Women and Children's Rights PRC

Legislating Women's and Children's "Rights and Interests" in the PRC
Author(s): Ronald C. Keith

Source: The China Quarterly, No. 149 (Mar., 1997), pp. 29-55
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Legislating Women's and Children's "Rights
and Interests" in the PRC*
Ronald C. Keith
Rights and interests, quanyi, are superseding "class" as the conceptual

axis of Chinese law and jurisprudence. Recent legislation highlighting
this new social and legal theory has stipulated new law on women's and
children's rights and interests. It has also endorsed an updated conception
of the relation between state and society, by which the state is formally
requiredboth to provide for newly stipulated civil law protection of rights
and interests and to perfect a system of social protection, shehui
baozhang zhidu. The latter is to serve as a self-conscious guarantee of the
practical enjoyment of rights and interests through broadly based edu-
cation and social activism. If the leadership of the People's Republic of
China (PRC) has formally committed itself to the development and
protection of such rights, it remains to be seen how this commitment can
be squared with the regime's refurbished mass line focus on comprehen-
sive social control.!
The new perspective on rights and interests is at the heart of a reform
synthesis of jurisprudence and politics which challenges the past domi-
nance of "obligations" and "classes." Prior to the Deng era, society was
understood as a composite of classes, and orthodox interpretation of
rights and obligations doggedly served legal positivism and state instru-
mentalism. With the publication in November 1991 of the first so-called
white paper on human rights, the Chinese government accepted the
legitimacy of human rights terminology, and China's legislative strategy
for social progress and family development has focused on the creation of
a complete legal system which proposes to protect rights and interests in
law.
Legislation in the 1990s has entwined the legal recognition of rights
and interests with a system of social protection which updates a
traditional Party organizational emphasis on state-sponsored education,
* This article is a
significantly revised draft of a paper presented at the Conference on
Changing InternationalSocial Welfare, University of Calgary, 1 July 1995. I am grateful for
the crucial funding of Social Sciences and Humanities Research Council of Canada.
1. I first began to explore quanyi in Ronald C. Keith, China's Strugglefor the Rule of Law
(Basingstoke, New York: Macmillan, St. Martin's Press, 1994), pp. 81, 97, 112, 114-15, 118,
140 and in Ronald C. Keith, "The new relevance of 'rights and interests': China's changing
human rights theories," China Information, Vol. X, No. 2 (Autumn 1995), pp. 38-62. The
reference to the "perfecting of a system of social protection" is integral to recent legislation
on minors, women and the handicapped, but it is perhaps best expressed in Article 2 of the
Law on Protecting the Rights and Interests of Women. Western scholarship which deals with
the state-society paradigm in China often comments that the Chinese political culture
has tended to merge state and society into a continuum of political and social activity
and that despite the growth of market relationships the conceptual notion of "civil society"
lacks a strong indigenous equivalent. For a selected list of references on civil society
see n. 41.
? The China Quarterly, 1997

30 The China Quarterly
social control and activism. The Party's current idealized view of the
state-society relationship has a reformist dimension which is justified in
the reflection of the past experience of the over-centralized state and
command economy, but Party ideology disputes the relevance of Western
"civil society" and juggles political factors of social control with the legal
requisites of rights and interests protection.
Western scholarly literatureis struggling to keep up with the extraordi-
nary changes occurring in Chinese law and society. Until very recently,
children's issues have more often than not been treated as incidental to
the wider Western scholarly literature on the changing Chinese family.
On the other hand, there is already a strong and discrete literature on
Chinese women's issues which has critically weighed Party policy in
light of the promise of socialism to liberate women from the bonds of
Chinese patriarchal society.2
Western foreign policies have often expressed human rights concern
over the declining socio-economic position of Chinese women and
children. And within China itself the legislative priority assigned to the
legal protection of women's and children's rights and interests reflects
deep anxiety over rising social instability and the declining health of the
Chinese family. As Michael Palmer has pointed out, the expansion of the
legal regime governing family life over the last 15 years has been "in
large part prompted by the leadership's concern to ensure stability, order
and continuity in social life."3
Rights and interests have become a focal point of National People's
Congress (NPC) legislative politics in the context of regime decline,
axiological crisis and rapid socio-economic change, and the Chinese have
contemporaneously claimed human rights improvement in those areas of
international human rights which highlight the health of the family in the
context of development.4 The importance of the Chinese notion of family
has been stressed at the same time as nationalism and political unity have
eclipsed the emphasis on socialism in regime ideology. On the other
2. A short list of such works might include: Phyllis Andors, The UnfinishedLiberation of
Chinese Women 1949-1980 (Bloomington: Indiana University Press, 1983); Margery Wolf
and Roxane Witke (eds.), Women in Chinese Society (Stanford: Stanford University Press,
1975); Judith Stacey, Patriarchy and Socialist Revolution in China (Berkeley: University of
California Press, 1983); Elisabeth Croll, The Politics of Marriage in Contemporary China
(Cambridge: Cambridge University Press, 1981); Dalia Davin, Woman-Work:Women and
the Party in Revolutionary China (Oxford: Clarendon Press, 1976); Kay Ann Johnson,
Women,the Family and Peasant Revolution in China (Chicago: University of Chicago Press,
1983); Deborah Davis and Stevan Harrell (eds.), Chinese Families in the Post-Mao Era
(Berkeley: University of California Press, 1993); Christina Gilmartin, Gail Hershatter et al.
(eds.), Engendering China: Women, Culture, and the State (Cambridge, MA: Harvard
Contemporary China Series, No. 10, 1994); Ellen Judd, Gender and Power in Rural North
China (Stanford: Stanford University Press, 1994); and C. Montgomery Broaded and
Chongshun Liu, "Family background,gender and educational attainmentin urbanChina," The
China Quarterly (CQ), No. 145 (March 1996), pp. 53-86.
3. Michael Palmer, "There-emergence of family law in post-Mao China:marriage,divorce
and reproduction," CQ, No. 141 (March 1995), p. 110.
4. For general discussion of the Chinese counteroffensive see John F. Copper, "Peking's
post-Tiananmen foreign policy: the humanrights factor,"Issues and Studies, Vol. 30, No. 10,
pp. 49-78, and Andrew Nathan, "Human rights in Chinese foreign policy," CQ, No. 139
(September 1994), pp. 622-643.

Women's and Children's "Rights and Interests" 31
hand, much of the formal content of China's position on women's

equality and special rights, and the need to protect women and children
from abuse and violence in the family is anything but "traditional."Over
the last few years the politics behind the legislative prioritization rights
and interests in the NPC's agenda have become much more interesting.5
New theory has tended to liberate human rights from the past exclusive
focus on citizens' rights, at a time when reformers are calling for greater
separation of the party from the state, the return of power to society and
administrative decentralization.6
Reform jurisprudence has engaged in heated polemics over "efficiency
is primary and fairness secondary,"xiaoyi weizhu, gongzheng weifu. Even
as the inequality of the marketplace is rationalized as a necessary evil, the
same jurisprudence has strongly endorsed the legislative definition of
women's and children's rights and interests as human rights. Neither
Party leaders nor jurists are able to agree on the extent to which interests
should be judged in relation to competition as opposed to harmony. There
is no universally accepted social justice criterion which consistently
informs the state's readjustment of interests in relation to rights.7
Chinese Legislation in an International Context

The new legislative agenda on rights and interests has developed in
tandem with China's participation in international human rights debates.
Pivotal new legislation on women and children emerged in the State
Council's November 1991 white paper recognition of the applicability of
human rights terminology to China.8 Internal controversy and ultimately
legislation was contemporaneous with new diplomatic offensives in
women's and children's human rights which eventually resulted in the
hosting of the UN Fourth World Conference on Women in September
1995.
The Chinese have become part of an ever widening international
politics over the role of the state and the importance of social activism in
the advancement of human rights. In 1980, China was one of the first
group of countries to endorse the 1979 UN Convention on the Elimin-
ation of All Forms of Discrimination Against Women. Its emphasis on
special rights received favourable attention in Chinese jurisprudence. In
1985, the final year of the UN decade on women, a new law on the rights
and interests of Chinese women was first proposed by the Women's
Federation. In 1989 China was one of the co-sponsor countries which
participated in the drafting of the UN Convention on the Rights of
5. The developing political importance of NPC law-making has become a strong new area
in Western sinological research; for example see Murray Scott Tanner, "The erosion of
Communist Party control over lawmaking in China, CQ, No. 138 (June 1994), pp. 381-403.
6. Keith, "The new relevance of 'rights and interests'," pp. 46-49. For an extended
discussion of the evolution of "rights" in China see Ann Kent, Between Freedom and
Subsistence: China and Human Rights (Hong Kong: Oxford University Press, 1993), passim.
7. The efficiency versus fairness controversy is detailed and analysed in my AAS
conference paper, "Antithesis in Post-Deng Jurisprudence,"Honolulu, 14 April 1996.
8. See "Human rights in China," Beijing Review, (BR), 4-10 November 1991, pp. 8-45.

