Ian John­son

The New York Review of Books - - Contents - Ian John­son

Crim­i­nal De­fense in China:

The Pol­i­tics of Lawyers at Work by Sida Liu and Terence C. Hal­l­i­day. Cam­bridge Univer­sity Press,

200 pp., $99.99; $28.99 (paper)

China’s Hu­man Rights Lawyers: Ad­vo­cacy and Re­sis­tance by Eva Pils.

Rout­ledge, 312 pp., $163.00

To Build a Free China:

A Ci­ti­zen’s Jour­ney by Xu Zhiy­ong, trans­lated from the Chi­nese by Joshua Rosen­zweig and Yaxue Cao, with an in­tro­duc­tion by An­drew Nathan.

Lynne Ri­en­ner, 297 pp., $68.50

Un­wa­ver­ing Con­vic­tions:

Gao Zhisheng’s Ten-Year Tor­ture and Faith in China’s Fu­ture trans­lated from the Chi­nese by Stacy Mosher.

Carolina Aca­demic,

200 pp., $30.00 (paper)

Ac­tivist Lawyers in Post-Tianan­men China by Rachel E. Stern.

Law & So­cial In­quiry, Winter 2017

Like an army de­feated but un­de­stroyed, China’s decades-long hu­man rights move­ment keeps re­assem­bling its lines af­ter each dis­as­trous loss, mirac­u­lously field­ing new forces in the bat­tle against an il­lib­eral state. Each time, foot sol­diers and gen­er­als are lost, but new troops and lead­ers emerge to take up the fight.

This might sound like high ro­mance, but it isn’t far from the truth. In the 1970s the ban­ner was car­ried by the Democ­racy Wall pam­phle­teers, in the 1980s by the Tianan­men pro­test­ers, in the 1990s by the China Democ­racy Party, and through the 2000s by the lib­eral in­tel­lec­tu­als who helped write Char­ter 08, the bold doc­u­ment calling for an end to one-party rule. Of­ten un­aware of one another’s ex­is­tence be­cause of the Com­mu­nist Party’s dom­i­na­tion of ed­u­ca­tion and the me­dia, th­ese var­i­ous ac­tivists still rise up, in­spired by the val­ues of equal rights and jus­tice.

Early on, ef­forts to pro­mote hu­man rights in China were vi­sion­ary and emo­tional. Dur­ing the Democ­racy Wall move­ment (1978–1979), writ­ers like Wei Jing­sheng called for sys­temic change, while the stu­dent move­ment of­fered in­choate but stir­ring ap­peals for fair­ness and freedom. Slowly, the de­mands be­came more de­lib­er­ate, from the more prag­matic aims of the China Democ­racy Party, which called for an end to one-party rule and im­ple­men­ta­tion of con­sti­tu­tion­ally guar­an­teed civil rights, to the mea­sured tones of Char­ter 08 and one of its ini­tial sign­ers, Liu Xiaobo, who was sen­tenced to eleven years in prison and won the No­bel Peace Prize.

But it is the wei­quan (le­gal rights) move­ment that has ar­guably had the most con­crete ef­fect on Chi­nese gov­er­nance over the past fif­teen years. Wei­quan ac­tivists seek not the over­throw of the sys­tem but its re­form, which they hope can be achieved by tak­ing se­ri­ously China’s grow­ing body of laws. Equally strik­ing, they are lawyers, a pro­fes­sion the govern­ment has con­sciously re­vived and ex­panded along with the rest of the le­gal sys­tem with the aim of mod­ern­iz­ing the Chi­nese state.

