Contesting Legality in Authoritarian Contexts: Food Safety, Rule of Law and China's Networked Public Sphere

DOIhttp://doi.org/10.1111/lasr.12153
Published date01 September 2015
Date01 September 2015
Contesting Legality in Authoritarian Contexts: Food
Safety, Rule of Law and China’s Networked Public
Sphere
Ya-Wen Lei Daniel Xiaodan Zhou
Since the introduction of the Internet, China’s networked public sphere
has become a critical site in which various actors compete to shape public
opinion and promote or forestall legal and political change. This paper
examines how members of an online public, the Tianya Forum, concep-
tualized and discussed law in relation to a specific event, the 2008 Sanlu
milk scandal. Whereas previous studies suggest the Chinese state effec-
tively controls citizens’ legal consciousness via propaganda, this analysis
shows that the construction of legality by the Tianya public was not a top-
down process, but a complex negotiation involving multiple parties. The
Chinese state had to compete with lawyers and outspoken media to frame
and interpret the scandal for the Tianya public and it was not always
successful in doing so. Data show further how the online public framed
the food safety incident as indicative of fundamental problems rooted
in China’s political regime and critiqued the state’s instrumental use of law.
Recent studies show that issues related to law, particularly
citizen rights protection, the government’s illegal practices, and a
variety of legal disputes, are among the most widely discussed
topics in China’s networked public sphere.
1
The ways in which
Party-state agencies apply legal norms and operate legal institu-
tions often trigger “public opinion incidents (gonggong yulun
shijian)”—events that capture the public’s attention—and become
targets of public criticism. Public opinion incidents create oppor-
tunities for many actors, particularly liberal-leaning lawyers,
journalists, and victims, to address grievances and pursue social,
We gratefully thank Greta Krippner,Kim Greenwell, Adam Mestyan, and three anony-
mous reviewers and the editors of the Law and Society Review for their insightful and con-
structive comments. We thank participants in the “New Media, The Internet, and a
Changing China” Conference at the Center for the Study of Contemporary China, Univer-
sity of Pennsylvania, for their helpful feedback on an earlier version of this article. Of
course, all mistakes in the paper are our own. Please direct all correspondence to Ya-Wen
Lei, Harvard University, Society of Fellows, 78 Mount Auburn Street, Cambridge, MA
02138; e-mail: yawenlei@umich.edu.
1
Following Habermas (1996: 360), we use the term public sphere to refer to “the
social space generated in communicative action” and “a network of communicating infor-
mation and points of view.”
Law & Society Review, Volume 49, Number 3 (2015)
V
C2015 Law and Society Association. All rights reserved.
557
legal, and political change. As a result, Party-state agencies in
charge of legal issues, especially the public security system, the
procuratorial system, and the courts, are faced with enormous
pressure (Li, Chen, and Chang 2015). Despite the centrality of
law in China’s networked public sphere, however, we know little
about the ways in which individuals who do not necessarily have
personal legal disputes engage with legal norms, perceive legal
institutions, and interact with legal ideologies in this public
sphere. This article addresses this gap in the literature by exam-
ining how members of the online public in the Tianya Forum—
the most influential online forum in China from 2008 to 2010—
conceptualized and discussed ideas related to law and the 2008
Sanlu milk scandal.
The importance of online public opinion to social, legal, and
political change (or its lack thereof) in China makes the construc-
tion of legality in the networked public sphere a critical research
topic. Following Habermas (1996: 362), we do not use the term
public opinion to refer to aggregated, privately expressed
attitudes that are gathered in surveys or public opinion polls.
Instead, we use the term to refer to collective will-formation
among citizens. In this usage, public opinion is the outcome of
public discussion or debate. Public opinion generated by the
online public has an important role in bringing about change in
China even though the online public is unrepresentative and its
composition tends to be obscure (Dahlberg 2007). Precisely due
to the absence of meaningful electoral battlefields and functioning
institutions for political participation, Chinese citizens who
express their opinion publicly are more likely to influence politics
than the silent majority. Research shows that since its introduc-
tion and popularization, the Internet has become the most
important venue for public opinion formation and expression in
China; even when online viewpoints are far from representative,
their dissemination and discussion among large numbers of
citizens gives them the power to shape news agendas, create
public opinion incidents, and eventually impose pressure on the
Chinese Party-state (Yang 2009).
Many ordinary citizens as well as legal and media professio-
nals believe that strong public opinion raises the probability that
Party-state agencies will respond to problems and grievances (He,
Wang, and Su 2013; Liu and Halliday 2011; Yang 2009). Conse-
quently, public opinion has become a tool that various actors
attempt to mobilize public opinion to influence political and legal
processes (Fu and Cullen 2008; Halliday and Liu 2007; He et al.
2013; Liebman 2005; Liu and Halliday 2011; Stern 2011).
Indeed, cases of legal mobilization indicate that beliefs about the
Chinese Party-state’s responsiveness to public opinion are not
558 Contesting Legality in Authoritarian Contexts
ungrounded. For instance, criticism of the government both
online and offline in the Sun Zhigang case in 2003 led to the
overhaul of unconstitutional detention regulations. The Deng
Yujiao case in 2009 similarly demonstrated that public opinion
can influence court decisions. When interviewed by the media
about the Deng Yujiao case, the Vice President of the Hubei
Higher People’s Court said that judges should consider how the
public perceives cases on trial and avoid arousing public senti-
ment.
2
The Vice President’s statement is consistent with studies
of the Chinese legal system that show that, to appease the public,
Chinese courts and Party-state agencies involved in legal disputes
take public opinion into consideration, particularly when pressure
from public opinion is intense (He 2014; He et al. 2013; Liebman
2005, 2011a, 2011b).
The Chinese Party-state’s responsiveness to public opinion
has also been documented and explained by scholars of Chinese
politics. Reilly (2012) and Stockmann (2013) argue that the
Chinese Communist Party (CCP) has developed a form of
authoritarianism characterized not only by repression and coer-
cion but also by responsiveness. By allowing a certain degree of
criticism—particularly criticism of government agencies and
_problems at the local level—the central government increases its
information about, and ability to monitor local Party-states.
Furthermore, by accommodating popular pressures to some
extent within its decision-making process, the CCP aims to sus-
tain its legitimacy and maintain regime stability (Reilly 2012: 1–2;
Stockmann 2013: 6).
To be sure, the Chinese Party-state’s responsiveness to public
opinion should not be overstated, just as the various ways in
which it continues to repress public opinion should not be under-
estimated. Ultimately, responsiveness and repression are both
strategies used by the CCP to maintain it political monopoly. Our
point, however, is the following: in a context where formal chan-
nels for political participation are limited and where legal institu-
tions cannot or do not address grievances in a satisfying manner,
the networked public sphere has become a critical site for various
dissatisfied actors to address individual grievances, define and
discuss societal problems, and advance legal, political, and social
change. Furthermore, research suggests that the public opinion
produced within this sphere can potentially influence the Chinese
Party-state’s decisionmaking. The court of public opinion is not a
formal political or legal institution, but it nonetheless has the
2
http://news.ifeng.com/mainland/200909/0922_17_1360006.shtml (accessed 21
January 2014).
Ya-WenLei & Daniel Xiaodan Zhou 559

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