Children. Also, in April 1989, the Special Group for Women and
Children of the Committee for Internal and Judicial Affairs of the NPC
was tasked with the co-ordination of a related legislative agenda.
In 1990 China first bid to host the 1995 UN Women's Conference. In
February, the Working Committee on Women and Children was estab-
lished within the State Council to co-ordinate all the related government
departments and mass associations. Significant aspects of recent national
legislation were inspired by 1980s' provincial regulations for the protec-
tion of the rights and interests of women and children.9In March 1991,
the Chinese government signed both the World Declaration on the
Survival, Protection and Development of Children and the related action
plan. The April 1996 white paper on the status of China's children
subsequently reported: "The Chinese nation has long cultivated the
traditional virtues of 'bringing along the young' and 'loving the young',"
and the 1996 report linked the open door and economic reform policies
to the internal move to place children's programming on to the "social,
scientific and legal tracks."10
The State Council Work Committee formally assumed responsibility
for departmental implementation of both the February 1992 National
Programme of Action for Child Development in the 1990s and the April
1992 Law on the Protection of Women's Rights and Interests. The action
orientation and comprehensiveness of the latter was regarded as pivotal to
China's 1980 treaty commitment to the elimination of gender discrimi-
nation and to the honouring of Nairobi forward-looking strategies."
The new women's law was featured in a mass publicity campaign
which purportedly integrated a legal education process with specific
projects dealing with literacy, technical education, maternal health care,
prostitution and increasing the rate of girls' enrolment in the rural
elementary school system.12 It enhanced the legal responsibilities of mass
associations and promoted the integration of legal and social protection,
but it did not explicitly challenge the Party's top-down pattern of
"comprehensive management of public order,"shehui zhian zonghe zhili.
This has since 1978 sanctioned unified, if not orchestrated, state and
societal action in support of Party goals, and it directly conflicts with
Western judicial autonomy and the "civil society" preference for genu-
inely non-governmental organization.
The State Council's Work Committee nationally co-ordinated public
education exercises which brought it together with the Chinese Com-
munist Party (CCP) Central Committee Propaganda Department, the
9. Sixteen of these regulations have been translated in Yuanling Chao and Richard Sao
(eds.), "Provincial laws on the protection of women and children," Chinese Law and
Government, Vol. 27, No. 1 (January-February 1994), passim.
10. "The situation of children in China," BR, 22-29 April 1996, p. 21.
11. "The report of the PRC on the implementation of the Nairobi forward-looking
strategies for the advancement of women," BR, 24-30 October 1994, p. 10. Also see the June
1994 white paper, "The situation of Chinese women," which highlights this law in its
discussion of equal legal status in BR, 6-12 June 1994, pp. 12-13.
12. Wang Rong, "Women's rights awareness drive put on the move," China Daily, 10 June
1992, p. 3.

Ministry of Justice and the Women's Federation. The Working Com-

mittee assumed responsibility for the implementation of the 7 August
1995 "Outline of Chinese Women's Development 1995-2000," many
provisions of which presaged the Beijing Declaration and Action pro-
gramme.13
Chen Muhua was vice-chair of the NPC Standing Committee and
president of the UN Fourth World Conference on Women. In the summer
months before the conference Chen joined other NPC Standing Com-
mittee members in a high profile fact-finding tour of the hinterland of
Yunnan province and the Guangxi zhuang Autonomous Region to assess
the problems in enforcing the new law in ruralminority areas.14 Just prior
to the formal opening of the conference, Chen claimed that its convoca-
tion in Beijing "is a full confirmation of the tremendous achievements of
China's burgeoning women's liberation movement." She highlighted new
domestic legislation and drew on a wealth of internal and international
statistics to conclude that China's women's liberation movement
"demonstrates that China's human rights situation has fundamentally
changed."15
At the conference welcoming ceremony, Chinese President Jiang
Zemin claimed that the Chinese government "has always regarded gender
equality as an important measurement of civility." Jiang focused on
women as "promoters of social development" who make "a special
contribution to the reproduction of the human race."16The international
media alternatively headlined the subsequent remarks of Hillary Rodham
Clinton who raised outstanding criticisms of female infanticide, forced
sterilization and abortion. Her reference to inadequate non-governmental
participationat Huairou was a pointed criticism of Chinese organizational
deficiencies. 7
Chen Muhua defended China's recent record citing the "Outline of
Chinese Women's Development" and reiterating the importance of a
complete legal system which would synthesize provisions scattered
across the various departments of Chinese law (such as constitutional,
civil, economic and administrative), so as to protect women's rights and
interests across the entire spectrum of state and social activity. She
underlined the importance of the expanded inter-departmental cross-
referencing of related provisions of the Marriage Law (1980), Election
Law, Inheritance Law (1985), Mandatory Education Law (1986), Pro-
13. "An outline of Chinese women's development 1995-2000", in FBIS-CHI 95-154,

10 August 1995, pp. 13-19. The Chinese text is available in Xinhua yuebao, No. 10
(1995), pp. 48-55. The Beijing Declaration was carried in the BR, 16-22 October 1995,
pp. 8-10.
14. "ChenMuhua profiled,"Xinhua, 4 September 1995 in FBIS-CHI 95-171, 5 September
1995, pp. 31-32.
15. "Speech by Chen Muhua: equality, development and peace are the common pursuit
of women all over the world," Xinhua, 2 September 1995 in FBIS-CHI 95-174, 8 September
1995, pp. 4, 6.
16. "Text of Jiang's speech," FBIS-CHI 95-171, 5 September 1995, pp. 21-22.
17. Hillary Rodham Clinton, "Women's rights are human rights," in Vital Speeches of the
Day, Vol. lxi, No. 24 (1 October 1995), pp. 738-740.

cedural Law on Civil Affairs (1991), Labour Law (1994) and The PRC
Law on Protecting Women's Rights and Interests (1992). At the same
time there has been a deliberate convergence of mutually reinforcing laws
relating to women and children in the law texts and in the NPC's
legislative agenda. The PRC Law on Protecting Women's Rights and
Interests is widely regarded as the key legislation which sponsors gender
equality and special rights. The PRC Law on the Protection of Minors
(1991) is similarly acclaimed as the centrepiece of a new programme to
enhance children's rights and interests. The December 1995 white paper,
"The Progress of Human Rights in China," cited the law's new provisions
on the respective responsibilities of family, school, society and judicial
institutions and claimed that as a result of the legislation "the protection
of children is now within the scope of the law."'8 The April 1996 State
Council white paper on the status of China's children featured the
"comparativelycomplete provisions" of new law, citing the integration of
the state constitution, criminal law and civil law with the marriage law
(1980), education laws (1986 and 1995), law on the disabled (1990), the
Law on the Protection of Minors (1991), the Law on Protection of
Women's Rights and Interests (1992), Law on Maternal and Infant Care
(1994), Law on the Prevention and Control of Infectious Diseases (1989)
and the Law on Adoption (1991).
Whatever one may say as to current Chinese human rights perform-
ance, the issue of human rights within China itself has become much
more internationalized. Western influence and ideas have permeated
Chinese legal thinking and yet the Chinese still have their own distinctive
view of the legal and social protection of rights and interests, defined to
respond to changes in contemporary Chinese society.
The Changing Chinese Approach to Social and Legal Protection

The current emphasis on a complete legal system has been pursued in
tandem with a familiar state-sponsored social activism based on an
updated mass line organizational strategy. In the past such strategy often
negated the formal legal response to change. Some Western observers
saw swings between the "jural" (formal) and "societal" (informal)
"models" of China's post-1949 political modernization. These models
accentuated the difference between the consolidation of impersonal
codified rules and political socialization reinforced by "extrajudicial
apparatuses."19
Early 1950s' mass line politics encompassed large-scale class struggle
which focused on "education"or "propaganda,"and the political organi-
zation of change through the mobilization of an entire network of
interconnected social agencies and mass associations. In the implemen-
18. "The progress of human rights in China," BR, Special Issue, 1996, p. 21.
19. See Shao-chuan Leng and Hungdah Chiu, Criminal Justice in Post-Mao China
(Albany: State University of New York Press, 1985), p. 7. Also refer to Keith's discussion
of law and the "comprehensive management of public order"in China's Strugglefor the Rule
of Law, pp. 18, 29, 106, 118, 149.