Like other move­ments be­fore it, the wei­quan move­ment is small, in­volv­ing no more than a few hun­dred of China’s tens of thou­sands of lawyers. And now, it too seems de­feated. Two years ago, on July 9, 2015, the govern­ment launched a crack­down known by its date: the “709 In­ci­dent.” Dozens of rights lawyers were de­tained and ar­rested, with some re­port­edly tor­tured and a few sen­tenced to prison for over­step­ping the bound­aries of le­gal ac­tivism per­mit­ted by the govern­ment. This was the cul­mi­na­tion of a decade of ha­rass­ment that had al­ready re­sulted in the most well­known wei­quan lead­ers get­ting locked up, ex­iled, or put un­der house ar­rest. Does this sig­nal the end of the move­ment or just a set­back? Af­ter all, Chi­nese leader Xi Jin­ping has made the rule of law one of his sig­na­ture do­mes­tic poli­cies. Can China’s rulers con­tinue to de­velop a mod­ern le­gal sys­tem while as­sur­ing that their own power re­mains un­con­strained by law? Sev­eral new books help us un­der­stand the wei­quan move­ment’s his­tory and prospects, but more im­por­tantly what mo­ti­vates its par­tic­i­pants—why they con­tinue what seems to be a hope­less strug­gle.

The price for op­pos­ing the govern­ment can be high. In June, for ex­am­ple, Liu Xiaobo was moved from prison to a guarded state hospi­tal be­cause he was suf­fer­ing from late-stage cancer—rais­ing ques­tions about the qual­ity of med­i­cal care for hu­man rights de­fend­ers in Chi­nese pris­ons. Ef­forts by his fam­ily and by for­eign gov­ern­ments to get ap­proval for him to seek med­i­cal treat­ment abroad were un­suc­cess­ful, and on July 13, Liu Xiaobo died. And yet the wei­quan lawyers persist in fight­ing for hu­man rights. Why?

At the time of Mao’s death in 1976, China ef­fec­tively had no laws. His suc­ces­sors cre­ated a le­gal code for two rea­sons. First, they wanted it to pur­sue eco­nomic re­forms—cap­i­tal­ism needs con­tracts. But of­ten over­looked was their gen­uine de­sire for the civ­i­liz­ing ef­fect on pol­i­tics that a func­tion­ing le­gal sys­tem can bring. Many se­nior party mem­bers had suf­fered badly be­cause of Mao’s whims. Un­sure of their own sys­tem and will­ing to look out­ward for so­lu­tions, lead­ers such as Peng Zhen, Deng Xiaop­ing, Hu Yaobang, and Zhao Ziyang re­al­ized that laws, es­pe­cially as a way to reg­u­late dis­putes, would make so­ci­ety fairer while also help­ing to re­store the Party’s badly dam­aged le­git­i­macy. In the 1980s, for ex­am­ple, China adopted a series of civil laws gov­ern­ing mar­riage, prop­erty dis­putes, con­tracts, copy­rights, and trade­marks; later laws gov­erned en­vi­ron­men­tal pol­lu­tion and ad­min­is­tra­tive lit­i­ga­tion.

This con­tin­ued even af­ter the era of po­lit­i­cal re­form ended with the 1989 Tianan­men mas­sacre. The govern­ment in­serted guar­an­tees of the rule of law and hu­man rights into re­vi­sions of the con­sti­tu­tion in 1999 and 2004, and signed the In­ter­na­tional Covenant on Civil and Po­lit­i­cal Rights and the In­ter­na­tional Covenant on Eco­nom­ics, So­cial, and Cul­tural Rights. It also trained new judges, opened law schools, and al­lowed for­eign gov­ern­ments and or­ga­ni­za­tions to set up ruleof-law train­ing pro­grams. The ju­di­ciary was not in­de­pen­dent—all courts were still firmly guided by Com­mu­nist Party com­mit­tees—but a func­tion­ing le­gal struc­ture was es­tab­lished.

This am­bi­tious de­vel­op­ment, in­clud­ing laws, judges, and lawyers, was matched by grow­ing pop­u­lar de­mand for le­gal reme­dies to eco­nomic and so­cial dis­putes. Un­der Mao, so­cial ten­sions had been sup­pressed through to­tal­i­tar­ian con­trol or chan­neled into vi­o­lent po­lit­i­cal cam­paigns like the Cul­tural Rev­o­lu­tion. The cur­rent era is less vi­o­lent but ten­sions are still high. Cap­i­tal­ist-style eco­nomic re­forms have led to land grabs, lay­offs, and ex­pro­pri­a­tion. At the same time, Chi­nese cit­i­zens—among them abused spouses, HIV pa­tients, and ru­ral mi­grants— have be­come in­creas­ingly aware of their own civil rights as a re­sult of the new em­pha­sis placed on laws. Many of th­ese peo­ple be­gan tak­ing their com­plaints to the emerg­ing court sys­tem where they gained sup­port from an un­ex­pected new source: pub­licin­ter­est lawyers.1 Most were paid to take the cases but many were mo­ti­vated by prin­ci­ple. With po­lit­i­cal par­tic­i­pa­tion dif­fi­cult and the me­dia un­der govern­ment con­trol, the le­gal sys­tem was one of the few venues in which ide­al­ists could fight in­jus­tice.

