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Political Legitimacy and “Charter 08”

June 4, 2009

Teng Biao

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 Teng Biao, a rights defense lawyer, explores these questions, recognizing Charter 08 as a historical document from an emerging Chinese civil society that questions the legitimacy of its government.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.

The attempt to gain “legitimacy” for the regime through economic development is, therefore, doomed to bankruptcy.On the one hand, economic development can only achieve partial “justification.” People demand basic freedom and dignity. Without political freedom, there cannot be complete “justification.” On the other hand, even if the regime did achieve “justification,” this would not be equivalent to gaining “legitimacy.” The legal basis of political power can only originate in genuine endorsement by the people.

3.

To demand that under such a political structure non-elected officials whole-heartedly serve the people and, moreover, protect people’s freedom of expression, is in itself a human myth. No matter how many Jiao Yulus22 or Kong Fansens23 the official media create, when power comes from the top rather than from voters, and when separation of powers and media freedoms are lacking, it is unavoidable that corruption among government officials will spread. The plundering of citizens’ interests and the encroachment on citizens’ rights then too become inevitable demands and the inevitable result of such a system. Under the workings of the totalitarian system, the strength of humanity within the system is often corroded, or, in other words, it is very difficult for those whose hands are clean to gain important positions in the system. The inertia in totalitarian and post-totalitarian systems is huge; because they are built on a foundation of violence, lies, and plunder, there is no way for them to initiate an ongoing dialogue with citizens in the way open societies do, and it is difficult for them to give prompt and effective responses to society’s demands.

Superficially, legitimacy comes from a democracy centered on voting, but in actuality the source of legitimacy is freedom of expression.

In this way, the totalitarian system lacks legitimacy right from the start (there are no elections or endorsement). Moreover, maintaining this kind of rule means it is even less possible to gain legitimacy. To put it another way, Chinese Communists today have neither the desire nor the capability to hold public elections. Citizens’ rights to communication and participation are prerequisites for a healthy system. Superficially, legitimacy comes from a democracy centered on voting, but in actuality the source of legitimacy is freedom of expression. American legal philosopher Lon L. Fuller24 is famous for proposing key factors of legal proceduralism, but he still emphasizes that “openness, maintenance and protection of the integrity of the channels of communication” is the core principle of a substantively natural law. I believe that today we can undertake a workable assessment of the legitimacy of a regime: if it cannot achieve a minimal freedom of expression, the regime has no legitimacy. This standard is superior to that of “whether there is voting or not” because the fraud,manipulation, and brainwashing associated with voting are more difficult to observe and evaluate.

Let us return to the “wife-buying” example. What I want to illustrate is the relationship between justification and legitimacy. B’s purchase of A to be his wife without her consent obviously lacks legitimacy, but this does not imply that B can never gain legitimacy. If B loves and cares for A very much, gives her freedom, happiness, and security, and allows A to leave of her own will, it is very possible that A will recognize B as her lawful husband, and even go through the formalities of marriage. This kind of post-facto sanction gives the marriage of A and B legitimacy. (Of course, this in no way legitimates B’s act of buying a wife.) This is quite possible in reality. But for a regime? Is it possible to imagine that a one-party communist regime built on violence and ideology would give its citizens freedom, happiness, and security in political life, and, furthermore, allow its citizens the freedoms of speech, movement, and travel abroad, as well as lift restrictions on information and association and hold a general election? If the regime could do all this, it could gain citizens’ endorsement at any time and thus resolve the question of legitimacy. And if it could do all this, it would no longer be its original self—it would have crossed the threshold of a free democracy.

4.

Charter 08, published on December 9, 2008, is a historic political document issued by Chinese civil society.25 It declares the necessity of universal values, such as human rights, rule of law, and democracy, and the necessity of systemic change, and puts forth a plan on how to resolve the current political and social crisis. In fact, it proposes the only possible way to resolve the problem of legitimacy. Since the 1989 Tiananmen crackdown on the democracy movement, the global tide of democratization has not subsided. The number of one-party totalitarian regimes has continued to decrease, making China the only non-democratic major power. Against this background, the significance of Charter 08 could only become more apparent with time.

The core of Charter 08 is freedom and human rights, its goal the establishment of a democratic constitutional government, reflecting the fundamental consensus within China’s movement for a civil society regarding the future direction of Chinese politics. Although the Maoist faction is gasping for air, there is little likelihood that it will stir up trouble in either the realm of thought or the political sphere. In 2004, when “human rights” were for the first time written into the Constitution of the PRC, it was difficult for the government to deny the legitimacy of the human rights language, but the current political power structure has no way to guarantee human rights. Whether in theory or in practice, only the political system that Charter 08 proposes to establish can be a system that truly guarantees human rights.

[T]he strength of this document does not actually lie in the number of people who have signed it, but in its content and in the hundreds of millions of citizens who approve this content.