tation of the first PRC marriage law, this approach self-consciously

featured "democratic centralism" and "unified Party leadership" of all
related mass associations towards the achievement of a general call
involving progressive social change. However, in the present era, the
CCP has repudiated "unified Party leadership" and violent class struggle.
The ideological content of the mass line has selectively focused on the
epistemological notion of "seeking the truth from facts" as the practical
basis for understandingsocial reality. The educational and social activism
associated with the traditional mass line has been retained even while
there is a moratorium on large-scale politicized struggle.
Moreover, while mass associations such as the Women's Federation
have had little autonomy in their political role to serve as mobilizing
agents for policy education and information transmission, they are acquir-
ing newly recognized legal responsibilities to help protect the rights and
interests of their specific constituencies through a newly updated system
of social protection. These associations have always had some formal say
in the co-drafting of new laws in their interaction with specific state
agencies, and the way in which they exercise their new legal responsibil-
ities may be qualified by the changing politics of state funding and public
apathy towards the Party regime. However, as the Party weakens there
may also be greater opportunities "to struggle autonomously for group-
defined interests."20
The continuing importance of social activism was recently stressed by
one of China's leading comparative law experts, Beijing University
Professor Shen Zongling. Shen cited the importance of the integration of
law with social activism in the development of Western feminist jurispru-
dence. While recognizing the international relevance of Western theory
concerning "equality rights" and "special rights," he noted that legal
methods can either advance or detract from the cause of gender equality.
He believed that Western feminist jurisprudence had played an important
role in the consolidation of legislation and in the judicial response to
women's rights, but more importantly the law had developed within the
1960s/1970s matrix of social movements in the Western developed
countries.21
The correlation of law and politically sponsored socialization was
addressed in Article 3 of the UN Convention on the Elimination of All
Forms of Discrimination Against Women which explicitly referred to the
need for "activism." Governments were urged not only to pass laws
against discrimination but to foster "all appropriate measures" in the
advancement of women. The latter assumed the modification of social
and cultural patterns of conduct as a matter of public education.
Paul McKenzie has discussed how the UN Convention on the
Elimination of all Forms of Discrimination Against Women projects an
20. In her 1983 study Professor Stacey described China's mass associations in terms of
their functions to inform the "public patriarchy,"and their lack of capacity to initiate policy
independently. Patriarchy and Socialist Revolution in China, p. 228.
21. Shen Zongling, "Nuquanzhuyi faxue shuping" ("A commentary on feminist
jurisprudence"), Zhongguofaxue (Chinese Legal Science), No. 3 (1995), p. 51.

"activism" which insists that the right to sexual equality "transcendsthe

political and civil realm." McKenzie found a parallel rejection in Chinese
"activism" which militates against preconceived Western public-private
distinctions: "However, insofar as this activism dispenses with the
public-private distinction, the Convention might be more acceptable to
China than to a Western democracy adhering to the notion that certain
realms are beyond the legitimate purview of government influence."22
Indeed, Chinese legislation has expanded the legal responsibilities of
mass associations and has formally enlisted them in the cause of "social
protection."
Point 20 of the Beijing Declaration specifically endorsed "the partici-
pation and contribution of all actors of civil society, particularlywomen's
groups and networks and other non-governmental organizations and
community-based organizations with full respect for their autonomy."23It
would certainly be far-fetched to infer that China's mass associations
have become independent agents of "civil society." Even while the Party
has contemplated the qualified separation of party and state in the
economy, it often prefers to deal with contemporary social dilemmas of
interest adjustmentthrough the familiar united front tactics of co-optation
which characterized the pre-1949 history of broadly defined political
alignment to adjust the class struggle to the national struggle.
The contemporary nature of the state-mass association relationship
requires careful analytical scrutiny. NPC legislation has tried to express
a positive association of state and society in the legal protection of rights
and interests. The April 1992 law on women's rights and interests
paralleled the 4 September 1991 law on the protection of minors. Article
5 of the latter called for a comprehensive strategy bringing together "the
state, society, schools and families." Article 3 of the women's law
referred both to the specific responsibilities of the Women's Federation
and the organizational responsibility of the "whole society" inclusive
of state organs, social organizations, enterprises, institutions and
"autonomous mass organizations." Both laws placed a dual emphasis on
the clarification of legal responsibility and a concomitant appeal for social
activism.
Since 1978 the legal system has been accorded unprecedented political
priority. Its formal development has accelerated while class politics have
declined. There is virtually no prospect for a return to the early 1950s'
activist approach to family reform which entwined the popularization of
the new marriage law with the class politics of land reform. To meet the
demands of the new era of economic reform, the Party has had to revise
the organizational parameters of social activism. However, if the Party
has abandoned a focus on highly charged mass campaigns, it has per-
22. Paul McKenzie "China and the Women's Convention: prospects for the implemen-
tation of an international norm," China Law Reporter, Vol. vii, No. 1 (1991), introduction,
p. 34.
23. "Beijing declaration," BR, 16-22 October 1995, p. 9 (author's italics).

sisted with its mass line techniques of education and social activism as
part of a system of social protection and control.
Rights and Interests in Jurisprudence and Legislation

This still leaves the central question of what it is that has to be
protected. The 1990s' NPC legislative agenda has reflected a shift from
"classes" to "interests," but the latter are still in gestation. They do not
have the same monolithic clarity as the former. Party reformers and
critics of the Party believe that the law must respond to new subjective
social needs through the adjustment of rights and interests, but the Party
has yet to confirm a grand theory which comprehensively defines the
contemporary composition of society. Sun Xiaoxia's recent treatment of
fairness in the market economy, for example, discusses social interests as
broadly conceived "public social interests" which transcend "class," in
political science, and "group," in sociology.24 On the other hand, recent
emphasis on "group,"qunti, in contrast to "collective," jiti, is sometimes
used to stress the pluralism of interests in society as distinguished from
the collective harmony of society's constituent elements.25
Marxists might be expected to have an instinctive grasp of rights as
anchored in differing societal interests, if not class relationships; how-
ever, senior conservative Marxist legal theorists, such as Zhang Guangbo
and Gong Pixiang, have immediately sensed the political consequences of
a "pluralizedjurisprudence," duoyuanhuadefalixue, which in their view
promised to expand "interests" at the expense of "obligations."26 Their
critics welcomed the elaboration of a plurality of groups in society as
fully consistent with the advent of Deng Xiaoping's "socialist market."
"Group,"as distinguished from "collective interest," is acquiring a posi-
tive connotation of common interests shared by individuals. Luo Mingda
and He Hangzhou described "interests" as integral with the individual's
human needs and social reality. While orthodox Marxists might argue
that "classes" are objectively determined, these authors drew on Western
philosophy and Marx's interpretationof "civil society." Their "interests"
were defined as "subjectively determined and pursued" and were sani-
tized insofar as they were carefully distinguished from "selfishness."27
However, if the positive, subjective dimensions of new societal interests
are acquiring a greater degree of legitimacy in politics and law, this still
24. Sun Xiaoxia, "Lunfalti yu shehui liyi" ("On law and social interests"),Zhongguofaxue,
No. 4 (1995), pp. 52-53.
25. This is discussed in detail by David Ding, "1980s intellectual re-evaluation of Chinese
democracy," unpublished June 1996 paper cited with author permission.
26. See the report on these debates in "Falixuede gaige yu fazhan" ("Reform and
development of jurisprudence"), Faxue (Law Studies) (Renda), No. 7 (1995), pp. 16-31.
"Pluralized jurisprudence" is discussed extensively in Ronald C. Keith, "Post-Deng
jurisprudence: justice and efficiency in a 'rule of law' economy," currently under editorial
review.
27. See Luo Mengda and He Hangzhou, "Lunrenquandegeti shuxing" ("On the individual
characterof human rights"),Zhengfa luntan (Forum on Politics and Law), No. 1 (1993), p. 56.
On related theory see Keith, "The new relevance of 'rights and interests'," pp. 38-61.

does not clarify the degree to which "interests"will be liberated from the
specifically ascriptive dimensions of traditional political culture and
society.
Moreover, "rights and interests" have been formulated and cited in
very different social and economic contexts, and there is always the
danger that the state might co-opt interests in a politically motivated
prioritization of rights. During a vigorous debate over the proper subject
matter of constitutional law, Professor Tong Zhiwei of the Wuhan law
faculty offered a grand theory on "socio-rights" which, while it tran-
scended the limitations of class analysis, conformed nicely to the Party's
own idealized view of the harmony of state and society. Tong's theory
understood all "interests" as "expressions of wealth in socio-economic
relationships," but it was internally criticized for indiscriminately com-
bining individual interests, public interests and the "spontaneous interests
of society."28
Conservative Communist Party opinion has recognized that the new
focus on rights and interests represents a far-reaching challenge to the
synthesis of rights and obligations which for a long time served the legal
positivism of the state. Even the supposedly more enlightened state
constitution of 1954 deferred to this synthesis in its Third Chapter.Article
94 requiredthat the state "pay special attention to the physical and mental
development of young people," and Article 96 insisted that women
should enjoy "equal rights with men in all spheres - political, economic,
cultural, social and domestic"; however, these rights were developed
within the overall synthesis of rights and obligations. There was only one
brief independent reference in Article 98 to the "just rights and interests,"
zhengdang quanli he liyi, of overseas Chinese.29
The 1950 Marriage Law had made no reference to women's rights and
interests, but the 1980 Marriage Law added a new heading, "Family
Relations," and new and suggestive language asserting: "The lawful
rights and interests of women, children and the aged are protected."30
Article 48 of the new state constitution of 1982 gave constitutional force
to "women's rights and interests."
Article 18 of the 1982 constitution offered to protect the "lawful rights
and interests" of foreign enterprise. A similar emphasis was explicit in the
wording of Article 33 regarding the "lawful rights and interests" of
foreigners within China's sovereign jurisdiction. All such "rights and
interests," however, were outlined either in the first chapter on general
principles or in the second chapter, the title of which reiterated the unity
of rights and obligations.31In 1988, "rights and interests" were featured
28. See Keith, "Post-Deng jurisprudence".

