Selective Adaptation and Institutional Capacity: Perspectives on Human Rights in China

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Human rights policies and practices in the People's Republic of China have repeatedly been criticized for falling short of international standards. Although China has signed the international covenant on civil and political rights, so far it has ratified only the international covenant on economic, social, and cultural rights, despite repeated urgings by the international community. China's performance even under the agreements to which it is bound remains a subject of frequent criticism.1 While China's compliance with international human rights standards seems highly problematic, its human rights record can be explained at least in part by reference to China's divergent interpretations of these standards based on factors of local legal culture. The paradigm of "selective adaptation" explains much about the ways in which international legal standards are interpreted and applied in light of local legal cultural norms in China.2 As well, China's compliance with its international human rights commitments may be understood by reference to factors of institutional performance. The paradigm of institutional capacity explains the ways that conditions of perspective, identity, and organization affect the performance of governance institutions. As an alternative to normative analysis of human rights violations, the cultural and structural dimensions of selective adaptation and institutional capacity explain much about China's human rights policies and practice.

LEGAL CULTURE AND SELECTIVE ADAPTATION

Legal culture analysis permits appreciation of the tensions between the globalized systems of liberal legal norms, from which many international human rights standards derive, and deeply embedded systems of local norms and values. China's legal reform project represents in significant part an effort to adapt selectively foreign models of law and governance drawn largely from the liberal tradition.3 This involves questions about the potential for normative community between Chinese legal culture and the foreign models China is seeking to apply to its development project. Proceeding from tenets about human equality and natural law, liberal political and legal norms stand generally for the proposition that government should be an agency of popular will.4 Such agency requires accountability, from political leaders through democratic elections and from administrative agencies acting within the limits of lawfully delegated authority. Responsible agency is thus a typology by which regulators and their political superiors are accountable to the subjects of regulation, and as a result are expected to exercise regulatory authority broadly in accordance with norms of transparency and the rule of law. Thus, the accountability of political and administrative agents may be described in terms of their responsibility to society. In contrast, norms of governance in China suggest a typology of patrimonial sovereignty, by which regulators are accountable primarily to their bureaucratic and political superiors, and as a result have few obligations to heed the subjects of rule in the process or substance of regulation. Under the dynamic of patrimonial sovereignty, political leaders and administrative agencies have responsibility for society but are not responsible to it. This helps to set an ideological context by which protection of individual human rights is relegated to secondary status, behind the primacy of the state.

Tensions between responsible agency and patrimonial sovereignty affect compliance with international human rights standards through the dynamic of selective adaptation, by which non-local institutional practices and organizational forms are mediated by local norms. While parties to international human rights treaties accept compliance obligations upon ratification, as a practical matter interpretation and application of specific international human rights standards will depend on a degree of commonality between the sodocultural norms underlying these standards and local norms. …