This was ap­par­ent as early as the mid-1990s when large class-ac­tion law­suits be­gan to be filed. I vis­ited Shaanxi province sev­eral times in the late 1990s and early 2000s to re­search a book on grass­roots protests. Al­most all the cases were or­ga­nized and led by ide­al­is­tic lawyers will­ing to help farm­ers who were the vic­tims of pol­lu­tion and il­le­gal tax­a­tion.

One such lawyer, Ma Wen­lin, was typ­i­cal for his time. He was an au­to­di­dact who had moved to the county seat to take on lu­cra­tive com­mer­cial cases. But one day farm­ers from his home­town paid him a visit and told him sto­ries of be­ing bul­lied by lo­cal of­fi­cials into pay­ing out­ra­geous taxes on ev­ery­thing from us­ing roads to fetch­ing water. In 1997 he filed a suit on be­half of 12,000 farm­ers. He lost in a lo­cal court, but took the suit to Bei­jing’s pe­ti­tions and ap­peals of­fice in hopes of get­ting a new hear­ing in a more neu­tral court. In­stead, he was de­tained, beaten, put on trial, and sen­tenced to five years in jail. Ma’s case and those of many oth­ers from the 1990s seemed to make clear the lim­its of China’s le­gal sys­tem. Lawyers were wel­come to en­gage in com­mer­cial ac­tiv­ity. They could even file a suit against the lo­cal govern­ment. But when they lost—and they al­most al­ways did—that was it: no ap­peals and no ac­tivism. Tak­ing cases to higher courts or govern­ment pe­ti­tions of­fices might cause the state to strike back vi­o­lently. One could ar­gue that peo­ple like Ma made a dif­fer­ence be­cause a few years later the state abol­ished all ru­ral taxes—a land­mark de­ci­sion widely at­trib­uted to the ru­ral up­ris­ings and law­suits. But the change did not re­sult from le­gal ac­tion. No court struck down the taxes as il­le­gal. In­stead, it was be­stowed by the govern­ment as an act of benev­o­lence.

At the time, this kind of out­come seemed un­sur­pris­ing. Af­ter all, the na­ture of the state hadn’t changed. The Com­mu­nist Party was still in con­trol and the courts were still over­seen by Party com­mit­tees, es­pe­cially in cases deemed in any way sen­si­tive. Rule of law could re­solve dis­putes in so­ci­ety, but not be used as a ba­sis for er­satz po­lit­i­cal re­form.

By the 2000s, how­ever, this view seemed overly pes­simistic. The year 2003 was dom­i­nated by the sen­sa­tional Sun Zhi­gang case. Sun was a col­lege

grad­u­ate from the in­land city of Wuhan who found work in the coastal city of Guangzhou. De­tained by po­lice when he couldn’t pro­duce his tem­po­rary liv­ing per­mit or iden­tity card, he was held with­out charges and beaten to death. A na­tional out­cry en­sued, spurred on by lawyers and the new tools of the In­ter­net. Even­tu­ally the govern­ment abol­ished the rules the po­lice had used to de­tain him.

The Sun Zhi­gang case is of­ten con­sid­ered the be­gin­ning of the wei­quan move­ment, which is care­fully an­a­lyzed in two re­cent books, one by Eva Pils and the other by Sida Liu and Terence C. Hal­l­i­day. Pils fo­cuses on promi­nent hu­man rights lawyers who worked for the most part in Bei­jing and were ac­tive be­fore the “709 In­ci­dent” in 2015. Liu and Hal­l­i­day have con­ducted a na­tional sur­vey of crim­i­nal de­fense lawyers—es­sen­tially a sub­set of the wei­quan ac­tivists—and ex­plore some ef­fects of the crack­down. But many of the broader con­clu­sions drawn in each book are sim­i­lar and to­gether they pro­vide an in­valu­able em­pir­i­cal as­sess­ment of the move­ment.