29. Theodore Chen (ed.), The Chinese CommunistRegime. Documents and Commentary
(New York: Praeger, 1967), p. 91.
30. This is the English version provided in BR, 16 March 1981, p. 24.
31. For the Chinese text see Zhonghua renmin gongheguo changyong falii daquan
(Compendium of Often Used Laws of the PRC) (Beijing: Falti chubanshe, 1989), pp. 3, 5,
7-9.

in controversy over the legal definition and protection of private enter-

prise. Article 11 of the 1982 constitution had briefly announced state
protection of the "legal rights and profits of the private economy."
Article 1 of the 1988 "Interim Regulations on Private Enterprises of
the People's Republic of China" elaborated more significantly on
"protecting the lawful rights and interests of private enterprise." Chapter
4, however, returned to the orthodox "unity of rights and obligations,"
quanli yiwu xiang tongyi. The line between state instrumentalism and
legitimate state protection of interests in society was never very clear.
Article 4 reacted against potential exploitation when it emphasized: "the
employees' lawful rights and interests are protected by national law,"
but Article 30 stopped short of a legally required introduction of social
insurance for workers.32The issue surfaced again in the 1992 debates
over the new labour law.
Paradoxically, rights and interests gained greater status after the
Tiananmen Square "massacre" in a fresh round of debate over the legal
dimensions of economic reform. Anxiety over the possible revocation of
the 1986 General Principles of Civil Law proved premature. In fact, the
civil law received even greater priority as a result of the 9 April 1991
promulgation of the Law of Civil Procedure of the PRC. The advocates
of legal reform claimed that this new law enhanced "subject equality"
before the courts and that it extended "women's rights and obligations in
civil lawsuits."33
The focus on "protection of women's lawful rights and interests,"
baozhang funiide hefa quanyi, was integral to the post-Tiananmen human
rights debates, which challenged the orthodox view of "unity of rights
and obligations." The conventional dialectic in the law texts, "rights are
but obligations and obligations, rights," was criticized as a phony "unity"
sacrificing "rights" to overweening state power.34
Within the Party's reform wing, human rights advocates supportednew
laws to protect rights and interests, but they also focused on
"authenticity,"one of the three basic principles set out in the November
1991 white paper on human rights. The white paper announced the state's
intention to provide "guarantees in terms of system, laws and material
means for the realization of human rights." Legislation was considered
part of a larger effort throughout society to help shape societal attitudes
favourable to the development of human rights. The law could help
clarify and entrench new standards, but it was also assumed that rights
could only develop out of social reality and consciousness. "Legal
rights,"fading quanli, for example, were theoretically distinguished from
the "actual rights," shiyou quanli, which more widely reflect social
32. This 1 July 1988 law is provided in translation in BR, 6-12 March 1989, documents
IX-XIV.
33. See "The report of the PRC on the implementation of the Nairobi forward-looking
strategies," p. 9.
34. Albert Chen has analysed three different schools of opinion in terms of "rights-
oriented," "obligations-oriented" and "equal emphasis on the consistency of rights and

consciousness and practice. Furthermore,social protection and activism

were critical to the practical enjoyment of those rights which had already
been set out in the law.35
Rights and interests have been assigned greater priority as a result of
the internal debate on human rights, and the adjustment of interests has
been justified in relation to the Party's open door and economic reform
policies and the need for social stability. Rights and interests have been
incrementally assigned in legislative instalments not only to women and
children, but also to the handicapped, workers, overseas Chinese, private
households and private entrepreneurs. The legislative agenda has incre-
mentally reflected a prioritization of rights and interests. However, in an
era when policy is no longer "the soul of law," the conceptual boundaries
between these categories of interest have been defined in an episodic way
in particular legislation and related jurisprudential controversy.
The selective and incremental prioritization of interests is inevitably a
matter of politics and the distribution of declining state resources. While
open door and economic reform considerations may dictate greater focus
on the protection of rights and interests, Party leaders may find it difficult
to resist a functional emphasis on the legal protection of those "newly
emerging interests" which are thought to make the most effective con-
tribution to the economy. Furthermore, "interests" may be prioritized
either to prevent challenge to the family or to facilitate increased pro-
duction.
The Party has vested much of its remaining political prestige in the
apparent material advantages of a "socialist market," but it has at the
same time had to deal with the destabilizing consequences of materialism.
The February 1994 report on China's implementation of the Nairobi
strategies acknowledged that, while China was in the Asia-Pacific Region
where the trend of economic development was generally upward, there
are still "problems": "The problems facing China are insufficient funds
and materials that can be used directly for women's participation in
production and the phenomenon of occupational barriersin the course of
economic transition."36
The June 1994 white paper on the status of women reiterated this:
"China is a developing country. Owing to the constraints of social
development and the influence of old concepts, the condition of Chinese
footnote continued
obligations." See Albert Chen, "Developing theories of rights and human rights in China,"
in Raymond Wacks (ed.), Hong Kong, China and 1997: Essays in Legal Theory (Hong Kong:
Hong Kong University Press, 1993), pp. 123-149.
35. "Humanrights in China," BR, 4-10 November 1991, documents, p. 9. The distinction
betweenfading quanli and shiyou quanli was pivotal to Li Buyun's major new theory on the
forms of human rights. For discussion of Li Buyun, "Lunrenquandesanzhong cunzai xingtai"
("On the three extant forms of human rights"), Faxue yanjiu, No. 4 (1991) see Keith, "The
new relevance of 'rights and interests'," p. 48.
strategies," p. 12.

women is still not wholly satisfactory."'37 Chinese politics is likely to

witness future battles over the state's legal responsibility for the rising
social inequalities of economic reform. Moreover, mass associations
representing social interests are becoming increasingly involved in a
competition for legal recognition and shrinking central resources.
The lack of resources is a fundamentalproblem. China's social security
system is, for example, frankly described as "multi-layered."New old age
and unemployment insurance systems are supposed to develop first in the
cities. Support for the rural aged "will be shouldered chiefly by their
families and supplemented by community assistance."38 Such expedient
policy challenges the renewed emphasis on improving the status of rural
women and casts doubt on the new legislated commitments to provide a
wider range of state-sponsored services to women and children.
If economic reform now demands a "rule of law" which in the name
of increased productivity fosters autonomous economic interests, regime
ideology still persists in its belief that social justice is more likely under
Chinese socialism. Deng Xiaoping's "three favourable directions," sange
youli yu, namely, the liberation of productive forces, the elimination of
exploitation and polarization in society and the achievement of common
prosperity, have been used to justify competing arguments for efficiency
and social justice.39
There has been strong controversy in the West over the potential
development of "civil society" in China.40Some scholars argue that the
market will generate civil society. Others have drawn on traditional
political culture to extrapolate from the Chinese moral continuum be-
tween state and society the contemporary development of soft forms of
37. "The situation of Chinese women," BR, 6-12 June 1994, documents, p. 9.
38. "Decision of the CPC CentralCommittee on some issues concerning the establishment
of a socialist market," BR, 22-28 November 1993, p. 23.
39. For Deng's original Southern Tour remarks see Deng Xiaoping wenxuan (Deng
Xiaoping's Selected Works), Vol. 3 (Beijing: Renmin chubanshe, 1993), p. 373. Also see
Zhang Guangbo, "Xuexi Deng Xiaopingjianshe you Zhongguo tese shehuizhuyi lilun, yindao
faxue yanzhe zhengque daolu xiangqian fazhan" ("Studying Deng Xiaoping's theory on the
establishment of socialism with Chinese characteristics to advance jurisprudence in the right
direction"), Zhongguo faxue, No. 4 (1995), p. 42.
40. See Barrett McCormick, Su Shaozhi and Xiao Xiaoming, "The 1989 democracy
movement: a review of the prospects for civil society in China," Pacific Affairs, Vol. 65, No.
3 (Summer 1992), p. 187; Thomas Gold, "Party-state versus society in China," in Joyce
Kallgren (ed.), Building a Nation-State: China after Forty Years (Berkeley: Centre for
Chinese Studies, China Research Monograph, No. 37), p. 150; Thomas Gold, "Theresurgence
of civil society in China," Journal of Democracy, Winter 1990, p. 20; Heath Chamberlain,
"Coming to terms with civil society," Australian Journal of Chinese Affairs, No. 31 (January
1994), p. 117; Martin Whyte, "Urban China: a civil society in the making," in Arthur
Rosenbaum (ed.), State and Society in China (Boulder: Westview Press, 1992), pp. 98-99.
In commenting on Dorothy Solinger' s synthesis of autonomy and control in the Rosenbaum
book, Vivienne Shue suggested that even as the state "erodes" it can also "reinvent itself,
adapting its structureand its ethos to its changing social context." See Vivienne Shue' s review
of Rosenbaum's edited volume in CQ, No. 135 (September 1995), p. 606. Shue comments
further on the "state-society paradigm" in her review article, "Grasping reform: economic
logic, political logic and the state-society spiral," CQ, No. 144 (December 1995),
pp. 1180-81.