Charter 08 is the concentrated expression of people’s power built up by the democracy movement and the rights defense movement since the late 1970s. As Liu Xiaobo26 said, “The free China of the future lies among the people.” It is primarily civil society and the civilian movement that will decide the forward direction [of the country], not the high echelons of the CPC. More and more people are beginning to emerge from their fear, beginning to speak the truth, and beginning to join the ranks in the fight for freedom. Charter 08 primarily addresses ordinary citizens; it is an appeal to humanity and civil spirit, not an admonishment, plea, or demand to the government. It is, first of all, a citizens’ movement, not simply a political one. And it is also a movement for the long term, one that will accompany the whole process of the realization of democracy in China.

China is poised on the eve of a great transformation. The depth, complexity, and significance of this change can well be described as unprecedented and incomparable. Charter 08 reflects rationally on the major issues that will be confronted during the transformation, such as anti-rightism, land reform, the Great Leap Forward, the Cultural Revolution, Falun Gong, and June Fourth, as well as on ethnic relations and relations between central and local governments, and suggests the principles for solving them.

Though Charter 08 is only a text, a system of discourse, discourse itself has a power that cannot be ignored. The “imagined social construct” it offers will unleash an ideological contest with the Communist Party’s Marxism-Leninism, Maoism, and the Three Represents,27 and the authorities’ bombastic critique of “universal values” can be considered an indirect response to it. Discourse is action, even more so under a regime that suppresses freedom of speech. Look at how many journalists and writers have been imprisoned in China, look at with what trepidation the authorities have treated the signers of Charter 08, and you will know it. The authorities cannot evade the connotations of political legitimacy this document represents; the strength of this document does not actually lie in the number of people who have signed it, but in its content and in the hundreds of millions of citizens who approve this content. As Charter 08 states, “Legality of political power comes from the people.”

On what [grounds] does power base its rule? Why do I comply? As more and more Chinese begin to press this question, the foundations of that rule begin to shake. The dawn of a new system will sooner or later appear on the horizon.

Translated by J. Latourelle

注釋

1. Patrick Riley (b. 1941) is a professor of political philosophy at the University of Wisconsin-Madison. His book,
Will and Political Legitimacy: A Critical Exposition of Social Contract Theory in Hobbes, Locke, Rousseau, Kant, and Hegel, was published in 1982. ^

2. Max Weber (1864–1920), a German political thinker and sociologist, was a seminal figure in establishing the modern field of social science who analyzed the social and political implications of religion and bureaucracy. His most influential works include The Protestant Ethic and the Spirit of Capitalism (1905) and Theory of Social and Economic Organization (1947).^

3. Zhao Dinging [赵鼎新] (b. 1953) is a Chinese-born sociologist currently an associate professor at the University of Chicago. His book The Power of Tiananmen discusses the 1989 Democracy Movement in China and received the American Sociological Association’s Outstanding Book Award in 2002. He has also written on state power and legitimacy in ancient and modern China. ^

4. Hannah Arendt (1906–1975) was a Jewish political philosopher whose family was forced to flee Nazi rule in 1933.Her book, The Origins of Totalitarianism (1951), was a study of the Nazi and Stalinist regimes, their historical origins, institutions, and operations.^

5. Seymour Martin Lip set (1922–2006) was an American political sociologist. His book, Political Man: The Social Bases of Politics (1960), analyzed the conditions for democracy.His empirical observations drew a strong causal relationship between economic development and democracy. ^

6. Samuel Huntington (1927–2008) was an American political scientist best known for positing that cultural and religious identity divided along civilization al lines would be the primary sources of conflict in the post-Cold War world. His book, The Third Wave: Democratization in the Late Twentieth Century (1991), discussed the “third wave” of democratization that occurred between the 1970s and 1990s. ^

7. A. John Simmons is an American professor of philosophy and law at the University of Virginia. His book, Justification and Legitimacy: Essays on Rights and Obligations, was published in 2001. ^

8. See Reporters Without Borders, China—Annual Report 2008 (December 30, 2008), http://www.rsf.org/country-50.php3?id_mot=88; Committee to Protect Journalists, “CPJ’s 2008 Prison Census: Online and in Jail,” December 4, 2008, http://www.cpj.org/imprisoned/cpjs-2008-census-online-journalists-now-jailed-mor.php. ^

9. The Gini index is a measurement of a nation’s income inequality. If a nation’s Gini index is zero, then every citizen of the nation earns the same amount of income. A value of 100 indicates that all income has been earned by a single individual. The index is provided by the World Bank. ^

10. Richard Macgregor, “Data Show Social Unrest in China On the Rise”, Financial Times, January 16, 2006, http://www.ft.com/cms/s/0/171fb682-88d6-11da-94a6-0000779e2340.html. ^

