Does a Half-Full Glass Justify a Leap of Faith?

Abstract

Debates concerning human rights and China typically revolve around a number of themes: the role of culture in identifying human rights and in implementing human rights schemes; the nature of the Chinese regime; and the impact of economic and legal reforms associated with China's institutionalization of a market society. The latter theme is intertwined with China's participation in and interaction with international society. Typically the first two themes are associated with obstacles to instituting a liberal human rights regime along familiar western lines, while the latter is seen as enabling. In assessing the relative contribution of factors to the evolution of human rights in China we must bear in mind, however, that these factors are not immediately commensurable. Chinese society is not held within a kind of force field while traditional culture, the communist regime, and market economics simultaneously exert some kind of electromagnetic pull and with the outcome determined by the relative power of one or the other factors. Nor is it accurate to portray state and society arrayed uniformly against one another with social forces pulling naturally in the direction of human rights and the state offering resistance. The roles of both state and society are complex. Some social forces gesture away from human rights-notably the impact of socioeconomic disparity, and some aspects of the state-such as legal reforms, pull towards it. An example of this kind of complexity arose when I was interviewing in Geneva, where interview subjects who work with the office of the UN high commissioner for human rights stressed how cooperative the Chinese government was in contrast with other notable human rights abusers.1A FRAMEWORK FOR ANALYSISTo get beyond a sterile debate over whether the Chinese glass of human rights is half empty or half full we need a framework for analysis. Every year there are a number of organizations, from the US State Department to Human Rights Watch or Amnesty International who attempt to quantify or evaluate whether the human rights situation in China is getting better or getting worse. But it really depends on whose rights, and what kind of rights one is speaking about. Absent a real understanding of the political dynamics involved, we are left with a checklist based on established human rights instruments and an accumulation of cases that either demonstrate China's compliance or Chinese violation of these norms. My concern is that this does not tell us very much about the way in which human rights norms are institutionalized within China's political-legal system.The fundamental problem of human rights in the Chinese context derives from a misperception and conflicting visions about what rights claims are. Liberal theory is quite straightforward. From the Magna Carta forward, rights claims have been seen as claims against the state. Human rights have been historically associated with social contract theory that sees certain human liberties as pre-existing the state, and that must be protected from the encroachment of state power. While human rights discourse is no longer associated exclusively with social contract theory and the discourse of human beings in the state of nature, the idea that state power is in some tension with human liberty continues to inform all notions of human rights regardless of whether these rights are seen as negative or and regardless of whether the state has a positive obligation to protect or a simply a duty to refrain from infringing by legislative or administrative action.Much of the vitriol in the rhetoric of the human rights argument between China and western countries comes from confusion over the relationship between human rights and humane values. There is little to distinguish between western notions and traditional Chinese-and particularly Confucian-notions of humane governance.2 Chinese, like westerners, see the enhancement and flourishing of human life, and the promotion of human enterprise and industry within a harmonious society, free from capricious intervention, as the aim of good government. …