corporatism and consultative authoritarianism.In China, itself, some civil

law experts have creatively reinterpretedMarx's writings on civil society,
but there is also a wider search throughout China's legal community for
an explanation of how the state can foster the adjustmentof interests, liyi
tiaozheng, so as to capture the specific dimensions of China's society,
political culture and stage of development. In facilitating the socialist
market the state may well have to shrink before society, but at the same
time it is called upon to facilitate a fair and fresh redistribution of
interests within a system of social protection.
Domestic urgency relates to Party leadership anxiety over social
stability and regime survival. The latter is tied to the continuing impact
of the Cultural Revolution on family relations and values, and to the
current proliferation of inequities in the contemporary "socialist market."
The CulturalRevolution is widely believed to have precipitated a decline
in Chinese family values which is correlated with increasing crime. Such
analysis came at the same time as the Nairobi focus on an international
crisis of domestic violence. Since the CulturalRevolution Chinese analy-
sis has often focused on juvenile delinquency as a rising component in the
overall crime rate.41China's legal scholars have emphasized an unpre-
cedented rise in family violence, human trafficking, prostitution, child
labour, infanticide and drug-related crime. The regime is in significant
decline, and the logic of economic reform seems, at times, to encourage
a separation of society from the state. On the other hand, the Party
leadership continues to act as a "public patriarchy,"and its new legisla-
tive strategy for rights and interests highlights mixed notions of protec-
tion and social control. Perhaps most intriguing in this regard is the
state's enhanced legal involvement in family matters concerning abuse
and sexual violence.
The April 1992 law on women's rights and interests paralleled the 4
September 1991 law on the protection of minors. Article 5 of the latter
called for a comprehensive strategy bringing together "the state, society,
schools and families." Article 3 of the women's law referred both to the
specific responsibilities of the Women's Federation and the organiza-
tional responsibility of the whole society, including state organs, social
organizations, enterprises and "autonomous mass organizations." Both
laws contained a dual emphasis on the clarification of legal responsibility
and a concomitant appeal for social activism. They promoted a similar
conception of social protection predicated in an inclusive division of legal
41. Shao Dengsheng claims that there are two basic views on the causal connection
between the Cultural Revolution and the subsequent rise of juvenile delinquency. His own
view is: "Withoutthe 'culturalrevolution', this peak period would never have occurred."Shao
does recognize another view which holds that "...it is too simplistic to attributejuvenile
delinquency to the 'cultural revolution alone..." Preliminary Study of China's Juvenile
Delinquency (Beijing: Foreign Languages Press, 1992), p. 56. Borge Bakken has challenged
the proponents of Shao's view arguing that the government in its defence of Chinese moral
and cultural values "vastly over-reacted" to juvenile delinquency as a "perceived threat to
social order." See Borge Bakken, "Crime, juvenile delinquency and deterrence policy in
China," Australian Journal of Chinese Affairs, No. 30 (July 1993), p. 29.

and moral responsibilities cutting across the state, society, family and
individual.
Protecting Minors' Rights and Interests

Given Chinese self-perception of "loving the young," Party leaders
have been outraged by alleged Western "fabrications"of child abuse in
China. The April 1996 white paper, for example, responded to the
specific allegations of the British television programmes of 14 June 1995
and 9 January 1996 on the "dying rooms" in Hubei and Guangdong
welfare homes, and the related allegations of a Human Rights Watch/Asia
report of 7 June 1996 concerning the institutional abuse and starvation of
Chinese orphans in Shanghai.
The white paper starts with statistics culled from the UN's basic
indexes in the 1996 State of the World's Children Report to demonstrate
the general improvement in the life of children. It notes that in 1994 in
five unidentified developing countries children's mortality rate was 101/
1,000 and 56/1,000 in East Asia and the Pacific regions and 43/1,000 in
the PRC. Taking the data for 1980-94, the white paper notes that while
children of low weight constituted an average of 35 per cent of their
respective cohorts in the developing world, this figure dropped to 23 per
cent for East Asia and the Pacific and to 17 per cent for China. These
findings, however, do not directly refute Kay Johnson's conclusion:
"Nowhere is the tenacious Chinese preference for sons more obvious than
in China's orphanages."42
Domestic legislation on the protection of minors' rights and interests
reflects a synthesis of domestic and international concerns regarding the
effects of the Cultural Revolution and economic reform on family life,
and Chinese co-sponsorship of the UN Convention on Children's Rights.
Internal legislative development professed to integrate the UN guidelines
with China's "actual situation." New law enhanced the powers of the
state to intervene within the family to protect the rights of children.43The
domestic interpretationof the "actual situation"is analytically interesting.
As juvenile crime has become an increasing political concern, the state
has formalized the rights of minors vis-a-vis their parents and has
generalized the subjective dimensions of their own independent interests
even while formally subscribing to the Chinese tradition of "loving
children." On the other hand, while the law has become more complete,
the NPC's legislative strategy has drawn upon those remedial elements of
mass line thinking and community organization which emphasize edu-
cation and reform over the punitive dimensions of the criminal law.
42. "The situation of children in China," p. 20. Kay Johnson has raised the very pertinent
criticism that while the poorer segments of China's population have witnessed increasing
prosperity, Chinese orphanages are still disproportionatelyfilled with girls. See Kay Johnson,
"Chinese orphanages: saving China's abandoned girls," Australian Journal of Chinese
Affairs, No. 30 (1993), pp. 61-88.
43. According to Professor Yu Shutong, adviser to the Internal and Judicial Affairs
Committee of the NPC. See "NPC adviser on protecting minors' rights," Xinhua, 6 December
1991 in FBIS-CHI 91-235, 6 December 1991, p. 24.

The formal subscription to such a principle is striking in that the

specific formulation, "comprehensive management of public order," was
originally conceptualized in the Party's June 1979 response to the extra-
ordinary post-Cultural Revolution rise in juvenile delinquency.44 This
sharply contrasts with the situation in the field of economic crime where
"management" encompassed "severe crackdown" and an internationally
criticized application of new categories of the death penalty.45
If formal policy on juvenile crime has diverged from the general
historical focus on deterrence and the punitive dimensions of the criminal
law, the state has, by traditional standards, intervened aggressively into
areas of parental responsibility and action in favour of the protection of
minors as independent subjects before the law. Under the NPC Law
Committee's revisions to Article 12 of the 4 September 1991 Law on the
Protection of Minors, offspring acquired the right to sue parents for
failing to uphold parental duties or for infringing minors' "legitimate"
rights.46Article 12 extended Article 16 of the General Principles of Civil
Law. Under the 1986 law on education, minors were required to attend
school for nine years, and the law included provision for the suspension
of the right of guardianship in cases of infringement whereby parents
prematurely suspended a minor's education for the purposes of "child
labour." The new law incorporated an entire chapter on "school protec-
tion" which outlines explicitly a very wide range of school and teacher
responsibilities with regard to minors' rights and interests. For example,
under Article 13 of Chapter 3 the schools "are to comprehensively
implement the state's educational principles and give moral, intel-
lectual, physical, aesthetic and labour education to students as well as
giving guidance to their social life and giving them knowledge about
puberty."
The 4 September law was woolly. While it constituted a general charter
statement setting out standards of behaviour and related social activism,
it was supposed to stipulate clear legal responsibilities which would
contribute to the enforcement of law. Parental duties were, for example,
very widely construed in Article 10: "Parents or other guardians are to
use healthy thoughts, good conduct, and proper methods to educate
minors, guide minors to engage in activities good for their physical and
mental health, prevent and stop minors from smoking, indulging in
alcoholic drinking, roaming about, gambling, taking drugs and prosti-
tution." This wording was actually toned down in the NPC revision
44. See Wang Zhongfan (ed.), Zhongguo shehui zhian zonghe zhili de lilun yu shijian
(Theory and Practice of Comprehensive Management of Public Order) (Beijing: Qunzhong
chubanshe, 1989), p. 4.
45. For discussion of this sector of the law refer to Ronald C. Keith and Lin Zhiqiu,
"Fighting corruption in China's 'rule of law economy'," unpublished paper currently under
review.
46. The Chinese text of this law is in Funii he weichengnianren falii baohuquanshu
(Complete Volume on the Legal Protection of Women and Children) (Beijing: Zhongguo
jiancha chubanshe, 1991), pp. 10-16. The English text is in FBIS-CHI 91-174, September
1991, pp. 36-40.

