Western analyses of deprivation of liberty in China

Abstract of a forthcoming chapter in the volume 'Legal Reforms and Deprivation of Liberty in China', co-authored with Elisa Nesossi, Sarah Biddulph and Susan Trevaskes

Western analyses of deprivation of liberty in China

One of the first studies ever produced on China’s correctional system in the twentieth century, if not the first, was authored in 1950 under the auspices of the Human Resources Research Institute. Known as the HRII, the Research Institute was a think tank of the US Air Force Headquarters, an institution that used to publish a series entitled Studies in Chinese Communism. One of the volumes in this series, by Henry Wei, contained a description of the People’s Republic of China’s (PRC) correctional system. The goal of this and other studies sponsored by the HRII was to explore ‘the psychological and sociological vulnerabilities of the Chinese Communist Regime’ (Wei 1955, vii). 

While the newly established Chinese government may indeed have felt vulnerable – in 1950 large areas of Southern China were not yet fully controlled by the People’s Liberation Army – it is interesting to notice how those who explained the goal and rationale of research on China’s prisons thought of China’s vulnerability as being somehow related to disclosing information about the country’s correctional institutions. 

After all, Henry Wei’s (1955) research was largely descriptive, and while his ideas were expressed using the style, language and vocabulary popular in the 1950s, he refrained from articulating any explicit moral judgment about China. Wei’s (1955) work, Courts and Police in Communist China, was paradigmatic, as it set the main themes of discussion in Western literature on Chinese prisons in the 1980s and beyond. 

This chapter provides a bird’s-eye view of these themes, comparing them to those that have been popularised by the Western media. In the absence of detailed information on how prisons operate in China, Western scholarly analyses have relied on descriptive rather than analytical approaches. Up until James Seymour’s (2005) publication Sizing up China’s Prisons, scholarship had largely struggled to conduct analyses of China’s prisons. 

While information about prisons may be provided by those who have had direct expe­rience of deprivation of liberty, the difficulty of accessing their testimonies is significant. Even in the absence of such difficulty, it can be imagined how the majority of those who have wit­nessed the reality of deprivation of liberty would hesitate to provide their testimonies, if only out of their desire not to relive emotionally painful experiences. 

Such a paucity of information, as well as the limited number of scholarly analyses, has affected the media’s ability to provide a nuanced picture of China’s correctional systems, and the significant gaps that still exist in our knowledge of China’s corrections result in difficulty for scholars to shed light on the grey areas that exist in them. These grey areas thus continue to exist. Their existence can either lead to attempts to explore them, or prompt reliance on existing tropes.

Early analyses of corrections in China emerged immediately after World War II, at the height of McCarthyism and the Cold War, and were thus preoccupied with China’s justice system. The memories of Nazi extermination camps and Soviet gulags were still all too vivid in the minds of authors and their public to allow for any discussion of prisons and re-educa­tion through labour (RETL) institutions that avoided relying on the tropes of the ‘Camp’ or the ‘Gulag’. The most recent literature on deprivation of freedom has started to question this orientation, and has searched for different points of view from which to tackle the difficult issue of corrections in China. 

But the many grey areas and blind spots in our epistemolo­gies and heuristics seem to be connatural with the object we are attempting to analyse. A closely similar set of limitations existed during what I will term the ‘first wave’ of analyses of China’s corrections. Works authored towards the end of the nineteenth century are histori­cally and authorially unrelated to the literature that has been produced since the 1950s. But perhaps locating empirical data on Chinese prisons today is as much a demanding task today as it was in 1800. While technology has significantly facilitated the work of researchers and analysts in the most diverse fields, constraints in time and in access to data pose limitations which, if transposed into the contemporary context, bear distant similarities to the difficulties experienced by those who researched China’s prisons during the nineteenth century.

Volume Description

The volume presents an extensive investigation into the process of reforms of detention powers in today's China and offers an in-depth analysis of the debates surrounding the reformist attempts. The chapters in this collection demonstrate that legislative and institutional reforms in this area result from political opportunities, openings and tensions at the central institutional levels of political authority,  and contingent social and political factors. The book examines legal and institutional reforms to institutions of detention and imprisonment that have occurred since the 1990s, with a particular focus on the 21st century. Its content follows three particular lines of enquiry concerning the issue of deprivation of liberty in contemporary China. The first deals with the academic and theoretical debates on the subject of imprisonment and detention. The related chapters explain the difficulties encountered in this area of research and understandings of the discourses of reform through labour in Western and Chinese scholarship. The second deals with the specific issues of criminal and administrative forms of deprivation of liberty, examining in particular the institutional and legislative dimensions, considering the relationship between reforms and criminal justice policy agendas. The third assesses the meaning of institutional reforms in the context of the changing state-society relationship in contemporary China


"It is up to us to pick up the bricks and put them together" - Jean Christopher Mittelstaedt Comment on "Musings on the Concept of Zhengfa"

"Musings on the concept of Zhengfa" is the title of a post that appeared on this blog on March 17. The post was based on a paper I presented at the Australian National University, Centre for China in the World. I am truly honored to receive, and post, a comment I have received from Jean Christopher Mittelstaedt, who is a DPhil candidate at the Politics Department, University of Oxford. 

