Media products as law: the mass media as enforcers and sources of law in China.

• Author: Lee, Tahirih V.
• Position: Sustainable Development, Corporate Governance, and International Law

INTRODUCTION

Government propaganda so permeates Chinese society, it is impossible to escape its reach. Given this fact, the relationship between law and propaganda is an important subject for study. To my knowledge, it has not been studied before now, except in my previous examination of the relationship between the media and China's legal bureaucracy. In that study, I found that the legal bureaucracy is closely aligned with the state-run media, and that the commercialization of the last two decades of the twentieth century did not loosen this connection, at least with respect to laws that fall into a realm labeled "political." (1) In this study, I probe more deeply the problem of how closely bound propaganda and law are in China.

"In the People's Republic of China ("PRC'), the texts of major national statutes (falu) and regulations (guiding) are published in the primary Chinese Communist Party newspaper, The People's Daily (Renmin ribao)." (2) Clearly these publications are "law" in the sense that they are officially enacted as laws, but what about other media transmissions? Print and broadcast media operated by the state also contain reports of official interpretations of the law, and reports about the implementation of law and about matters that are regulated by PRC law. Can these media transmissions also be considered law?

This study attempts to determine whether and how the print and television media in the PRC function as law. In Part I, I survey law and media in the PRC to determine whether, as a historical and institutional matter, products of PRC media might be considered part of China's "legal system" or "sources of law." It is not difficult to make the case that state-run media are part of the legal system of China, particularly when the current apparatus is placed in historical context. It is more of a stretch, however, to argue that media transmissions are authoritative sources of law. Courts in China do not cite them in published opinions, nor do China's legal

experts view them as authoritative in a formal sense. When Chinese law is viewed in its historical and social context, however, it becomes clear that media transmissions about law carry a great deal of authoritative weight. Mass media in China have been disseminating central policy since the Ming Dynasty. (3)

Though no one else has published the argument that connects media to law in this way, the theories of several sociologists provide support for the general notion that law achieves its power by the way that it is communicated in society to individuals. Emile Durkheim, Michel Foucault, Edward Epstein, and Carole Nagengast define the phenomenon of law as something that is broadcast to shape behavior. (4) This view helps to situate law within Chinese society and makes it easier for us to understand the authoritativeness of any type of official communication about law in China.

I use a case study to examine the hypothesis--that the mass media in China both enforce the law and provide authoritative sources of law--produced by this historical and theoretical survey of the legal role of the media in the PRC. The study is comprised of a discursive analysis of transmissions of the state-run news agency Xinhua, two major legal newspapers ran by branches of the Ministry of Justice, and other official materials. Two samples of transmissions are used, each of which include popular and internal Party treatises, all of which touch on the regulation of procreation, marriage, divorce, and care of the elderly. Drawn randomly from several of the newspapers with the widest circulation in China, one sample was collected from 1984, and the other sample was collected from 1995 through the first half of 1996. Excluded are the exclusively electronic transmissions by the government that have become a part of its communication with the people of China, such as descriptions of events that appear unsolicited on cell phones. Although such transmissions use different means other than print media, their message and goal remain the same. (5)

The media transmissions in the second sample differed from the first sample in primarily one way. The references and language pointed to concerns of a more commercial or materialistic nature. Yet, the purpose of the transmissions did not appear to change from the period of the first sample to the second, eleven to twelve years later, suggesting that the role of media as a source of law in China is enduring and strong.

In both samples, the media transmissions interpreted and amplified the relevant law in ways that signaled the mid-1990s tight control of the PRC central government over "political" matters, and a new sharing of control over "economic" matters by both the PRC central government and local entities officially recognized by the government. This pattern remained consistent through the changes in format of the media transmissions heralded by the commercialization of the mass media by 1995 and 1996. (6)

Whether the relationship between media and law in the PRC is unique is beyond the scope of this paper. Although media in Russia and Taiwan may play a similar function, detailed evidence of this awaits future research. (7) In the following section I draw some basic distinctions between the United States and the PRC in this regard, but in doing so, do not rule out the legal significance of American film and televised broadcasts of trials and other media transmissions related to law.

1. LAW AND THE PRC STATE-RUN MEDIA

   When looking for law, it helps to know what to look for. In the fields of comparative law and legal history in the United States and Europe, scholars routinely struggle with this problem. Two fruits of their efforts are the concept of law as a "legal system," and the concept of "sources of law."

   1. Law as Legal System

      The concept of "legal system" is probably a product of a passion for systems that took root in German Neo-Scholasticism in the sixteenth century, was revived by German proponents of natural law in the eighteenth century, and dominated the efforts of German jurists through the nineteenth century. (8) It is so ingrained in both the American and the Chinese way of thinking, that in the latter part of the twentieth century, lawyers and scholars of law do not bother to define it. (9) The term connotes a sense of comprehensiveness, internal cohesion, and national boundary. In other words, the legal system contains all that pertains to law within a nation state, and all that pertains to law within a nation state operates in coordination with everything else that pertains to law in the nation state.

      A methodological problem arises, which is how do you know what pertains to law and what does not? The "formalists" among these jurists solve this problem by focusing on a narrow band of enacted law, principally statutes, constitutions, and judicial opinions that are officially recognized as legal authority. (10) The "functionalists" among these jurists developed another widely accepted method in the field of comparative law for determining what comprises a legal system. They look at the functions of law and which societal needs or demands it fills and which it does not. (11) Unfortunately, functionalism also leaves unanswered the question of how we know law when we see it, because the method neither embraces the possibility that law can take infinitely various forms, nor does it identify a set of attributes of law in all cultures and all times. The method has been successful, however, in broadening the narrow, positivistic view of law that gained sway in the nineteenth century in Europe and the United States to include institutions and society.

      Applying a functionalist conception of a legal system to China's media, one role of the media is readily apparent, that is the role of media as educator of the public about the law.

      1. Media as Legal Educator

         Since at least the fourteenth century, mass media has functioned as a channel of communication between the state and society in China. China's rulers developed devices for disseminating central policy to the populace without personal contact with them. Emperor Zhu Yuanzhang, the founder of the Ming Dynasty, used "Placards of People's Instructions" and "Grand Pronouncements" to communicate the law en masse to his subjects. (12) The Placards were imperial decrees that contained references to the Ming Code and to the Grand Pronouncements, and also added to the codified law. (13) For example, one Placard exhorted people to pay taxes and perform their corvee labor duties, both as provided in the Ming Code. (14) Other provisions of the Placard added to the codified law by making certain codified provisions applicable explicitly to the lijia (15) elders, and making them responsible for enforcing the law at the local level. (16) The Grand Pronouncements were four groups of 236 imperial instructions promulgated between 1385 and 1387. (17) Zhu disseminated the Placards and Pronouncements through a variety of methods. The Ministry of Revenue was responsible for "clearly publish[ing] ... [the Placards] throughout the realm," and students memorized the Pronouncements as assignments in school and investigated their enforcement while traveling in teams. (18)

         Imperial programs during the period of Qing rule sent teachers and books around China to educate the peasantry about Confucian morals. (19) Chiang Kaishek conducted a similar program with newspapers during the Republican period, which was named optimistically "The New Life" movement, (20) and publicized its cultural policy and its Anti-Japan policy during the 1930s and 1940s through the press and film. (21)

         Perhaps using the media to model Zhu Yuanzhang, (22) Mao Zedong and the central leadership of the CCP depended on film, radio, and print mass media during the Party's first several decades to channel official policy both to Party loyalists at the grass-roots level and to those who had not yet allied themselves...