process, but the draft insisted that parents were legally bound to stop their
teenagers from "roaming about," liudang. In this case, the law lapsed into
a semi-traditional form of admonishment, and a morally conceived
parental mentoring was subsumed within the wider dimensions of
"comprehensive management of public order" calling for the continuous
co-ordination of courts and community associations.47
The need for protection of rights and interests was recognized as
self-evident, but the new law also proposed social control through
education and reform. Article 5 treated parents as only one of a very wide
range of responsible parties. The protection of minors' rights and interests
was construed as a "common duty (gongtong zeren) for state organs,
armed forces, political parties, social organizations, enterprises, institu-
tions, mass organizations of self-management at the grassroots level in
urban and rural areas, guardians of minors, and other adult citizens." This
Article supported the informal conventions of neighbourhood mediation
and intervention when it declared: "All organizations and individuals
have the right to practise dissuasion against or take action to stop
behaviour infringing upon the rights and interests of minors, or to lodge
reports or accusations to the departments concerned."48
Articles 3, 5 and 36 highlighted the same inclusive organizational
relationship of state, society, schools and families. Xi Jieying, a member
of the NPC group responsible for the affairs of young people, commented
on how the 4 September law reflected four such related categories of
protection.49In this view, any violation of rights and interests called for
formal legal action in deliberate co-ordination with community associa-
tions and schools, together with education and propaganda so as to
challenge prevailing habits and social traditions.5"
The law synthesized rights protection and state-controlled social net-
working. Article 15, for example, serves notice that teaching staff of
schools and kindergartens "are to respect the human dignity of minors,
and must not carry out corporal punishment in obvious or disguised forms
against underage students and children." There is no attempt in the 4
September law itself to identify what is a "disguised form of corporal
punishment," bianxiang tifa, and no list of specific sanctions. However,
Article 52 strictly reinforces any person's criminal liability for the
infringement of personal or other legitimate rights of minors with explicit
reference to Article 182 of the Criminal Law detailing criminal punish-
ment for abuse of minors by family members.51
47. "Song Rufen reviews draft laws," BR, 3 September 1991, FBIS-CHI 91-172, 5
September 1991, p. 27.
48. "Law of the PRC for the protection of minors," Xinhua, 4 September 1991, in
FBIS-CHI 91-174, 9 September 1991, p. 37.
49. "Minors protected under the law," BR, 22-28 June 1992, p. 25.
50. This kind of approachwas previously explicit at the provincial level; for example refer
to "Regulations of Heilongjiang province on the protection of women's and children's lawful
rights and interests," Chinese Law and Government, Vol. 27, No. 1, January-February 1994,
p. 11.
51. Keith, China's Struggle for the Rule of Law, p. 111.

The new law was designed to address directly the declining health of
the Chinese family. While Chinese crime rates are still extraordinarily
low by international standards, the potential for abuse, juvenile delin-
quency and the level of family violence as a whole has become a political
priority in China's legal circles.52In a context of dramatic value change,
the new materialism of the socialist market has strained familial relation-
ships. Child labour is acknowledged as a pressing social problem requir-
ing strong legal action, and China's political leadership is still concerned
about the way in which Cultural Revolutionary "leftist" excesses harmed
family life.
While the 4 September law gave new precedence to the protection of
rights and interests, the 29 December 1991 Adoption Law was cast from
within a revised reference to the orthodox "unity of rights and obliga-
tions." Article 1 referred to safeguarding the rights of all parties involved
in adoption. Article 2 stated: "An adoption shall benefit the rearing and
growth of an adopted minor and shall follow the principle of equality and
voluntariness. It may not violate social morals." These are not described,
but Article 3 inveighs against the use of adoption as a legal vehicle for
escaping family planning obligations. Unlike the 4 September law, the
Adoption Law paid little formal homage to rights and interests.53In April
1992, however, these received unprecedented priority in relation to
women.
The Lawful Protection of Women's Rights and Interests

The April 1992 Law on the Protection of the Rights and Interests of
Women gave a strong formal reference to rights and interests and
deliberately moved beyond the formal language of the 1950 and 1980
Marriage Laws. Article 1 of the first Marriage Law (1950) had briefly
referred to the "protection of the lawful interests of women and children"
and Article 2 of the 1980 Marriage Law stated: "The lawful rights and
interests of women, children and the aged are protected." However, this
early nomenclature was developed from within "rights and obligations"
whereas the 1990s' legislative strategy independently features "rights and
interests."
China's official February 1994 report on the Nairobi strategies de-
scribed the 3 April 1992 law as "an embodiment of China's commitment
52. The term, "legal circles" is often used in China to indicate legal scholars and jurists.
More loosely used it may include legal experts in the justice system and NPC. Borge Bakken
suggests that the Chinese have "...vastly over-reacted to this perceived threatto social order,
in an effort to demonstrate the government's defense of moral and cultural values at a time
of dramatic economic and social change." See Bakken, "Crime, juvenile delinquency and
deterrence policy in China," p. 29. The December 1995 white paper recently put a different
slant on the issue of abuse by emphasizing the different conditions in the West and China,
hence the statement: "The family violence common in some Western countries is relatively
rare in China." See "The progress of human rights in China," p. 20.
53. "Adoption Law of the PRC," Xinhua, 29 December 1991 in FBIS-CHI 91-251, 31
December 1991, pp. 18-20.

to the Convention on the Elimination of All Forms of Discrimination

Against Women."54 As in the earlier law on minors, the notion of
"protection"was directly incorporated into the title of the law. The title
also symbolically signalled the ascendance of "rights and interests"
terminology. With the exception of Article 6, encouraging women to
"fulfil obligations prescribed by law," the unity of "rights and obliga-
tions" was not referenced.
The new law addressed growing internal political frustration over the
apparenterosion of women's opportunities for employment and education
in the hostile context of economic reform. Commenting on Chapter 4's
provisions on the right to work, NPC reformers reiterated that women
accounted for 70 per cent of the urban jobless and 70 per cent of the
estimated 180 million illiterates in contemporary Chinese society.55
The June 1994 white paper later claimed that the 3 April 1992 law
provided "an operational legal basis for enforcement of the law." Some
75 per cent of the 54 articles detailed the consequences and legal
responsibilities for infringements.56While this law may have represented
a significant step forward, official commentary at the time of the UN
Fourth World Conference on Women acknowledged that its enforcement
was still in an "initial stage" and that the state would have to commit
many more resources over the long term to insure full implementation.57
At the time of the original drafting in March 1992, the NPC Law
Committee debated revisions which revealed an interesting controversy
on how rights and interests are organizationally sustained in society.
Some reformers were impatient with the Women's Federation's conserva-
tive leadership, and there was even suggestion that women's associations
be disbanded at all levels.58 This challenged the Party's agenda to update
the mass line. The same issue later informed the internationalcontroversy
over the organization of the UN conference. An unsigned letter from a
Chinese conference participant alleged that China's Women's Federation
is a "branchof the Chinese government" and an "obstacle to equality and
freedom" in that it pre-empted real non-governmental groups from at-
tending the conference.59
The adoption of rights and interests in the 3 April 1992 law reiterated
the regime's new commitment to legal and social action to deal with the
strategies," p. 10.
55. A more positive gloss on this situation was put forward in a December 1995 report
which claimed that the number of working women in cities and towns had risen from 52.94
million in 1990 to 56.45 million in 1994 and the ratio of women in the whole work force is
38% while women account for 50% of the work force in the countryside. See "The Progress
of human rights in China," p. 20.
56. BR, 6-12 June 1994, p. 13.
57. "Implementation of the law on safeguarding the rights and interests of women," BR,
4-10 September 1995, p. 12.
58. See "Women and reform", China News Analysis, No. 1477 (15 January 1993), p. 3 and
Keith, China's Struggle for the Rule of Law, pp. 112-13.
59. "Women's conference participant issues protest," Eastern Express, 22 September
1995, p. 13 in FBIS-CHI 95-185, p. 23.

inequities originating in economic reform. The NPC Law Committee

obliquely responded to criticisms of the Women's Federation's traditional
mass-line approach by including new wording in Article 3 which stated
that not only the state organs, social and mass organizations had respon-
sibilities to protect these rights and interests, but that the responsibility
had to be "shared by the whole of society."60
The law on women similarly endorsed a continuous division of labour
between state and society so as to guarantee the social protection of
rights. It described a process of social reform which encompassed
both formal legal and wider social responsibilities. This approach was
explained in the Renmin ribao's editorial exhortation to women to take
up the practical task of implementing the principles stated in the new
law:
The workof protectingwomen'srightsandinterestsinvolvesvarioussocialaspects,

andits progressdependson the endeavoursof the entiresociety.Hence,it calls for
societyto showconcernfor andgive supportandhelpto the implementation of the
Law on ProtectingWomen'sRightsand Interests,and createa favourablesocial
environment...According to theirown limits of authority,variousrelevantdepart-
mentsin societymustperformtheirobligationsof protectingthe rightsandinterests
as stipulatedby the law; have a divisionof labourwith individualresponsibilities;
co-ordinatewitheachother;andemployvariousadministrative, economicandlegal
meansto bringtheiractivitiesintoline andexercisean overallcontrolso as to ensure
the implementation of the Law on ProtectingWomen'sRightsandInterests.61
While Article 3 introduced some qualified element of compromise,

Article 5 reaffirmed the "supporting roles" of the Trade Unions and
Youth Leagues and conceded the Women's Federation's primary role in
representing and safeguarding women's rights and interests. Article 12
re-focused on women's participation in political life and stressed that
women's federations at all levels "may recommend" women cadres to
positions in state institutions and enterprise. Article 10 was imprecise in
its commitment to the promotion of women cadres as it obliquely referred
to the need for "adequate numbers of women's delegates." China's 1994
response to the Nairobi strategies more specifically offered to keep the
election of women's deputies at all levels above 20 per cent.62
Stanley Rosen's recent analysis of women's participation in political
life suggests that, in comparison with the currentreform era, the Cultural
Revolution period encompassed greater change in the real rates of
political participation through "state mandated official quotas." Rosen
concluded somewhat ambivalently that the current reform era has not
only created the opportunity for a revival of traditional prejudices but
60. "PRClawprotectingwomen'srightsandinterests,"FBIS-CHI92-072,14April1992,
pp. 18-21.
61. "Important legal weaponfor protectingwomen'srights,interests,"Renminribao, 10
April 1992, p. 1 in FBIS-CHI92-075, 17 April 1992, p. 39.
62. "The Reportof the PRC on the implementationof the Nairobiforward-looking
strategies,"p. 8.

