Social change leaves China struggling to define role of law
By Stanley Lubman, The Wall Street Journal
As of March 1, dog owners in the southern Chinese city of Shenzhen who disobey a new law mandating the use of “pet restrooms” are subject to an $80 fine. According to another new regulation approved in Beijing late last year, children are required to visit elderly parents “often.”
These and other recent legal developments – including a pair of domestic violence cases with wildly different outcomes – illustrate how unprecedented social changes in China are provoking new questions about the role of law in society, and creating problems for law-makers, citizens and courts alike.
The new law governing dog-owner conduct in southern China is part of the “Civilized Behavior Promotion Law” that will go into effect next week. The law lists 10 public behaviors for which violators can be fined, according to a report on an English-language state-run news portal, including “spitting in public, smoking in a non-smoking place, failing to clean up pets’ excrement in public, damaging public sanitation facilities and more.”
Fines are to be based on “related laws and regulations,” and violators can apply for community service to offset up to half of their fees. According to the coverage, a previous draft provided for a range of fines, but they were removed after they “triggered controversy.” While local residents were said to “largely support” the law, “many people have questioned whether it can be effectively enforced.”
The Shenzhen government is evidently serious about enforcing the new law, at least the provisions affecting dog-owners. Yes, dog owners must use the “pet restrooms” — open-air enclosures filled with sand, as many as 1,000 of which will be built next to parks and along sidewalks. Residents who don’t use the “restrooms” and don’t pick up their dogs’ excrement could be fined the equivalent of $80.
A more serious change in social patterns that has spurred legal action and considerable public debate concerns the obligations of children to care for aged parents. In December 2012 the Standing Committee of the National People’s Congress approved an amendment to the Law on Rights and Interests of the Elderly, originally enacted in 1996, to provide that children should visit their elderly parents “often.” It states that when grown children live “apart from their parents, they should frequently visit and pay respects.” But how often is “often?” What does “frequently” mean? What is the penalty for failing to comply? Will parents report their offspring?
The vagueness of the amendment has understandably stirred debate in a society where rapid social change is challenging traditional expectations of filial duties toward aging parents. The Chinese media frequently report mistreatment and desertion of the elderly. One user of Sina Corp.’s Twitter-like Weibo microblogging service wrote that the amendment strengthened a “weakened” tradition, while another complained, “Nowadays, everything needs to be regulated.”
Half of the elderly living in urban areas do not live with their children, while in rural areas almost 40% do not, the South China Morning Post reported in January, citing China’s official Xinhua news agency. A professor interviewed for the same article said that “more and more” parents among the 200 million in China are being abandoned by their children.
It will take more than legislating the values of adult children to provide adequately for China’s elderly. China lacks a centralized social security agency, local governments “borrow” illegally from mandatory retirement accounts, and local government and state-owned enterprises illegally place pension-fund assets in risky investments. The new amendment appears to be a wistful exhortation rather than a rule to stimulate meaningful change.
Litigation sometimes reflects pressures to meet social change, as shown by two recent cases involving violence against women that challenges a long-standing acceptance of domestic abuse. In one case, Kim Lee, the American wife of a well-known Chinese English teacher, was granted a divorce by a Chinese court on the grounds of domestic violence. The court also issued a three-month restraining order against the husband that was described in Chinese media as “unprecedented.” Ms. Lee brought the case to court despite police attempts to discourage her. As one commentary published on the website of The Atlantic noted, “[F]or many in China, especially in rural areas, physical violence in the home is an accepted part of a marital relationship.” Ms. Lee posted photos of her injuries on the Internet and succeeded in her divorce suit. The case provoked a nation-wide debate about domestic violence. By the time it was decided, it had generated more than three million comments on Sina Weibo.
Another example of social problems intersecting with law is the even more serious case of Li Yan, a woman in southwestern China’s Sichuan province who killed her husband after suffering years of abuse and violence. Despite a large amount of evidence documenting her ordeals, the court ruled that she had not adequately proven domestic violence and sentenced her to death. The case has gone to the Supreme People’s Court, which has not yet ruled on whether her execution should be carried out.
All of the cases discussed here are examples of shifts in social values that demonstrate the complex interactions between law and social change. The Shenzhen law suggests limits on the influence of legal rules on citizens’ behavior. The new legal provisions imposing a duty, however vague, on adult children to care for their elderly parents illustrate a legislative intent to influence intergenerational attitudes whose traditional content have been eroded by economic change. And the issue of domestic violence reflects social pressures for new laws to protect wives from violent husbands, while also raising doubt about the extent to which such laws would actually protect them.
The two cases of domestic violence brought by abused wives show that court cases can stimulate wide debate between deep-seated tenacious pre-modern values and new debates generated by changing views of women’s roles and rights.
These examples only hint at possible future developments. The power of social media will affect litigation outcomes, and so might any meaningful increase in the independence of the courts. Pressures from society for change could affect the party-state’s current dominance over both the content of legislation and the work of the courts. Such tensions might have seemed beyond the reach of judges and law-makers not long ago, but Chinese society is racing headlong into a new era and grasping for new rules as it goes.2/27/2013