The Complexity of Governance in Modern China

  • The tension between ‘objective’ laws and ‘subjective’ action is an underlying historical characteristic of Chinese culture
  • Rules are regarded as intrinsically flexible in China, and are expected to adapt to context and situational need
  • Creatively outsmarting regulation is sometimes interpreted as an indicator of moral or social intelligence

Contemporary China exhibits a range of cultural tensions, not least in the push and pull between official policy and actual ideals and practice. The tension between law and ethics displays the complexity of modern understandings of morality, and the way the population steers between the two poles of law and personal judgement speaks to China’s new social landscapes.

Adaptable Marriages and getting things done

The Bureau of Civil Affairs in the Xuhui district of Shanghai has a small office for ‘divorce registration’. In August 2016, it became so packed that the office had to set a limit of 60 cases for each workday. Many annoyed couples needed to come back at a later date to queue up again. The daily quota for divorce quickly made national headlines.

The frenzied housing market in Shanghai offers an explanation for the spike in divorce. House prices skyrocketed by more than 60 percent from September 2015 to September 2016, with many areas of the city center seeing prices more than double. To control the bubble, the government limits each local family to owning two apartments in the city, meaning many couples are pursuing ‘fake divorces’ in order to buy more apartments for investment. When a couple divorces and put both apartments under one person’s name, the former spouse – now officially single and homeless – is then eligible to buy another apartment. After remarrying, the family now legally owns three. The third apartment’s mortgage rate is even improved because it’s (officially) the buyer’s only apartment. A couple can divorce again, and do the same thing over and over.

The payoff has proven to be worth the trouble. In the past decade, property prices have risen more than tenfold in the city, making buying property a get rich quick scheme. This is especially common in big cities such as Shanghai, Beijing, and Shenzhen, but the same thing is happening in provincial capitals and larger cities nationwide.

As outrageous as ‘fake divorce’ sounds, people do it openly without any guilt or shame. Being smart and flexible and playing around official rules and regulations is a familiar Chinese attitude and a common approach to getting things done.

From Legalism to Confucianism: inflexible laws or situational context

This mentality has a long history. Rule of law is widely considered a modern Western import, but the influential philosophy of Legalism – espousing governance by clear legal codes – was evident in ‘old China’. It was the state philosophy of the Qin Kingdom, in which anybody flouting the rules was punished strictly and heavily. The kingdom birthed the Qin dynasty, which conquered and united China under one Emperor for the first time. The empire was, however, short-lived (221 – 207BC) with Legalism identified as its downfall. Inflexible laws were deemed cruel and unfriendly. Over the following 2000 years, this school of thought lost its eminence to Confucianism, centred around social hierarchy and moral values. Those of high standing are given absolute power and expected to govern benevolently, while those lower in the hierarchy are required to obediently follow. This fosters morally appropriate behaviour and social harmony. As a result, power does not reside within laws, but rather within those who create and interpret them. Laws are seen as intrinsically flexible, and should adapt to context and situational need.

Despite these entrenched behaviours, modern China is seeing a lack of respect for laws and regulations—undoubtedly a result of the people not being actively involved in legislature. Policies such as the ‘two apartments per family limit’ used to regulate the housing market are viewed as whims of the government that often change based on market fluctuations but without a clear assessment of their efficacy. They have become another sign of governmental ineptitude and a laughing stock of the common people. Outsmarting these rules has become accepted behaviour, if not openly celebrated.

Outsmarting the System and moral righteousness

The points system in driver management also gives rise to a thriving market in which people trade points to avoid problems from traffic police. A driver is granted twelve points per year, which are reduced if they’re caught breaking traffic rules. For example, driving in the wrong lane costs two points, while crossing a red light incurs a penalty of six points. The cycle resets at the end of the year, and everyone’s points reset to twelve. If a driver loses more than twelve points in less than one year, their license is invalidated and the driver needs to retake their exams to get a new license, as well as pay for all expenses incurred. Traffic violations are most often caught on cameras so police can only trace them to the cars, meaning those who break rules can simply pay others to claim violations in their place. This practice is so common that one point has a market rate of around RMB 200. Though illicit, friends help each other out openly and deals are made online without much effort to hide their illegal nature.

Ordinary people are not the only ones searching for new ways to circumvent law and regulations. The government does the same. Every now and then there is a news story concerning the forceful tearing down of old houses to make way for new property development. Land sales are a critical source of income for local governments and they have been busily clearing up old blocks to sell to developers for rapidly rising prices. Officially, the government can only ask residents to leave after they are happy with their compensation and have signed the deals. In the case of disagreeable residents, there needs to be a court ruling in favour of the government. But rules are only rules, and sometimes local governments just use brute force to get the job done. As to violation of the law, that can be dealt with later.

These violations of the law needn’t be perpetrated with malicious intent. Most often, they are enacted with a sense of moral righteousness which, according to Confucian beliefs, sits above the rigidity of laws and rules. In the case of clearing up residents who refuse to move there is often some sympathy for the extreme measures of local governments. Some residents are simply demanding too much compensation. The residents are seen as immoral, as their greed hurts urban renovation and the interests of wider society by affecting development of public facilities, such as roads and parks. This morally legitimizes the breaking of law in order to do what ‘ought to be done’. This ‘ought’ is determined by what’s morally correct and appropriate, not what’s dictated by the law.

‘Fake divorces’ and the market for driver points are seen as behaviours which benefit the people involved without affecting others, at least not directly, and so aren’t matters for the conscience. Anyone reporting these actions would be laughed at for lacking sophistication and an appreciation of situational complexity.

Western Objectivity vs Chinese Subjectivity: furthering progress

On the one hand, there are calls for the ‘Western-style’ rule of law grounded on a lack of faith in subjective moral judgements; leaving too much to open interpretation can only lead to lawless chaos. On the other hand, there is the Confucian perspective focusing on the complexity of human conditions, considering it naïve to believe rules can determine what’s right and wrong. After all, the outcome and the result are more important than procedural correctness and the formality of laws. As a simple example, if obeying laws were taken as sacred and religiously followed, China would never be able to build its fast national train network in such a short time. Getting all people to agree to move would take years, if it could be accomplished at all.

Playing around rules can of course backfire. A few cases have been reported in which crooked husbands and wives used a ‘fake divorce’ as a double bluff to take the family wealth and dump their spouse. This is exactly what happened to Mrs. Chen of Guiyang in 2015. Her husband, Mr. Li, took most of the family wealth and refused to remarry, and the court has yet to reach a ruling on their case.

Perhaps it is caught in a familiar conundrum – whether to support the ethically appropriate wife, or the law-abiding husband.

 

—Zhao Mo, Cultural Analyst