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·The State of Human Rights Lawyers in China
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Political Legitimacy and Charter 08


   Teng Biao
   
   China Rights Forum 2009
   

   http://www.hrichina.org/public/contents/article?revision%5fid=169465&item%5fid=169464#bk27
   
   
   What establishes a regime’s legitimacy? How can it justify its rule without the explicit consent of the people or their political participation? Can an improved standard of living for the people of China alone solve the question of legitimacy for the Communist Party of China? And for how long? Teng Biao, a rights defense lawyer, explores these questions, recognizing Charter 08 as a historical document from an emerging Chinese civil society that questions the legitimacy of its government.
   1.
   Is the existing system ethical? On what [grounds] does power base its rule?Why do I comply? These are core propositions in political studies and questions that humanity, that political animal, never ceases to press. The answers to these questions touch upon the concept of political legitimacy. As we evaluate phenomena such as identity, resistance movements, system change, and human rights violations, we cannot escape this concept.
   
   Legitimacy is something political systems do well to acknowledge. The concept has developed throughout history.As distinguished by Patrick Riley,1 from the 17th and 18th centuries on, the foundation of political legitimacy is no longer built on “patriarchy, theocracy, divine right, the natural superiority of one’s betters, the naturalness of political life, necessity, custom, convenience, psychological compulsion or any other basis,” but must be based on consent, sanction and voluntary individual behavior. Under the impact of modernity, the only source of legality for a regime nowadays is the endorsement of its power through methods such as elections and voting.
   
   Max Weber2 theorizes three bases of human obedience: habit, emotion, and rational calculation; and correspondingly, three types of legitimacy: traditional, charismatic, and legal. Zhao Dingxin3 believes that legitimacy is a dynamic relational concept. He bases this on popular and elite perceptions of national legitimacy, dividing legitimacy into the legal-electoral type, the effective performance type, and the ideological type. This gives rise to the question of whether economic development, social stability, improvements in people’s livelihood, and other [measures of] regime performance can bestow legitimacy on a regime that has never experienced a democratic election. Is legitimacy based on past [performance] or does it have a future orientation?
   
   Hannah Arendt,4 in her On Violence, was the first to draw a distinction between legitimacy and justification. Similarly, in his Political Man, Seymour M. Lipset5 distinguished legitimacy and validity; in The Third Wave, Samuel Huntington6 distinguished performance legitimacy from procedural legitimacy; and A. John Simmons7 made an even clearer theoretical distinction between legitimacy and justification. Consider a hypothetical case: Woman A is sold to B as a wife by a trafficker in human beings. Suppose that before her marriage A was looking for a mate. Suppose further that B is very kind to A and that A feels he is a model husband. Can we then say that his action in buying a wife has legitimate? First, “legitimacy” is concerned with the origins of power: B, in the absence of A’s consent, has no legitimacy. Second, B’s action is good for A, and is in fact what A needs, and is thus rational or “justified.” But such justification cannot be retroactively converted into “legitimacy.”
   
   2.
   Ever since its establishment in 1949, the Chinese Communist regime has been facing the issue of legality. Beginning with the 1954 Constitution of the People’s Republic of China, all the preambles to the Constitution were in fact various kinds of declarations of its legitimacy. They reviewed historical events and summed up the laws and objectives of history in order to establish legitimacy of Communist Party of China (CPC) rule. This sort of crudely simplistic method of dealing with history was nothing but an attempt to establish legitimacy [based] on the natural superiority of certain exceptional organizations (the vanguard of the proletariat) and certain historical inevitabilities (the inevitable appearance of communism), but actually none of this could cover up Mao Zedong’s plain statement that “Political power comes out of the barrel of a gun.” Even if their descriptions and elucidations of the events in modern Chinese history were true and neutral, they still had no way of inferring the laws and objectives of history. The barrel of a gun may be able to produce political power, but it cannot produce its legitimacy.
   
