China Photos, via Getty Images

Despite Warnings, China’s Regulators Failed to Stop Tainted MilkBy Jim Yardley and David BarbozaPublished: September 26, 2008 China Photos, via Getty Images The tainted-milk crisis has devastated China’s dairy industry. Farmers in Hubei Province poured out milk they could not sell.

Tainted milk scandal • Media control • Editor at Southern Weekend (南方周末）reveals prohibitions on publishing tainted milk story before the Olympics • What does this mean for “thick” rule of law? (stay tuned)

Tainted milk scandal • Personnel control • Sanlu Group • Hebei Province Communist Party appointed the company’s chairperson, who was also a party official. • What does this mean for corporate governance?

Tainted milk scandal • Politicization of institutions • Ministry of Health • Gansu Provincial Health Bureau reports not investigated • Did the Ministry of Health violate any law?

“China milk victim lawyers say pressed to quit,” Reuters 9/28/08 • “Local rights advocates and lawyers have mobilized to support families seeking redress, possibly by suing dairies or officials who failed to disclose the problem.” • “Chinese lawyers…are facing growing official pressure to abandon efforts [to seek redress], blaming growing government sensitivity over the health scandal.”

Introducing “rule of law” • Rule of law vs. rule by law • Thin vs. thick conceptualizations of law

Introducing “rule of law” • Rule by law • “Law exists not to limit the state but to serve its power (Carothers)” • Ruling elites are “above the law” (not subject to law) • Ruling elites use law instrumentally to control the polity, society, economy

Introducing “rule of law” • Thin rule of law  minimal • Laws are public, consistent, capable of being enforced • Ruling elites are not “above the law”

Introducing “rule of law” • Thick rule of law  maximal(Carothers, Democracy & Rule of Law Project at the Carnegie Endowment) • Laws are public knowledge, clear in meaning • Political leaders are equally subject to law • Judiciary is independent • Institutions and personnel are competent • Citizens enjoy • civil and political rights • right of Habeas Corpus (court decides legality of detention/imprisonment) • presumption of innocence • Democracy? • Capitalism?

Introducing “rule of law” • How does Peerenboom characterize the Chinese legal system?

Follow up from last class • Discussion of Chinese law • Penal in nature—oriented toward punishment • Not designed to protect individual rights

Confucianism • “li” 礼 • Correct performance of Confucian ritual • Rules of proper conduct for social relationships • “Etiquette” (gentlemen master “li”) • Everything that makes for harmony • Customary cultural norms • Chaos/disorder • comes from failure to live according to “li”

Confucianism • Ideal • Government based on virtue (de, 德) and ritual/customary norms of social conduct (li, 礼) • If people were cultivated through ritual (li), then an ideal society could be created on the basis of virtue (de). • The state is the extension of the family • Confucian “3 bonds and 5 relationships” Ruler:minister Father:son Husband:wife Elder brother:younger brother  Friend:friend • Five Tenets of Confucius: ruler should be a sage/moral exemplar 仁义礼智信 rén yì lǐ zhì xìn Benevolence/humaneness, uprightness, propriety, wisdom, trust

Confucianism • The state is the extension of the family • Confucian “3 bonds and 5 relationships” Ruler:minister Father:son Husband:wife Elder brother:younger brother  Friend:friend • Five Tenets of Confucius (ruler should be a sage/moral exemplar of the following) 仁 rén  benevolence/humaneness 义 yì  uprightness 礼 lǐ  propriety 智 zhì  wisdom 信 xìn  trust

Confucianism 1. Man is, by nature, good • But needs cultivation • Goal is to internalize Confucian norms—not punish “Li forbids trespasses before they are committed, whereas law punishes criminal acts after their commission.” • Moral education is first priority in maintaining social order 2. Government should be based on virtue • Emperor, gentleman should be moral exemplars • Ruler should be a sage who takes • Benevolence (ren) • Social righteousness (yi) • As basis for government

Confucianism 3. Li is valid because it was created by “intelligent sages of antiquity” (Bodde and Morris 1967:21) 4. Performing one’s duty in accord with one’s status in the hierarchy is key to achieving harmony five relationships of Confucianism  status matters, circumstances matter Ex: Murdering one’s parents is worse than murdering someone else Ex: use of torture for commoner but not elite

Confucianism • Emphasis on mediation • “Li” allows for interpretation based on the situation • laws not public, because would encourage people to • manipulate the system • i.e., follow the letter NOT the spirit of the law • Laws are no better than the men who create them  so morality of ruler is key

Legalism • Men (people) are inherently self-interested  only by playing on self-interest can state elicit compliance;  state must therefore set up a system of rewards and punishments ● harshly punish anyone who breaks the rules harsh punishment is a deterrent ● give officials very specific responsibilities reward those who fulfill them punish those who do not 2. Goal: state control over subjects

Legalism 3. Law should be • Public • Codified • Applied to everyone (except the ruler himself) “The ruler creates the law; the ministers abide by the law; and subjects are punished by the law.” Critique of fact that “li” are unwritten, particularistic, and subject to interpretation 4. Good rules can compensate for a weak ruler

Huang-Lao School of the Han Dynasty • Why does Peerenboom introduce this? • Common to confuse “li” with a kind of natural law • Traditional reference to restraint on ruler • Ultimate authority not with ruler but with the Dao/Way 道 • Law also applies to ruler • Apply law not interpret it (Peerenboom) Contrast: Confucian mandate of heaven (天命)

Law in practice • Elements of both Confucianism and Legalism • Codes

Law in practice • District magistrate—not specialized • Prefect (zhou) has Bureau of Punishments • No private legal profession • Societal enforcement of norms • Clan • Guild • Gentry (define) • Inculcate norms • Mediate disputes • Impose discipline, sanctions

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