weakened the state's institutional ability to advance the cause of women' s

liberation:
Reformled to the declineof women'sstatusin some areasand the rise of some
elementsof civil societyin otheraspects.Putanotherway,the mostsalientquestion
has been the relationshipbetweenmodernization and governmentinterventionin
promotingwomen'sparticipation. As [Women'sFederation] leadershavesuggested,
"women'sliberation"will improvealong with the developmentof the productive
forces...However,a decision to rely solely on the market,with a concomitant
reductionof state intervention,seems likely to lead to less, ratherthan more
in sociallife by Chinesewomen,at least in the shortterm.63
participation
The issue of a legislated quota system within the state congressional

system arose at the time of the drafting of the new 1992 women's law.
Those who argued that the shortage of women candidates might stymie
the local election process managed to thwart the stipulation of a legal
quota. The NPC Law Committee concluded that the level of participation
would vary from place to place; however, subsequent provincial attempts
to implement the new law followed two different tracks. Some provinces
fixed the proportion of women's deputies while others fixed the pro-
portion of women's candidates. The latter response was inspired by the
same fears over whether failure to ensure a fixed proportion of deputies
might nullify the election process.64
In response to internationalcensure, the Chinese government has often
stressed the redeeming nature of the April 1992 law on women's rights
and interests; however, there has been internal criticism which argues that
the law already needs revision and development. Prior to the Fourth
World Conference on Women, Ma Yinan of the Beijing University Law
Faculty stated the urgent need for clearer stipulation of the legal respon-
sibilities of those who violate the law's provisions. Ma wanted to extend
the scope of administrative disciplinary measures which only apply to
state or collective enterprises and thus do not fit the reality of the market
economy. The implication was that the denigration of human rights was
especially serious within private, joint and foreign-owned enterprises
which lie outside the reach of state disciplinary procedures.
Ma also urged revision to Article 50 which presumes that violations of
rights and interests in the workplace can be effectively taken up by the
leadership of the work unit or "higher authority." In Ma's view there is
no clear understandingof who constitutes "higher authority"and the Law
of Administrative Procedure makes it almost impossible to appeal to the
people's courts to start administrative procedures against either the
victim's work unit or an undefined "higher authority" for failure to take
63. Stanley Rosen, "Women and political participationin China,"Pacific Affairs, Vol. 68,
No. 3 (Fall 1995), p. 339.
64. This is based on the explanation of Ma Yinan who states a preference for fixing the
pool of candidates in "Guanyu wanshan funu quanyi baozhangfade ruogan sikao" ("Several
thoughts on the perfection of the law on the protection of women's rights and interests"),
Zhongguofaxue, No. 5 (1994), p. 102.

disciplinary action against those who had violated the 1992 law.65Even
if the law were abundantly clear, this still begs the question of whether
state administrative discipline is an optimal method for dealing with
official failure to apply the law against public functionaries.
The April 1992 law expressly targeted workplace violations or dis-
crimination which dealt with things such as pregnancy and maternity
leaves, salary and benefit inequities, and housing subsidies. It addressed
the issue of violence and abuse of women and girls in Chapter VI on the
rights of the person and also tangentially in the final listing of Article 160
of the Criminal Law which refers to the humiliation of women in a
context of public disorder or "hooliganism."
Issues of prostitution and the abduction and sale of women and
children had already been given sustained treatment in two earlier
decisions of the Seventh National People's Congress on 4 September
1991. This was part of a wider attack on the social network sustaining
prostitution, stipulating heavier criminal penalties as well as increasing
the time of "mandatory corrective legal and moral education."66Provi-
sions on abduction and kidnapping exposed state personnel to criminal
prosecution for failure to act in the protection of women and children. An
extended notion of criminal liability for networking reflected a renewed
emphasis on the "comprehensive management of public order" as well as
the human rights concern for legal protection of rights and interests. The
April 1992 law was supposed to make the existing set of laws much more
complete, but it did not refer to the new issue of "sexual harassment,"
xing saorao. During a Hong Kong meeting of American and PRC experts
prior to the Fourth World Conference on Women, there was an exchange
of opinion on family violence. PRC scholars evinced interest in American
law dealing with rape within marriage. They also acknowledged that the
problem of sexual harassmentin China's work and learning environments
would eventually have to be addressed. Zhang Xianyu's report of the
discussion noted that the concept of sexual harassment was still under
study in China, but stated the case for the development of new law as
opposed to the suggestion that existing criminal law on hooliganism
might be creatively extended to cover sexual harassment.67
The Maternal, Infant Health Care Law of 27 October 1994 caused a
storm of international human rights criticism. The Chinese Minister of
Health, Chen Minzhang, informed the media that the December 1993
draft was rewritten in the wake of international outcry over references to
"eugenics" and "inferior births."68Chen complained that while inter-
national criticism had exclusively focused on an unclear Chinese lan-
guage reference to yousheng, translated as "eugenics," the government
was keenly interested in the special rights of mothers and was seeking a
65. Ibid. pp. 104-105.
66. Keith, China's Struggle for the Rule of Law, pp. 107-108.
67. Zhang Xianyu, "ZhongMei guanyu 'Dui funude baoli qinfan' guoji yanjiu taohui
shuping" ("A review of the Sino-American international conference on 'violence against
women' "), Faxue (Renda), No. 7 (1995), pp. 128-130.
68. "Minister on new maternal, infant health care law," Hong Kong AFP, 14 November
1994 in FBIS-CHI 94-219, 14 November 1994, p. 55.

co-ordinated legal and political approach to questions concerning rural

female infanticide which would draw together specific provisions of a more
complete set of laws on minors and women. The Chairman of the NPC
Law Committee, Xue Ju, discussed how the Committee had achieved a
strongerwording against the practice of female infanticide and the inappro-
priate use of technology in the illegal gender identificationof the foetus.69
All the above new laws attempted to balance social and legal protec-
tion on the basis of the Party's assumption of an idealized harmony of
state and society. One of the domestic arguments against the application
of "civil society" to China promotes a "rule of law" which not only
facilitates the market but also protects rights and interests on a social and
legal basis of equality. Moreover, the proponents of a civil law solution
to inequality have to contend with the advocates of state-sponsored social
activism who prefer to deploy the constitutional law to reinforce the
legally stated standards of social behaviour.
The issue of just how the law might be used to support gender equality
was raised in 1995 when the people's court of Xinjin county, Sichuan,
voided the "village regulations" of Shucai village for discrimination
against women who had marriednon-villagers. Writing in one of the most
widely recognized law journals, Zhongguo faxue, Yu Min defended the
court's decision as an application of the "theory of direct effect of the
constitution." The constitution's stipulation of gender equality was ap-
plied in contradistinction to civil law principles of "public order" and
"good customs." In Yu's view, the "theory of indirect effect of the
constitution," as applied in Japan and Taiwan, would give inappropriate
priority to the civil law's indirect handling of inequality. In short, a strong
activist state was needed to sustain social justice in the context of
economic development. Yu's argument for just state intervention through
the direct application of constitutional law drew on three related conclu-
sions: the reality is that China does not have a full market economy
requiring the "complete separation of political state and civil society"; in
the villages, ascriptive status is a palpable social reality which conflicts
with the abstract notion of natural person as defined in civil law; and a
current reliance on the constitution's provisions for equality was likely to
achieve a more effective result in light of the weaker legal foundation for
such cases in either the civil or administrative law.70
It is possible that both constitutional law and civil law might be
deployed together in the Chinese quest for social progress. This would in
fact support an approachbased upon a "complete legal system"; however,
Yu's opposition of "direct" and "indirect" effect suggests the inherent
difficulties of a legislative strategy which incorporates state-sponsored
social activism with the legal orientation of the marketplace. The latter
wants the state to shrink before society while the developmental concerns
69. "Standing Committee hears amendments to draft laws," Xinhua, 26 October 1994,
p. 33.
70. Yu Min, "Lunnannii pingdengde xianfa yuance zai 'minshi lingyu' neide zhijie xiaoli"
("On the direct effect of the constitutional principle of gender equality in the sphere of civil
affairs"), Zhongguo faxue, No. 6 (1995), p. 106.