Both books ad­dress one ob­vi­ous ques­tion: Why bother giv­ing so much at­ten­tion to what amounts to a very small num­ber of lawyers in a huge coun­try? All three authors see the wei­quan lawyers as cru­cial par­tic­i­pants, em­blem­atic of big­ger ten­sions in Chi­nese so­ci­ety. Liu and Hal­l­i­day draw par­al­lels to other coun­tries in other decades, not­ing that in such dif­fer­ent set­tings as South Korea, Brazil, Kenya, and more recently Pak­istan, lawyers have been at the fore­front of change. Pils has sim­i­lar views, ar­gu­ing that “val­ues un­der­pin­ning rights and law are of abid­ing ap­peal in China to­day.”

So who are th­ese lawyers? Liu and Hal­l­i­day’s sur­vey helps us with the big pic­ture. Most, they write, de­pend on lawyer­ing for their in­come, but they gen­er­ally work alone and not in big prac­tices. They tend to be au­to­di­dacts, at best with a law de­gree from a lo­cal univer­sity rather than one of China’s more fa­mous schools—in some ways not sur­pris­ing be­cause stu­dents in those schools are of­ten more firmly em­bed­ded in the sys­tem. And most of the wei­quan lawyers did not be­gin as hu­man rights cru­saders. In­stead, many of them de­scribe ex­pe­ri­enc­ing a turn­ing point— a case that es­pe­cially galled them and in­spired them to act. That was true of Ma Wen­lin; he ini­tially re­jected farm­ers’ en­treaties for help un­til he went home one Chi­nese New Year and saw first­hand the chi­canery that they faced. On a deeper level, many wei­quan lawyers have been driven by tra­di­tional con­cepts of jus­tice. Pils sees plain­tiffs in­flu­enced by the Chi­nese cus­tom of pe­ti­tion­ing and lawyers by the idea of re­mon­strat­ing. The for­mer was car­ried out by or­di­nary peo­ple who brought griev­ances to high of­fi­cials, while the lat­ter was done by of­fi­cials to the em­peror as a form of loyal op­po­si­tion. Other pos­si­ble mo­ti­va­tions are ex­plored less thor­oughly. For ex­am­ple, ob­servers such as the non­re­li­gious wei­quan lawyer Teng Biao note that a quar­ter of his fel­low le­gal ac­tivists are Chris­tian—a very high per­cent­age in view of the fact that Chris­tians ac­count for just 5 per­cent of China’s pop­u­la­tion.2 Pils does not dis­cuss this at all, while Liu and Hal­l­i­day only de­vote a cou­ple of pages to it, writ­ing that many of th­ese lawyers “be­lieve they are en­gaged in a spir­i­tual bat­tle, even a strug­gle be­tween the laws of God and the laws of man.”

Over­all, how­ever, both books pro­vide help­ful cor­rec­tions to the wellmean­ing but of­ten sim­plis­tic dis­cus­sion in the West about China’s le­gal rights move­ment. Western com­men­ta­tors have of­ten as­sumed that with the right rules and reg­u­la­tions a le­gal sys­tem can be con­structed that will lead to re­forms. Liu and Hal­l­i­day note that Chi­nese lawyers have in­deed been given new rights and pro­tec­tions. Reg­u­la­tions in the 1980s called them “state le­gal work­ers” who were meant to “serve the cause of so­cial­ism.” Later re­vi­sions in the 1990s and 2000s gave lawyers the right to col­lect ev­i­dence for de­fen­dants and to meet their clients with­out po­lice ap­proval. While some for­eign schol­ars and politi­cians hailed th­ese im­prove­ments as break­throughs, Liu and Hal­l­i­day point out that the crim­i­nal le­gal sys­tem in China is still dom­i­nated by an “iron tri­an­gle” of po­lice, courts, and govern­ment pros­e­cu­tors. Train­ing judges and lawyers might make them more ef­fi­cient but it does not change what Liu and Hal­l­i­day de­scribe as the “con­fig­u­ra­tions of power.” Pils goes fur­ther, crit­i­ciz­ing by name the schol­ars and or­ga­ni­za­tions—for in­stance, the Amer­i­can Bar As­so­ci­a­tion—that have pushed the idea that train­ing and en­cour­age­ment can yield sub­stan­tive change.