"It is up to us to pick up the bricks and put them together"

Flora Sapio’s discussion on zhengfa is significant for at least two reasons: first, it highlights the darkness in which we as China scholars tend to live in and is an attempt to shine some light on an often bewildering subject (in this case zhengfa and the implied relationship between politics and law); second, even more importantly, her paper is an invitation to think about the nature and construction of meaning in the Chinese context.

It is easy to casually dismiss Dr. Sapio’s recent article on zhengfa as a semantic game leading “nowhere” by arguing that deconstruction must necessarily be self-defeating. The very opposite is true. In the Dionysian Dithyrambs, Nietzsche writes “the desert grows: woe to him in whom deserts hide…” The growth of the desert, or desertification, is different from destruction. Both “construction” in con-struere and “destruction” in de-struere derive their basic meaning from “heaping together” or “piling up”: what has been destroyed can be built up again. A destroyed city is re-built, buildings are re-constructed, et cetera. A “desert” is different in that there is nothing to be reconstructed. The Latin “desertus” means to “lay waste”. The desert that grows leaves nothing but a barren wasteland in which there can be no human life. A village that has been taken over by the desert is lost and cannot be reclaimed. Desertification is thus more total and thorough than destruction because it negates the very idea of structure - a structure that is necessary for an eventual reconstruction.

Why is this significant? Dr. Sapio’s discussion of zhengfa is based on the assumption that our own concepts are insufficient and therefore cannot adequately convey the meaning of Chinese concepts. With this insight, the deconstruction of the concept therefore is a necessary first step for building a fundament. By questioning fundamental assumptions, Dr. Sapio takes the first step in creating this fundament and framing future discourse. Hence, her discussion of zhengfa has an inherent positive aspect.

The interpretation of Chinese concepts and texts be they political speeches or legal texts, has to a great extent evaded us. In another piece, Dr. Sapio noted that concepts in Chinese law are too often seen “as discrete entities, rather than as evolving ideas which exist in a broader context.” The context, as she suggests, extends to “ideology, culture, history and language” and following “the Party’s monopoly over matters of ideology, fidelity to the Party, acceptance of and cooperation with the monopoly over ideology” but is not limited to them. Hence, by opting for destruction Dr. Sapio opts for destruction and simultaneously exposes the severe desertification of thought that has hindered understanding. A concept does not exist separately from other concepts.

The concept retrieves its meaning from the field it finds itself in - a field that is prone to change over the course of time - then from the wider relationship with other fields, finding itself within a holistic Hegelian system. What is zhengfa? Going a full circle after reading Dr. Sapio’s text it would be sensible to state that zhengfa remains as zhengfa. The approach already determines this since zhengfa’s meaning can just be understood from within itself and the theory (context) and practice (implementation) it finds itself in. If this is the case then zhengfa is untranslatable (so is every other concept). Putting feasibility aside, adopting this thinking and following it to its conclusion, a book on China must necessarily be in Chinese since the concepts employed just find their meaning within this language (and its depths) and not any other. However, the book in turn is a remnant of a particular situation and discourse (as is Dr. Sapio’s text and my response). It is to this extent that we can understand concepts as answers to questions.

Hence, to understand the meaning of zhengfa one has to go both into the historical (vertical) and discursive (horizontal) dimensions. Ferdinand de Saussure reminds us that a concept is a “vessel, not in dry-dock but on the sea.” It is not stable and is both affected by the movement of the waves and the vessel’s crew that guides it. Much as in Hieronymous Bosch’s painting “Das Narrenschiff” (The Ship of Fools) “whose crew of imaginary heroes, ethical models, or social types embarked on a great symbolic voyage which would bring them, if not fortune, then at least the figure of their destiny or their truth,” the guidance of the concept is almost arbitrary if in its complexity not completely absent and inaccessible to sensible analysis. As such, the concept is both a reflection and a break with the past’s tradition while being embedded in an ever-changing current. In cutting through the waves, the Fools negate tradition and their past without having any understanding of where the journey leads and what its consequences are: in rare moments of clarity the journey’s meaning changes randomly, disintegrating and unifying without necessarily ever reaching accord or solving its own contradictions. The Ship of Fools is an illustration of how a concept’s meaning is both determined by theory and practice.

