There is a pretty vibrant conversation going on internationally and in China about the role that individual rights should play in Chinese society. (There was an interesting conference on this subject at the University of Michigan early in February.) Some theorists object to the idea of formulating China's issues of state-society relations in terms of individual rights. They object that the theory of individual rights is an expression of liberal or neo-liberal morality, and that this theory doesn't give enough expression for the value of the society as a whole.
Other social scientists document the fact that there are a variety of increasingly visible groups in China who are formulating their claims in terms of rights: peasants in terms of their rights of land use, workers in terms of their labor rights, urban homeowners in terms of incursions against their homes by land developers, and city dwellers in terms of their rights against environmental harms. In each case the groups consist of people who have a deep and shared interest in something -- access to land, working conditions that are safe and compensated, immunity from environmental toxins, security of their homes; these interests are threatened by powerful interests in Chinese society; and people in these groups want to have the freedom to struggle for their rights, and they want the state to have a system of law that protects them against violence when they do so. (Kevin O'Brien documents some of these social movements in Rightful Resistance in Rural China.)
So what is involved in advocating for "legality" and "individual rights" for China's future? Most basically, rights have to do with protection against repression and violence. The core rights that Western political theorists such as John Stuart Mill, Immanuel Kant, or John Locke articulate are rights like these: freedom of association, freedom of action, freedom of expression, freedom of thought, and the right to security of property. Karl Marx criticized these rights as "bourgeois rights", and some post-modern theorists today denigrate these rights as a vestige of liberalism.
But I want to assert that these rights are actually fundamental to a decent society -- and that this is true for China's future as well. Moreover, I want to assert that each of these rights is a reply to the threat of violence and coercion. Take the rights of expression and association: when a group of people share an interest -- let's say, an interest in struggling against a company that is dumping toxic chemicals into a nearby river -- they can only actualize their collective interests if they are able to express their views and to call upon others to come together in voluntary associations to work against this environmental behavior. The situation in China today is harshly contrary to this ideal: citizens have to be extremely cautious about public expression of protest, and they are vulnerable to violent attack if they organize to pressure companies or local government to change their behavior.
The use of private security companies on behalf companies, land developers, and other powerful interests in China is well documented -- as it was in the labor struggles of major industries in the United States from the 1880s to the 1930s. And these companies are pretty much unconstrained by legal institutions in their use of violence and gangs of thugs to intimidate and attack farmers, workers, or city dwellers. It's worth visiting some of the web sites that document some of this violence -- for example, this report about thugs attacking homeowners in Chaoyang. Similar reports can be unearthed in the context of rural conflicts over land development and conflicts between factory owners and migrant workers.
So this brings us to "legality." What is the most important feature of the rule of law? It is to preserve the simple, fundamental rights of citizens: rights of personal security, rights of property, rights of expression. Why, in the photos included in the web site above involving an organized attack by security thugs against innocent Chaoyang residents -- why are there no police in the scene making arrests of these thugs? And what does it say to other people with grievances? What it says is simple -- the state will tolerate the use of force against you by powerful agents in society. And what this expresses is repression.
It is also true that the state itself is often the author of repression against its own citizens for actions that would be entirely legitimate within almost any definition of core individual right: blogging, speaking, attempting to organize migrant poor people. When the state uses its power to arrest and imprison people who speak, write, and organize -- it is profoundly contradicting the core rights that every citizen needs to have.
It should also be said that these legal rights cannot be separated from the idea of democracy. Democracy most fundamentally requires that people be able to advocate for the social policies that they prefer. Social outcomes should be the result of a process that permits all citizens to organize and express their interests and preferences -- that is the basic axiom of democracy. What this democratic value makes impossible is the idea that the state has a superior game plan -- one that cannot brook interference by the citizens -- and that it is legitimate for the state to repress and intimidate the citizens in their efforts to influence the state's choices. A legally, constitutionally entrenched set of individual civil and political rights takes the final authority of deciding the future direction of society out of the hands of the state.
Give Chinese people democratic rights and they can make some real progress on China's social ills -- unsafe working conditions, abuse of peasants, confiscation of homeowners' property, the creation of new environmental disasters. Deprive them of democratic rights, and the power of the state and powerful private interests can create continuing social horrors -- famine, permanent exploitation of workers, environmental catastrophes, development projects that displace millions of people, and so on. The authoritarian state and the the thugocracy of powerful private interests combine to repress the people.
So let's not fall for the post-modern jargon, the equation of liberal democratic values with neo-conservative politics or worse, and let's advocate strongly for a Chinese society that incorporates strong legal protections for individual rights and liberties.