idea that they are comparatively passive or anti-legal. I look forward to the publication of Professor Pils book on human rights lawyers in China [Eva Pils, CHINA’S HUMAN RIGHTS LAWYERS: ADVOCACY AND RESISTANCE (forthcoming, 2014)], and also heartily recommend Rachel Stern’s recent book on Chinese environmental activism. [Rachel Stern, ENVIRONMENTAL ACTIVISM IN CHINA: A STUDY OF POLITICAL AMBIVALENCE (2013).]

Further, Professor Pil’s citation of recent crack-downs on any form of Chinese activism reflects the new CCP administration’s recent inauguration of a systemic campaign against almost all activists such as Xu Zhiyong and the New Citizens’ Movement. In the haze of this crackdown, it can be hard to see any comparative claims of repression as meaningful.

And I certainly did not mean to argue that the CCP is “genuinely supportive of private property rights.” The Party sees property rights in strictly utilitarian terms and subordinate to policy objectives. [The best single paper on the topic is Frank K. Upham, From Demsetz to Deng: Speculations on the Implications of Chinese Growth for Law and Development Theory, 41 N.Y.U. J. Int’l L. & Pol. 551 (2009).] This is exactly why Chinese activists understand that genuine property rights are fundamentally a political issue in the current context.

Yet, I still hold that associative labor activism is most central to the CCP’s fears about political unrest. This is the lesson of Li Wangyang and the Tiananmen aftermath and powerfully articulated in Ching Kwan Lee’s tour de force Against the Law. [Ching Kwan Lee, AGAINST THE LAW (2007).] Pils is correct that the CCP has been willing to force workplace concessions on employers to help quell unrest, and that activists who focus solely on workplace issues without reference to organizing can channel discontent to elicit official responses. But no matter the official mood, no toleration ever has been extended to private union organizing.

This is why I place Chinese developments in the context of the global experience of labor activism that emphasizes the essentially collective nature of workplace organizing. Associative labor rights address the basic structure of ongoing employment relationships that most all citizens are subject to. It is not a denigration, but simply a logistical reality that as widespread as property rights violations are, they are functionally episodic and based on the exclusionary logic of ownership. This is likely why property rights movements have not been to date highlighted as vectors of democratization via sustained movement solidarity. And I should add that activism on environmental issues, another possible source of widespread movement solidarity, has an ambivalent relationship to strong individual property rights.

Moreover, while the CCP’s experimentations with property rights may not be genuine from an ideal rule of law perspective, it does matter that they have taken specific legal form. The granting of long-term leases and the heated debate over their renewal, the formation of homeowner associations, and especially the ongoing issue of “minor property rights” all are real technical legal developments. The CCP could hypothetically abjure all elite and foreign property rights, but these developments still reflect the very real experimental process by which the CCP allows for regulatory diversity even if it ultimately decides to retroactively reject some such experiments.

In contrast, there is no such regulatory experimentation with associative labor rights. There is experimentation with non-associative labor rights, but only those that generate individuated claims. Tim Webster’s study of the limits of employment discrimination activism here is most telling, [Timothy Webster, Ambivalence and Activism: Employment Discrimination in China, 44 Vand. J. Transnat’l L. 643, 692 (2011)] as is Anita Chan’s prescient fear that employment law experiments will in fact sap life from associative labor organizing.[Anita Chan, Revolution or Corporatism? Workers and Trade Unions in Post-Mao China, 29 Australian J. Chinese Aff. 31, 52 (1993).]

The type of union election experimentation Professor Estlund discusses is one such experiment that sits on the razor edge of ACFTU unions as an instrument of government policy or as truly representative bodies. If such experiments prove unruly, the CCP will attempt to shut them down. But there is always a risk to social experiments. If the Chinese people continue to agitate and force a shift in the risk tolerance of the CCP for such reforms, the limits of the CCP’s containment strategy may be reached. Even so, I am happy to be proven wrong if such limits are breached by other areas of social activism, and it is notable that what fear the CCP has of the New Citizen Movement is not its ideas, but is potential for organizing.

4) Where to Go From Here?

The commentators all help demonstrate that there are few global bright spots for collective labor rights today. While hopeful moments can be seen in the US, China, or elsewhere, the truth remains that outside of a few outliers, the de-democratization of global labor regulation shows no sign of decline. [For a hopeful take see Alvaro Santos, Three Transnational Discourses of Labor Law in Domestic Reforms, 32 U. Pa. J. Int’l L. 123 (2011).] And the progress of individual employment rights, however desirable and justified in themselves, are at best tools within larger labor movements but insufficient for generating them.

Professor Ohnesorge’s citation of South Korea speaks to his own many comparative contributions using the Northeast Asian example [John K.M. Ohnesorge, Developing Development Theory: Law and Development Orthodoxies and the Northeast Asian Experience, 28 U. Pa. J. Int’l Econ. L. 219 (2007)], and the variety of configurations that unions can play even in non neo-liberal states. He expands on the arguments in my paper with the provocation that the renewed interest in state-led developmental models might, even in democracies, further complicate the global future of private unions. Developmental states do not tend to accommodate the pluralism and bottom-up bargaining inherent in wide-spread private unionization. Notably, a great deal of the burgeoning literature on comparative takings has also focused on the abuses of state-led developmental regimes. The fact that such regimes are often heralded as an alternative to the Washington Consensus does thus not necessarily establish that they will buck the global trend on labor regulation.

As Professor Ohnesorge also notes, it is not unrelated that I recently left the US to take a position at Direito GV in Sao Paulo, a new school uniquely committed to producing and indigenizing comparative legal knowledge in Brazil. Brazil possesses what many would consider a very strong system of mandatory sectoral union participation and contribution. Yet even after much recent progress, economic and political inequality are pressing national issues. The differences between Brazilian unionization, formally private but quasi-corporatist in operation, with both the US and Chinese models has already challenged my thinking on the relationship of unionization to economic democracy and development. It is a triangulation I am far from coherently working out, but one I hope will continue my growth as a comparativist. Early next year I will participate in a conference on the “Beijing Consensus” at the National University of Singapore by discussing how segments of Brazilian society differentially interpret the comparative lessons of China’s state-led developmentalism – and in doing so almost uniformly elide CCP labor regulation.

I am again very appreciative for the comments and look forward to drawing these insights into my future work. These are thorny topics that inspire great passion, and I am lucky to have had the opportunity to subject my work to such expert scrutiny.