   The barrel of a gun may be able to produce political power, but it cannot produce its legitimacy.Doomed to lack legitimacy, a totalitarian system can only rely on violence and ideology, on one political movement after another, and on the mobilization of the entire population to maintain its rule. This type of rule experienced a crisis in the late 1970s, when the authorities had no other option but to embark on moderate reform and opening up of the economic and social sphere to ease the crisis and attempt to re-establish “legitimacy.” Rulers are convinced that as long as the economy soars and the people’s standard of living continues to rise, they can gain acceptance from the people, continue to suppress freedom and human rights, and continue to maintain a one-party dictatorship. As illustrated [by the example] above, even if the basic human rights were guaranteed and the people’s standard of living had risen, the rulers would achieve “justification” at the most, not “legitimacy.” When there is only lame economic reform that does not touch on the political, not only is there no guarantee for the basic human rights, but the economic and social sphere will be faced with increasingly serious problems as well.
   
   In the late 1970s, there was the policy of openness; in the mid 1990s, it was the socialist market economy. During the past 30 years the economy has indeed made great strides and the standard of living for the majority of the nation’s people has risen remarkably. But there have been no achievements to boast of when it comes to the political system. To this very day, China continues to practice strict one-party dictatorship. Forming associations of a political nature is strictly forbidden. There are no independent trade unions or peasant associations. There is no freedom of assembly, no freedom to hold protest marches, demonstrations, or strikes. There is no freedom of information, and expression of political views is subject to prior vetting. China ranks first in the world in the number of those convicted of speech crimes.8 There is no judicial independence; the Chinese Communist Party controls trials of important cases. There is no freedom of belief; house churches and other religious groups are suppressed, and Falun Gong has been designated a cult and subjected to exceedingly brutal persecution. There is no freedom of movement; the household registration system has turned farmers into second-class citizens. There is no universal suffrage; even the village committee and township elections were run by the government and the corruption was rife. The administration of finance is not public; taxpayers have no oversight of finances. The military does not answer to the state; the Party firmly controls the army. There is widespread violation of human rights, and dissidents, rights defenders, petitioners, and ethnic minorities are subjected to an even greater systematic suppression.
   
   Economic achievement is a superficial phenomenon. To begin with, such development has actually been based on the uncontrolled plundering by powerful officials, creating a huge gap between the rich and the poor and social inequity, a growing sense of deprivation among the people, and aggravated dissatisfaction toward government officials and toward the entire system. The 2006 World Bank report stated that 70 percent of China’s wealth was controlled by 0.4 percent of the population. Annual incomes among the specially privileged official strata are 8–25 times those of the average income of urban residents, and 25–85 times those of local farmers. Upwards of 90 percent of multimillionaires are the sons and daughters of high officials. The Gini coefficient for China long ago exceeded the internationally recognized warning line,making China the nation with the widest gap and most seriously inequitable distribution between rich and poor.9 Furthermore,minimizing human rights and minimizing guarantees is a tactic of economic development, and what the soaring economy has brought in its wake is a proliferation of wrongful imprisonment, an accumulation of grievances among the populace, and the inability of the broad masses of farmers and migrant workers to share equally in the fruits of social progress. Land appropriation and relocations, miscarriages of justice, [forced] birth control, etc., have kept the number of petitions for government redress at an all-time high. The number of mass incidents is rapidly rising: from 58,000 in 2003 to 74,000 in 2004, to a high of over 87,000 in 2005.10 The official number for 2006 was 73,000, but the actual number was, I’m afraid, higher.11 The scale and impact of mass incidents is also on the increase. For example, the Hanyuan incident in Sichuan in 2004;12 the Dingzhou murders in Hebei13 and Dongzhou murders in Shanwei Prefecture, Guangdong14 in 2005; clashes between police and people in Lingyuan, Liaoning in 200615 and Foshan, Guangdong in 2007;16 and clashes with officials in 2008 in Weng’an,17 Menglian,18 Jishou,19 and Longnan,20 as well as the March 14 incident in Tibet21 that reverberated around the globe. Finally, uncontrolled plundering by powerful officials has caused serious damage to natural resources, rapid worsening of the environment, and a decline in social morality. Political fear, education that keeps people ignorant, and consumerism have resulted in a prevalence of insensitivity, indifference, and cynicism, while knowledge, culture, and art have suffered.

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