Al­though both books are in­for­ma­tive, the rights lawyers them­selves re­main ab­stract fig­ures. For­tu­nately, two mem­oirs give a hu­man face to the move­ment. One is the sec­ond vol­ume of mem­oirs by Gao Zhisheng, a Chris­tian lawyer who was im­pris­oned through­out the 2000s for de­fend­ing mem­bers of the banned Falun Gong sect. Gao’s book is a per­sonal ac­count of the ex­pe­ri­ences of a le­gal ac­tivist who has suf­fered much for his ef­forts. It tells the story of his var­i­ous ar­rests and in­car­cer­a­tions lead­ing up to his re­lease in 2014, when he was placed un­der house ar­rest back in his vil­lage in north­ern Shaanxi province.

The book is a dis­turb­ing cat­a­log of tor­ture and abuse, in­clud­ing beat­ings, sleep de­pri­va­tion, use of elec­tric cat­tle prods, and months of soli­tary con­fine­ment. But Gao shows an amaz­ing abil­ity to for­give his tor­men­tors, see­ing them as vic­tims of a sys­tem that bru­tal­izes its en­forcers as well as its vic­tims. He has nu­mer­ous con­ver­sa­tions with young guards and tor­tur­ers, de­scrib­ing how they were them­selves abused by the army.

Many end up re­spect­ing Gao and help­ing out in lit­tle ways, such as when his wife and chil­dren fled China:

One time when I went to the nurs­ery to pick up Tianyu, one of the young se­cret po­lice­men took ad­van­tage of the crowd of par­ents at the door­way to come over and tell me, “Old Gao, some of us re­spect you, and when we’re on duty, we will keep our dis­tance, even though that goes against or­ders.” When Geng He and the chil­dren even­tu­ally fled China, it was be­cause

some­one turned a blind eye. One of them said to my face, “We knew in ad­vance that Big Sis­ter and the kids were go­ing to leave.”

Gao also pays trib­ute to his fam­ily, in­clud­ing his four broth­ers, who con­tin­ued to stand by him de­spite the hard­ship he brought on them. This is the most touch­ing part of the book, es­pe­cially his de­scrip­tion of his old­est brother, who worked as a la­borer to sup­port the fam­ily af­ter their fa­ther died early. As he writes his mem­oirs locked in his bed­room, Gao can hear his old­est brother chop­ping fire­wood out in the yard—his own sim­ple form of love and sup­port.

Be­cause Gao worked on such sen­si­tive cases—to­day, Falun Gong re­mains a sub­ject that drives cen­sors and of­fi­cials mad—he spent much of the life­span of the wei­quan move­ment in jail. At times his im­pris­on­ment seems to have been so un­bear­able that he re­treated into ob­scure nu­merol­ogy to pre­dict the Com­mu­nist Party’s demise this year. For­tu­nately the trans­la­tion smoothed this out, but the book is still some­what nar­rowly fo­cused on jail and tor­ture. For a broader view of the wei­quan era, we have To Build a Free China, a series of au­to­bi­o­graph­i­cal es­says by the ac­tivist, scholar, and lawyer Xu Zhiy­ong. Un­like many of the other lawyers de­scribed by Liu and Hal­l­i­day, Xu was not an au­to­di­dact, hav­ing at­tended one of China’s best uni­ver­si­ties and stud­ied un­der one of the coun­try’s top le­gal schol­ars, He Weifang. He was not a crim­i­nal de­fense lawyer and he didn’t han­dle too many cases, pre­fer­ring to of­fer le­gal ad­vice to vic­tims and ul­ti­mately to work as an ac­tivist.