of social justice strongly support the legislative role of the state in

providing for social stability and the fresh redistribution of interests.
Conclusion
In the current era of focus on market principles, competing domestic
and international perspectives push for the expansion and contraction of
the state within Chinese society. At this time, China does not have a fully
fledged "civil society." The Party has rejected this to focus on its own
idealized harmony of Chinese state and society. While legislation has
taken up the cause of rights and interests, it has done so without the
benefit of a jurisprudence which comprehensively clarifies the contem-
porary composition of Chinese society and the related legislative criteria
for the adjustment of rights to interests.
"Class" has become increasingly irrelevant to jurisprudence and legis-
lation. The conventional focus on obligation was always anchored in
class. Not even the fear of post-Tiananmen Square "counter-revolution"
was enough to resuscitate class in the 1990s' world of socio-economic
change. If rights and interests are now acting as an alternative format to
class, these are still in gestation. This article, therefore, attempts only a
preliminary identification and evaluation of rights and interests within
current correlations of politics, jurisprudence and legislation.
In a time of profound axiological crisis, the Party is struggling with an
extraordinarycontradiction. On the one hand, it wishes to maintain social
control, and, on the other, it is promoting the legal and social protection
of newly defined rights and interests. Despite this unresolved antithesis,
1990s' legislative strategy is fostering a new incipient jurisprudence.
Legislation regarding women and children might be characterized as part
of an evolving Chinese corporatist charter of rights. The legal system
which is still formally integral to the "comprehensive management of
public order" has been given a greater political priority, if not a limited
semi-autonomy as an instrument of social progress.
It would be easy simply to dismiss the new legislation on the rights and
interests of women and children as a frustrating exercise in formalism,
cultural relativism and specious human rights diplomacy. This legislation,
however, represents a new level of formal rights development which
originates in a changing conception of the Chinese state-society relation-
ship, and it provides the rationale for the distribution of state resources.
Moreover, despite a growing focus on efficiency in the economy, the new
vocabulary on rights and interests has acquired unprecedented political
priority with respect to women and children.
On one level, this suggests the critical underlying political strength of
the reform perspective on human rights. Even as the conceptualization of
the rights and interests of women and children in China has been defined
in Chinese socialist terms, formal legal thinking and legislation has been
profoundly affected by Western concepts and values. As the state halt-
ingly makes room for autonomous groups in the "socialist market econ-
omy," it also focuses on the need to shore up Chinese family values and
the legal position of women and children. In a time of regime decline, the

new generation of rights and interests legislation has been conceived

within a national debate on "human rights." This helps explain the
contradictory mix of legal and social protection underlying legislation.
The contradictions of contemporary society and politics are magnified
in China's 1990s' legislative strategy. While the punitive direction of
criminal law has been modified to deal with juvenile delinquency, the
state, in response to recognized problems of abuse, has moved directly
into areas of parental responsibility that were traditionally closed to legal
remedy. At the same time as the proponents of gender equality have
sought to strengthen the constitutional law's interventions into rural
society, there has been a renewed focus on civil procedure and the
familial dimensions of civil law as expressed in the entwining of the new
civil procedure law and the PRC Law on the Protection of Women's
Rights and Interests.
The 1990s strategy has highlighted the importance of a legal system
which systematically reinforces the wider cross-referencing of consti-
tutional, administrative, criminal, civil and economic laws dealing with
rights and interests protection across a spectrum of social activity. This
same strategy is also interesting as an incipient attempt to endow related
mass associations with a more explicitly legal persona and a formal set of
stipulated legal responsibilities. At the same time as the law is augment-
ing the role of the mass associations, these associations are meeting heavy
resistance in their claims to state budgetary support. They are deeply
involved in a uncertain budgetary politics even as they are called upon to
serve in the "system of social protection."
The state is being pulled in a number of directions. As it contracts its
sphere of public administration,it is expected to guarantee social control
and the "fresh readjustmentand distribution of interests," and is supposed
to provide a wider cross-referencing of laws within a "complete legal
system." With the "crisis of faith" and the market's challenge to the state,
the traditional synthesis of legal development with state-sponsored social
activism may become a lot less plausible as the legal system is called
upon to provide both comprehensive management of public order and the
fresh readjustment and distribution of interests.
As early as 1986 when the new General Principles of Civil Law were
first promulgated, legislators and law professors commented favourably
on how these principles constituted a victory for the cause of "subject
equality" over the historical tendencies of the arbitrarystate to ignore the
individual and the plurality of interests in society; however, at the same
time, there were reservations over the direct incorporationof the marriage
law into the departmentof civil law. Some reformers contended that this
would insinuate principles of commodity economy into family relations
and diminish the educational function of the marriage law.71
71. Shi Jichun, "Woguo minfa tongze yu waiguo chuantong minfa zongzede bijiao"
("Comparing [China's] General Principles of Civil Law with the traditional civil law princi-
ples of foreign countries"), Shehui kexue, No. 7 (1986), p. 24.

This dilemma over the materialistic denigration of family relations has

become more accentuated in the 1990s' "socialist market." The recent
debate over the prioritization of constitutional as distinct from civil law
remedies raises the difficult question as to what degree of a top-down
state approach to social activism is needed to protect rights and interests
in China's transitional circumstances. The dangers of an exclusive re-
liance on state-sponsored constitutional development were explicit in
Tong Zhiwei's theory of "socio-economic rights"; however, one could
still argue that a "rule of law" in China's developmental stage really
requires inspired state action.
Western scholarship used to indict Chinese Marxists for subordinating
gender transformationto class struggle.72However, if "class" is becoming
an increasingly moribund factor in the post-Deng era, some of China's
most senior Marxist law experts nevertheless are concerned over rising
social inequalities and are in the midst of a debate over the interpretation
of "efficiency is primary and fairness secondary."73
The Chinese state does not enjoy a good international reputation.
Western feminism, for example, is wary of governmental claims
regardinggender neutralpolicy and "state-sponsoredfeminism" and would
prefer to support domestic attempts "to take the power to
define women away from the state with its manufactured facade of
sexual equality."74Stanley Rosen recently raised the related question of
whether the rise of market principles and the retreat of the state
from society will adversely affect the pattern of women's participation
in political life. Shirin M. Rai's research on gender, employment
and education in China pointed to both the "gender blindness" of
Chinese economic reform and the modernizing state's refusal "to confront
the issue of 'public patriarchy'."75New humanrights legislation featuringthe
rights and interests of women and children might be dismissed as an
inconsequentialand cynical exercise in ideological formalism and cultural
relativism. However, such a position might serve only to guarantee a
significant loss of analytical opportunityand understandingregarding the
current parametersof political thought and organization and the changing
implications and legal consequences of the shift away from the class
paradigmin a period of unprecedentedsocio-economic change.
China's new "legislative strategy" raises the vexing but genuinely
important question of what the best practical socially and legally appro-
priate means are for protecting women's and children's rights in the
contemporary circumstances of China's transition to the "socialist
72. Stacey, Patriarchy and Social Revolution in China, p. 263.

73. For example see the review of 1994 Chinese jurisprudential debate in Editorial
Department,"YijiuwunianZhongguo faxue yanjiu huigu" ("Review on the studies of Chinese
law in 1994"), Faxue yanjiu, No. 1 (1995), pp. 3-40.
74. This is a paraphrasedreference to Elisabeth Croll's review of ChristinaGilmartin,Gail
Hershatter,Lisa Rofel and Tyrene White, Engendering China: Women,Cultureand the State.
See Elisabeth Croll's overview of recent literaturein book review, CQ, No. 141 (March 1995),
pp. 211-15.
75. Shirin M. Rai, "Gender, education and employment in post-Mao China: issues in
modernisation," China Report, Vol. 29, No. 1 (1993), p. 3.

market." How, for example, is the conceptual and institutional basis for
social justice and human rights improvement in China's transitional
context to be understood? Is "civil society" the only viable basis for
evaluation of the Chinese approach to legal and social protection?
Western influence has never been greater within Chinese society, but
recent legislation still features a particularly Chinese synthesis of legal
and social protection which reflects substantive change within political
cultural continuity.


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Legislating Women's and Children's "Rights and Interests" in the PRC

Author(s): Ronald C. Keith

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Rights and interests, quanyi, are superseding "class" as the conceptual

? The China Quarterly, 1997

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hand, much of the formal content of China's position on women's

Chinese Legislation in an International Context

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Ministry of Justice and the Women's Federation. The Working Com-

13. "An outline of Chinese women's development 1995-2000", in FBIS-CHI 95-154,

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The Changing Chinese Approach to Social and Legal Protection

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tation of the first PRC marriage law, this approach self-consciously

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"activism" which insists that the right to sexual equality "transcendsthe

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Rights and Interests in Jurisprudence and Legislation

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28. See Keith, "Post-Deng jurisprudence".

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in controversy over the legal definition and protection of private enter-

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consciousness and practice. Furthermore,social protection and activism

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women is still not wholly satisfactory."'37 Chinese politics is likely to

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corporatism and consultative authoritarianism.In China, itself, some civil

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Protecting Minors' Rights and Interests

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The formal subscription to such a principle is striking in that the

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The Lawful Protection of Women's Rights and Interests

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to the Convention on the Elimination of All Forms of Discrimination

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inequities originating in economic reform. The NPC Law Committee

The workof protectingwomen'srightsandinterestsinvolvesvarioussocialaspects,

While Article 3 introduced some qualified element of compromise,

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weakened the state's institutional ability to advance the cause of women' s

The issue of a legislated quota system within the state congressional

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co-ordinated legal and political approach to questions concerning rural

This content downloaded from 128.235.251.160 on Sat, 17 Jan 2015 09:13:03 AM

of social justice strongly support the legislative role of the state in

This content downloaded from 128.235.251.160 on Sat, 17 Jan 2015 09:13:03 AM

new generation of rights and interests legislation has been conceived

This content downloaded from 128.235.251.160 on Sat, 17 Jan 2015 09:13:03 AM

This dilemma over the materialistic denigration of family relations has

72. Stacey, Patriarchy and Social Revolution in China, p. 263.

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