Indeed, we need to view concepts in their historicity and informed not only by theory but also by practice. Rooting the interpretation of concepts in their own present and understanding their meaning as a reaction to a specific environment is not necessarily a Marxist position. Indeed, Oxford historian R. G. Collingwood maintained that we could just comprehend a text if we understand the question it answers. Hence, we need to understand texts in their “logic of question and answer”. As a text answers a question, a concept answers the question the text poses. Therefore, even though a text from the 19th century and a text from the 21st century might use the same concepts, these concepts cannot connote the same meaning even through they are bound together. As Skinner notes, texts and concepts reveal “the essential variety of viable moral assumptions and political commitments.” The school of linguistic law in China argues that a legal concept reflects and shapes the present and past. Analysing the meaning of a concept thus means to understand its place within the discursive web at that particular time. In China, historical writing has a long tradition. “To know the future in the mirror of the past” (jian wang zhilai 鉴往知来) expresses the desire to remember the past for better understanding the present and shaping the future. Barmé notes that concepts in China are continually re-interpreted to answer the questions of the present. In any political environment, if the past is understood through the prism of current problems, this presents the problem of how to break through “Sino-speak”. Hence the concept encapsulates the “unsaid” and the “whole of language” and as such the “its own time”. Schwartz writes that a concern with the text “involves a concern with the milieu within which the texts emerge.” Based on this analysis, the concepts further have to be understood within their “broader traditions and frameworks of thought.”

The idea of re-interpretation finds its evidence clearly within the thought of Mao Zedong. Mao’s dialectics in “On Practice” and “On Contradiction” can serve as a broader basis to elaborate the relationship between practice and theory that serves as the basis of the generation of meaning. Practice informs theory, manifesting a dialectical relationship. Theory is grounded in the correct understanding of practice. Grounded in revolution, the theory derived from struggle progresses with changes in practice. Truth and meaning is produced through changes in practice and the results of struggle. Truth is thus rooted within the changing nature of practice that informs theory. Meaning is rendered fluid, not based on a linguistic interpretation of a concept but rather based on on-the-ground realities that inform and coin meaning. While the resulting meaning, as truth, is a norm in that it influences the practice, it only does so for the blink of an eyelash whereupon practice again takes over the wheel. The oppositional and complementary principle in xiangfan xiangcheng 相反相成 points not to violent struggle but to harmonious unity. Opposition and complementariness exist on the same level and are not hierarchical.

What is needed is to test the complementarity of practice and theory through first the establishment of a range of possible interpretations that will then, in a second step be judged against on-the-ground realities. Dr. Sapio acknowledges this when she mentions that one way “would be trying to understand what zhengfa means to those who belong to the political-legal system”. The candidates would be people who are located at the intersection, the “-” within “political-legal”. The problem is to delineate where the political ends and the legal starts - leading us back to the initial problem.

We thus face two circles that are intertwined. First, the problem of meaning: Dr. Sapio mentions that for the Chinese Academy of Social Sciences, zhengfa is “a composite name for politics and law,” linguists at Jiaotong University explained it as “politics and law”. Their translation is unhelpful however - it establishes a dichotomy that may or may not exist within the original zhengfa. “Politics” - “and” - “law” through the “and” by putting (a specific version of) “politics” in the front establish a sponsored misinterpretation. Is it that law comes out of politics? What is their relationship - are they equal as “and” suggests are they hierarchical? What does it mean for “politics” to stand before “law”? To what extent is zheng even “politics” and fa “legal” or “law”? There is no doubt that zhengfa differs from “politics and law”. This however does not tell us anything about zhengfa’s meaning.

It is telling that this way of questioning already assumes that zhengfa does and indeed can possess a stable meaning - which, according to the analysis above is a flawed assumption. Rather than asking what zhengfa means, we perhaps should rather ask how zhengfa is. What meaning does it take within a specific text? What question does the concept answer (within a particular text, written at a particular time by a particular person within a grander context)? It is thus necessary to develop the meaning of the concept through understanding both its position within the text and the text within its wider context of practice. Valid only in a particular moment in time, its meaning must necessarily change.
The second circle is concerned with the further verification of the meaning that has been developed. Dr. Sapio is concerned with “how we gauge which, among all the existing meanings, is more important.” However, having identified different layers of meaning, they become traceable. As identities, some are more pronounced than others, showing themselves at particular moments while vanishing in others. However, all meaning is grounded in tradition. In how far is this meaning present in earlier iterations of the concept? This approach leads us to interesting places, for example eliminating Sinology’s artificial assumption of a divide between pre-1949 and post-1949 China.

Zhengfa must remain as zhengfa. This is not to say that it must stay so forever or that it is untranslatable. However, for the sake of establishing a more accurate understanding, translation might be premature. Perhaps we ought to first try to comprehend the concepts for themselves, set within a specific theoretical context and practice. In other words we need to be more precise when discussing concepts. Especially in China that is both undergoing political and legal (here, again) change, meaning is more fluid. Gadamer wrote that translation necessarily means interpretation. The task we have before us is to become aware of our (and their) biases to narrow the gap between the two, knowing that it shall never be closed completely. This is the task to which Dr. Sapio’s research calls us and it is up to us to pick up the bricks and put them together.