11. Institute of Sociology, Chinese Academy of Social Sciences [社会学研究所,中国社会科学院], “Shehui zhuanxingqi de Zhongguo nongcun tudi chongtu fenxi” [社会转型期的中国农村土地冲突分析] , April 2, 2009, http://www.sociology.cass.cn/shxw/zxwz/t20090402_21131.htm.
^

12. In October and early November 2004, tens of thousands of villagers from the Hanyuan Reservoir area in Sichuan Province protested over forced relocation policies undertaken to make way for dam construction. As many as 10,000 soldiers were reportedly deployed against the protesters, and several people, including two police officers, were reported killed. ^

13. On June 11, 2005, hundreds of men armed with shotguns
and pipes attacked a group of farmers in Dingzhou,
Hebei Province, after they refused to surrender land to a
state-owned power plant. Six farmers were killed and
nearly 100 seriously injured.
^

14. On December 6, 2005, residents of the town of Dongzhou
in Guangdong Province who were reportedly armed with
knives and homemade bombs clashed with police, who
are believed to have fired live bullets into the crowd.As
many as 20 people are reported to have been shot.
^

15. On July 13, 2006, large scale riots broke out between police and villagers defending their land-use rights in Wanyuandian township in Lingyuan, Liaoning Province. Several dozen villagers were hurt and hospitalized, while a few were arrested by the authorities and charged with violently resisting the law and obstructing public affairs. ^

16. On January 18, 2007, villagers in Nanhai Sanshan Development Zone in Foshan, Guangdong Province, clashed with nearly a thousand public security and armed police officers. Dissatisfied with the government’s compensation for the requisition of their land, villagers put up tents to defend their farmland and prevent developers from starting construction. ^

17. On June 28, 2006, over 10,000 people in Weng’an, Guizhou Province, participated in a protest against police protection of culprits in a case of a girl drowning, which turned violent. The public security bureau, police cars, and government buildings were set on fire. ^

18. On July 19, 2008, rubber plantation workers and the police clashed in Menglian, Yunnan Province, resulting in at least two deaths. ^

19. On September 4, 2008, large-scale protests broke out in Jishou,Hunan Province. The protesters blocked streets around the city center and government buildings, and clashed with the police. Some people were hurt during the conflict and some were taken away by the police. ^

20. On November 17, 2008, members of evicted households, who were collectively petitioning government authorities in Longnan, Gansu Province, clashed with police. Over 60 people were hurt in the incident. ^

21. On March 14, 2008, riots occurred on the streets of Lhasa, the capital of Tibet. After the Chinese authorities dispatched large numbers of military police to violently suppress
peaceful demonstrations by Tibetan monks, the
demonstration became a bloody large-scale conflict
resulting in numerous deaths.
^

22. Jiao Yulu (1922–1964), from a small mountain village in Zibo Prefecture, Shandong Province, became County Party Secretary of Lankao,Henan Province. Having been highly praised by the CPC for his revolutionary spirit of working for the party and the people, Jiao Yulu became a nation-wide model for party cadres after his death. ^

23. Kong Fansen (1944–1994), of Liaocheng, Shandong Province, was Vice Mayor of Lhasa and Prefectural Party Committee Secretary of Ali Prefecture, Tibet Autonomous Region. After his death, CPC leaders gave top marks to his work and contributions in Tibet. The Organization Department of the Central Committee of the CPC post-humously awarded him with the titles of “Exemplary Communist Party Member” and “Outstanding Leading Cadre.” ^

24. Lon L. Fuller (1902–1978) was a legal philosopher and professor of law at Harvard University.He discussed the relationship between law and morality in his book The Morality of Law (1964), which outlines ways in which a legal system can fail. ^

25. Charter 08 is a petition calling for sweeping political change in China, including an end to one-party rule and the realization of an electoral democracy, freedom of speech, and greater social equality. It was released on December 9, 2008, the anniversary of the Universal Declaration of Human Rights, with signatures from 303 Chinese citizens ranging from peasants to prominent intellectuals to government workers. Since then, over 8,400 people have added their names to the petition. ^

26.Liu Xiaobo (刘晓波) is an independent intellectual and the president of Independent Chinese PEN Center. Liu has been detained since he was subpoenaed by the Beijing police on December 8, 2008, in connection with his signing of Charter 08. ^

27. In February 2000, CPC General Secretary Jiang Zemin pointed out that as the vanguard of the Chinese working class, the CPC has always represented the development trend of advanced productive forces, the orientation of advanced culture, and the fundamental interests of the overwhelming majority of the people in China (namely, the “Three Represents”) during various historical periods of revolution, construction, and reform. See “The ‘Three Represents’ Theory,” Xinhua News Agency, June 25, 2001, http://news.xinhuanet.com/english/20010625/422678.htm. ^

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