One would expect that the Chinese Communist Party, widely recognized as running an authoritarian regime in China, would not be actively promoting the protection of rights. However, Dr. Mary Gallagher, Associate Professor of Political Science and Director for the Center for Chinese Studies at the University of Michigan, argues otherwise for the realm of labor law.
Since China established their first labor law in 1994, largely to facilitate marketization, there have been aggressive labor law dissemination campaigns through the media, schools and even in the workplace. These inform Chinese citizens of their lawful labor rights and urge citizens to take legal action against employers to protect their own rights. An example would be how state newspaper articles about sad cases of labor exploitation often appear alongside labor law information graphics directing readers to a series of steps they can take, should they face a similar labor law infringement situation.
In 2008, China passed a new, sweeping labor law that strengthens protections for workers across the board, despite criticisms from foreign-invested companies who argued that the law was too restrictive. Meanwhile, updated labor law dissemination campaigns continued. In fact, in the 2008 law’s white paper, there is a line that reads: “[the law is intended to] enable them [citizens] to use laws as a weapon to protect their lawful rights”. There is a widely recognized gap between high standards on the law books and law in reality, which the government publicizes. The result is the legal mobilization of individual Chinese citizens substituting for the state’s proactive enforcement in closing the gap. In other words, China is relying on a ‘fire-alarm’ system rather than systemized ‘police patrols’.
The reason for this situation, or what Dr. Gallagher calls ‘Authoritarian Legality’, are three-fold. One, Xi Jinping’s plan to have 60% of the Chinese population living in cities by 2020 requires an unprecedented acceleration of urbanization for millions of people. Rural residents have to give up their land use rights to be given an urban hukou. One important way to convince them to do so is to exchange land security for employment security. Second, the central government wants to promote formal employment in urban areas to alleviate China’s democratic challenges and ensure participation in China’s urban social insurance scheme. Lastly, this type of legal mobilization is simultaneously carried out with the harassment of NGOs and legal activists. This is because this current type of legal mobilization breaks up collective grievances into individual cases, and encourages unilateral, atomized 维权. It’s politically constrained nature prevents political movements to be borne out of collective grievances. Thus, an expansion of labor rights is a tactical means to the end of China’s urbanization and development, not an end in itself. This is an interesting development of the dominant past trend in China: an abandonment of rights discourse in favor of the practical adoption of the discourse of stability.
Since the 2008 law laws passed, there has been a spike in labor related disputes in China. This is so much so that the local governments tasked with resolving these disputes in courts have seen their capacities overwhelmed. People who utilize the legal system to resolve their labor disputes come away more informed but also more disenchanted with China’s legal institutions. In addition, the citizens who tend to utilize the legal system are more educated, well informed, and have good access to legal representation. Workers most in need of protection don’t have access to such legal representation, have a weak and conflicted trade union (AFL-CIO) to protect them, and see few other options (such as approaching an NGO) due to a repressed civil society. This recipe for dysfunction has produced increased workers’ strikes across China in recent years, requiring the government to employ methods of repression to quell them.
In conclusion, a key question as we think about China’s future is: Will China escape this cycle of law, instability and repression as it progresses on its path to development?