Introduction to China: Law, Finance and Security-A Symposium

• Author: Larry Catá Backer
• Position: Professor of Law, Pennsylvania State University, Dickinson School of Law, and guest Symposium editor.
• Pages: 1-15

Page 1

Larry Cat Backer: I am grateful to the student conference organizers, Helen Yu, Erin Peterson, and David Pendergast; the editors of Transnational Law & Contemporary Problems; and Enrique Carrasco, the Director of the University of Iowa Center for International Finance & Development for putting together an excellent conference and for publishing the important insights that the panelists shared with the conference participants. I am grateful as well for the opportunity to serve as guest editor of the excellent collection of essays that were produced in the course of this conference and symposium.

The promise and challenges of Chinese law, economy, and foreign relations are nicely framed within the Chinese Constitution.¹ Article One of the Constitution provides that "The People's Republic of China is a socialist state under the people's democratic dictatorship."² This foundation of state organization is elaborated in Paragraph Seven of the Preamble, which provides that:

Under the leadership of the Communist Party of China and the guidance of Marxism-Leninism, Mao Zedong Thought and Deng Xiaoping Theory, the Chinese people of all nationalities will continue to adhere to the people's democratic dictatorship, follow the socialist road, persist in reform and opening-up, steadily improve socialist institutions, develop a socialist market economy, advance socialist democracy, improve the socialist legal system and work hard and self-reliantly to modernize industry, agriculture, national defense and science and technology step by step, promote the coordinated development of the material, political and spiritual civilizations, to turn China into a powerful and prosperous socialist country with a high level of culture and democracy.³

Equally powerful is the cultivation of an irredentism with Chinese characteristics. The Preamble to the Constitution provides that "Taiwan is part of the sacred territory of the People's Republic of China. It is the Page 2 lofty duty of the entire Chinese people, including our compatriots in Taiwan, to accomplish the great task of reunifying the motherland."⁴

These Constitutional passages set forth all of the elements of Chinese political organization: democratic dictatorship under the leadership of the Chinese Communist Party (CCP),⁵ the central role of political ideology as a constraint on and blueprint for the leadership asserted by the CCP, the focus on the material and cultural development of the nation, and the elimination of the last vestiges of colonialism through the expansion of the territory of the State to its greatest extent during the period of Imperial organization.

The passages also reveal the conflations of Chinese approaches to ideology that befuddle the West: democratic dictatorship and democracy, Marxism-Leninism as a foundational guiding ideology, and modernization in the context of a free-market system of globalization, strong support of self-determination of ethnic peoples, and fierce Taiwanese irredentism. Many of the difficulties and challenges of Chinese development in law, economy, and foreign relations are problems of ideology.

Current political theorizing, a product of and reaction to the ideological and political upheavals of the Cultural Revolution, forms part of a growing and complex system of political and governance principles with profound effects on Chinese law, economics and politics. The foundations of this system can be traced back to the late 1970s and the triumph of Deng Xiaoping. Deng set the country on the path to attainment of four modernizations-China's industry, agriculture, national defense, and science and technology-by an ideological and political adherence to the Four Cardinal Principles.⁶ From out of these ideological beginnings, China has begun to build a rich matrix of governance.

But this matrix is in its infancy. And so it should come as no surprise that the ideological journey of the People's Republic of China has not been smooth, nor is it anywhere near complete. This is no revelation to the leaders of the party in power in China-the Chinese Communist Page 3 Party. Deng understood that China in the 1970s started "from a weak base"⁷ with "a large population but not enough arable land."⁸ The Preamble to the Constitution of the Communist Party of China declares that: "China is at the primary stage of socialism and will remain so for a long period of time. This is a historical stage which cannot be skipped in socialist modernization in China that is backward economically and culturally. It will last for over a hundred years."⁹

Deng's approach to finding an answer to those problems has set the stage for the development of Chinese political theory ever since: "We can surely find ways of solving these problems. But I am not going to discuss them today. What I want to talk about now is ideological and political questions."¹⁰ We have been talking about ideological and political questions in China ever since.

