Legitimacy

Legitimacy dimensions of Selective Adaptation may be appreciated in light of tensions around property rights and the right to development. As a signatory of and advocate for the 1993 Bangkok Declaration on Human Rights,109 China places strong emphasis on the right to development over requirements of civil and political rights. In its 1991 Human Rights white paper, the PRC explicitly adopted a position supporting the primacy of economic growth by stressing the right to subsistence as the primary right from which all other rights derive.110 In explaining the 1991 white paper, the Director of the State Council Information Office stressed the primacy of the state’s management of economic conditions as the basis for development: “[W]e enable our people to have the economic foundation upon which they can enjoy political rights.”111 The 1995 and 1997 Human Rights white papers underscored the regime’s commitment to the primacy of the right to development.112 Achievements in satisfying human rights to subsistence and development were given prominence yet again in the 2000 Human Rights white paper, subordinating civil and political rights.113 The 2004 Human Rights white paper formally integrated themes of subsistence and development, drawing on the international discourse of the right to development to complement China’s ongoing emphasis on the right to subsistence.114 These perspectives are reiterated in the 2008 white paper on the rule of law that affirms the centrality of Party leadership and asserts China’s “basic stand” on human rights as “placing top priority on people’s rights to subsistence and development.”115

The continued emphasis on the people’s right to development has contributed to growing popular rights consciousness, particularly in areas of property rights. Public demonstrations over a range of concerns have continued to expand in recent years, such that the Public Security Bureau reported 87,000 public order disturbances in 2005, up from 74,000 in 2005, and 58,000 in 2003.116 Many of these concern disputes of rural land use policies.117 As well, urban and rural residents alike have gradually begun to use legal mechanisms to achieve redress. By the early 2000s, expanded public participation in the legal process is widely evident.118 Villagers seeking compensation for expropriation of their land in favor of public and private development and neighborhood residents in urban areas seeking redress for allegedly unlawful relocation and expropriation of housing and other areas suggest the growing awareness of property rights among the populace.119

The growing trend of public citizens using the law to enforce their rights against government abuse and against abuse by privileged citizens suggests a new and dramatic phase in China’s legal development. This poses a significant dilemma for the governing regime, which has, to a large extent, based its legitimacy on a commitment to the rule of law. If the legitimacy of the regime comes to be compromised to the extent that it fails to deliver on commitments regarding the rule of law,120 an entirely new calculus of political authority may emerge. Although the Party staffing and discipline systems are powerful mechanisms for ensuring compliance by judges and lawyers, the regime’s ability to control outcomes is weakened to the extent that the law becomes part of the public domain. The newly enacted revisions to the Lawyer’s Law reveal the extent of concern by the government—as new and more stringent requirements are imposed on lawyers upholding the interests of the state in the face of popular rights claims.121

To the extent that the state is implicated in denying people access to redress for infringements of property rights that the state has publicly affirmed, legitimacy for the property rights regime is diminished. The Chinese government’s support for the right to development invites popular criticism when the benefits of such rights are not delivered. To the extent that both property rights and the socioeconomic benefits attached to them are not forthcoming to wide segments of the populace, the resulting legitimacy deficit not only affects government’s authority to rule but the capacity of the property rights regime to modify property relations behavior effectively is undermined. The challenge of legitimacy, combined with the challenges of perception and complementarity already discussed, raises important questions about the sustainability and effectiveness of China’s emerging property rights regimes.

 
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