But Xu’s per­sonal jour­ney per­fectly cap­tures the tra­jec­tory of the wei­quan move­ment. Along with two other promi­nent lawyers (in­clud­ing Teng Biao), Xu was in­volved in the Sun Zhi­gang case in 2003 that brought le­gal rights to the fore­front for a gen­er­a­tion of lawyers. Like so many of them, Xu took cau­tious po­si­tions in order to work within the sys­tem; he re­fused, for ex­am­ple, to sign Char­ter 08 for fear of jeop­ar­diz­ing his “Open Con­sti­tu­tion Ini­tia­tive,” a non­govern­men­tal or­ga­ni­za­tion that en­cour­aged cit­i­zens to take their le­gal rights se­ri­ously. When he grad­u­ally re­al­ized that the Chi­nese po­lit­i­cal sys­tem could not be re­formed from within, he de­cided to move to­ward ac­tivism. And like many of the other lawyers, Xu ended up in jail—given a four-year sen­tence that was due to end in mid-July this year.

As a col­lec­tion of dis­parate es­says, Xu’s book is some­times choppy and leaves un­clear the con­nec­tion be­tween cer­tain events or their out­comes. But some pas­sages sparkle bril­liantly, and make it in­dis­pens­able for un­der­stand­ing the ideals that drive the en­tire move­ment.

One of the strong­est parts of To Build a Free China is the open­ing es­say, in which Xu de­scribes his youth in He­nan province. This is one of China’s most pop­u­lous and trou­bled prov­inces, the prin­ci­pal site of many of Mao’s failed rad­i­cal ex­per­i­ments, in­clud­ing the Great Leap Famine, which Xu grad­u­ally learns about. Look­ing back on his youth, he re­counts the cor­ro­sive ef­fect of com­mu­nism on peo­ple’s morals and daily be­hav­ior. The Party branch leader had dic­ta­to­rial power unchecked by any tra­di­tional forces like the lo­cal gen­try, who had been elim­i­nated dur­ing land re­form in the 1950s. The col­lec­tive econ­omy made prop­erty seem free and thus up for grabs, turn­ing neigh­bors against one another as they sensed the un­lim­ited but also unchecked po­ten­tial of com­mu­nal own­er­ship:

Any kid who was re­source­ful enough to steal some­thing from the “pro­duc­tion brigade” would earn praise from adults. When a new ship­ment of vine­gar ar­rived at the vil­lage’s only shop, the adults would order the chil­dren to rush over at once to buy some, know­ing that overnight it would get watered down.

In con­trast to many of the wei­quan lawyers, Xu wasn’t a con­form­ist who had a po­lit­i­cal awak­en­ing in adult­hood. He knew from the time he was four­teen that he wanted to change so­ci­ety. At first he dreamed of be­ing a bi­ol­o­gist and win­ning a No­bel Prize. “But that winter I came to re­al­ize that what our so­ci­ety needed most was truth, freedom, and jus­tice and that it re­quired peo­ple work­ing to pro­mote the good so­ci­ety.” Af­ter a check­ered aca­demic ca­reer— he seemed to be too dreamy to fo­cus on aca­demics—he ended up as Pro­fes­sor He’s stu­dent and met up with Teng Biao, who be­came his life­long friend and col­league. But while Teng be­came in­volved in le­gal cases, Xu spent more time with peas­ants and pe­ti­tion­ers in an ef­fort to un­der­stand their lives. He slept with pe­ti­tion­ers in the rough coun­try­side and ac­com­pa­nied them to the pe­ti­tion of­fices in Bei­jing. He was even beaten up by po­lice—a com­mon prac­tice in the 2000s to pre­vent pe­ti­tion­ers from ar­riv­ing at the of­fice. Xu knew the risks but wanted the ex­pe­ri­ence, so he stood with the pe­ti­tion­ers as they con­fronted the po­lice. He re­fused to tell po­lice that he was a pro­fes­sor at a lo­cal univer­sity, and suf­fered a se­ri­ous beat­ing. Af­ter he wrote about what hap­pened on­line, of­fi­cials called him in for a meet­ing and pledged to end the prac­tice of per­mit­ting the po­lice to beat up pe­ti­tion­ers, which they did.