During the last months of 2005, Chinese President Hu Jintao added an additional element in the construction of a post-Mao Zedong ideological theory that has been reshaping the normative foundations of the People's Republic of China. This layer is known in the West as the Three Harmonies or "he-ping, he-jie and he-xie. This 'triple he [harmony]' can be rendered as 'seeking peace in the world, reconciliation with Taiwan, and harmony in Chinese society.'"¹¹ The Three Harmonies are complex and ambiguous. On the one hand, they might be read as the announcement of a new active principle of Chinese engagement-with its own citizens through law, with the global community through peaceful relations based perhaps on current patterns of economic globalization, and with estranged members of the Chinese political community in Taiwan.¹²

But the Three Harmonies can be read in another way as well. Journalist-lexicographer Victor Chen points out that, like so many Page 4 complex Chinese ideographs, the Three Harmonies are subject to other interpretations:

The three harmonies should be read in the passive voice. China does not actively "seek peace in the world". China wants the world to regard her as a peaceful world power. Nor is China at present "actively seeking" a non-peaceful resolution to the Taiwan problem but "waiting" for a peaceful resolution. Most importantly to the Beijing authorities, "social harmony" means controlled conformity against social and ideological liberalization.¹³

The Three Harmonies thus serves as an excellent example of the form of Chinese political discourse, its significant practical effects, and its ambiguities. Chinese ideological and political systems ultimately shape the social, political, and economic culture of the People's Republic of China. In a state that takes political theory very seriously (at least officially) but in which development is still not at an advanced stage, theory and practice, aspiration, and reality serve as critical sites for study.

It is only fitting, then, that the University of Iowa's College of Law should sponsor a symposium, China: Law, Finance and Security, on February 10, 2006.¹⁴ The program was sponsored by the University of Iowa College of Law, the University of Iowa Center for International Finance & Development, the University of Iowa Center for Asian and Pacific Studies, Transnational Law & Contemporary Problems, the University of Iowa's International Programs, the International Law Society at the College of Law, and the University of Iowa Student Government.¹⁵ Professor Enrique Carrasco said, "China was chosen as a topic because it is becoming such a significant player in the world economy. The Chinese economy has been growing at a rate exceeding 8 percent a year and its GDP is now the fourth largest in the world."¹⁶ Page 5

The Three Harmonies touch on the most significant challenges to the modern Chinese state: its law, its economic organization, and its foreign relations. The Conference focused on the difficulties and opportunities for China in each of these three areas.¹⁷ The symposium began with welcoming remarks by Professor Eric Andersen, Associate Dean for Academic Affairs, University of Iowa College of Law, followed by an Introduction to the Program delivered by Professor Enrique Carrasco, the Director of the University of Iowa Center for International Finance and Development. U.S. Representative Jim Leach delivered the Opening Remarks. Representative Leach's remarks were followed by three panels. The first focused on rule of law issues in China. The second examined issues of finance and the development of the Chinese financial sector. The last panel focused on the issue of Taiwan. Closing remarks were delivered by Helen Yu, Erin Peterson, and David Pendergast, the principal student organizers and creators of the conference program.

Representative Leach's opening remarks focused on an assessment of Chinese reforms over the last thirty years.¹⁸ He started from the assumption that the rule of law and democracy are inseparable. From this assumption, it was difficult to conclude that current Chinese attempts at developing a rule-of-law state would be successful in the absence of the reconstitution of the Chinese Communist Party. As long as the CCP remained the party in power, prospects for democracy-and therefore prospects for an effective rule-of-law society-would be diminished. But Representative Leach believes that change in China is inevitable, and that change will propel China towards greater democratization on a Western model. This may be helped along by the great push toward engagement with the global economy and the economic prosperity it is producing. On the other hand, Representative Leach urged caution on the part of those in Taiwan who sought independence for the Island. While Representative Leach was comfortable with...