But with time Xu re­al­ized that work­ing within the sys­tem would yield lit­tle more than to­ken vic­to­ries. Even the Sun Zhi­gang case seemed less of a tri­umph when it be­came ap­par­ent that the state had re­placed the va­grancy laws with other means of scoop­ing up peo­ple at will and hold­ing them with­out charges. That pushed Xu to­ward even more as­sertive ac­tivism. He helped found the “New Ci­ti­zen Move­ment,” adopt­ing the word “ci­ti­zen” from the writ­ings of early re­form­ers, such as Sun Yat-sen, who helped over­throw the Qing dy­nasty in 1911. Xu’s def­i­ni­tion of cit­i­zen­ship was clear and strik­ing:

Cit­i­zens are not sub­jects; they are in­de­pen­dent and free in­di­vid­u­als who com­ply with a le­gal order that is mu­tu­ally agreed-upon and are not re­quired to kneel in sub­mis­sion to any­one.

Xu’s ide­al­is­tic com­mit­ment and his use of terms like “love” are so fa­mous in ac­tivist cir­cles that to this day many swear he is a Chris­tian or a mem­ber of the Baha’i faith. But as he makes clear in his book (and as in­ter­views with close friends con­firm), this isn’t the case: “Many years ear­lier, I had dab­bled in Chris­tian­ity. I have a very re­li­gious mind­set, but that mind­set seems to tran­scend any par­tic­u­lar re­li­gion. So, I can only dab­ble.”

As for what mo­ti­vated him, he gave one an­swer that will ring true to many peo­ple with a height­ened sense of so­cial jus­tice. Writ­ing about the Sun Zhi­gang case and the govern­ment’s de­ci­sion to end the rules that al­lowed po­lice to ar­rest peo­ple, known as “cus­tody and repa­tri­a­tion,” Xu writes: “The only self­ish mo­ti­va­tion I could think of was that I did th­ese things for my own well­be­ing and hap­pi­ness. At the mo­ment they an­nounced that cus­tody and repa­tri­a­tion was abol­ished, I was happy.” So is the wei­quan move­ment more than a way to pro­vide a small group of ide­al­ists with per­sonal ful­fill­ment? One of the best an­swers I found was in “Ac­tivist Lawyers in Post-Tianan­men China,” an es­say by the le­gal scholar Rachel E. Stern, an as­sis­tant pro­fes­sor at Berke­ley Law School. Stern takes a use­fully long view. She writes that the Com­mu­nist Party is in the mid­dle of a vast ex­per­i­ment: try­ing to har­ness the power of the law with­out giv­ing up po­lit­i­cal con­trol. She writes that:

China is an un­usual mem­ber of the au­thor­i­tar­ian club. To­day’s CCP [Chi­nese Com­mu­nist Party] runs a govern­ment with long time hori­zons, a de­cent bud­get, and a claim to le­git­i­macy that rests on gov­ern­ing well. Un­der th­ese three con­di­tions, try­ing to sat­isfy court users’ ex­pec­ta­tions—while also oc­ca­sion­ally let­ting law take a back seat to po­lit­i­cal needs—is a log­i­cal strat­egy. But can du­al­is­tic le­gal sys­tems ever be long-lived and large scale?

She notes that Nazi Ger­many tried this—a to­tal­i­tar­ian state os­ten­si­bly bound by an elab­o­rate sys­tem of laws— but it ex­isted only for a dozen years. A state like Sin­ga­pore also tries to use a de­vel­oped le­gal sys­tem to rule, but it is tiny. By con­trast, Stern ob­serves,

China is pur­su­ing bi­fur­cated jus­tice on an un­usu­ally long time frame and scale. My ques­tion is whether the state can keep con­trol over who en­ters the court­house af­ter throw­ing the doors open.

—July 12, 2017

Pro­test­ers in Hong Kong car­ry­ing plac­ards de­pict­ing hu­man rights lawyer Gao Zhisheng dur­ing Gao’s im­pris­on­ment by Chi­nese au­thor­i­ties, De­cem­ber 18, 2011

Hu­man rights lawyer Xu Zhiy­ong out­side the In­ter­me­di­ate Peo­ples Court in Shi­ji­azhuang, China, De­cem­ber 2008

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