Corps de l’article

As the call for papers for this Special Issue suggests, rarely do the discourses of law and art intersect, as the cold, arid nature of the law stands in clear contrast to the fantasy and imagination of the arts. This is certainly true in the case of China where, in contrast to the emerging discourses of law and literature[1], the interplay between law and art is seldom explored. Nonetheless, an examination of art and law in China invites reflection on tensions between law’s role as an instrument of control and the resistance that art suggests through interrogation of the legal system of the People’s Republic of China (PRC). From the perspective of Weberian legal sociology[2], law in China serves as a mode of domination, determining the extent of individual and community claims to ownership and conservation of art. By delineating the terms and processes for ownership and conservation, China’s legal regime formalizes the scope and boundaries — the very identity — of the art being protected. Law’s domination is also evident in its function to restrict artistic expression, and to punish artists with whose expression the ruling regime disagrees. Juxtaposed to law’s formal domination is the critical role art plays in inviting resistance through interrogation of the doctrines and operations of China’s legal system.

1 Law and Protection of Ownership and Conservation

Law in China plays an obvious role in controlling ownership and conservation of art. Ownership of artistic creation is generally subject to protection under copyright law (referred to in China as “Authorship Rights Law”)[3]. Authorship rights extend to artists and authors, as well as translators and compilers of artistic work. The scope of coverage includes visual art as well artistic expression in computer software. The duration of protection is generally for the life of the author plus fifty years. China’s use of the civil law model of authorship rights has particular importance for artists, as the author/creator generally retains “moral rights” over the use of artistic works even after they are sold or licensed to others. Moral rights include the right to claim authorship, to object to alteration of the work, and to protect the integrity of the work, which are “unlimited in time”, thus remaining with the author after licensing or sale of the work itself[4].

Foreign works are protected in China under provisions of the Berne Copyright Convention[5]. Enforcement is subject to the administrative processes of the National Copyright Administration and also may be pursued through litigation in the People’s Courts. Copyright protection is extended through the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights[6] (TRIPs Agreement), which incorporates provisions of the Berne Copyright Convention and the Paris Industrial Property Convention[7]. TRIPs Part III requires member states to ensure that enforcement procedures are available to permit effective action against infringement of intellectual property rights through civil and administrative procedures and remedies, injunctions, and the imposition of compensatory remedies. China has revised existing legislation and regulations to comply with the TRIPs Agreement, and also enacted new measures for the protection of patents, trademarks, copyrights and trade secrets[8]. As well, institutions have been established at, and in some cases below, the provincial level for local enforcement of intellectual property rights and for resolving IPR disputes[9].

With a few notable exceptions[10], however, enforcement of intellectual property rights in China generally remains problematic. While most attention has been directed to piracy of commercial property such as computer software[11], and “applied art” such as designer clothing[12], China’s intellectual property protection challenges extend to fine art as well. Unauthorized reproductions of work by such renowned painters as Wu Guanzhong and Zhang Daqian have resulted in litigation and widespread media attention[13].

Adapting international standards for intellectual property protection raises questions about the relationship of individual ownership to community interests in artistic expression. Chinese tradition has been seen as diminishing individual ownership of artistic expression, for a variety of reasons including the discourse of Imperial hegemony that presumed ownership over all in the realm, as well as the communitarian discourse of family and collective interests in the intellectual and artistic achievements of individuals[14]. Questions arise as to how this tradition responds to emerging discourses of individual ownership of art in tension with social and community interests[15]. Individual ownership of artistic expression in public art such as murals or sculpture — particularly ones expressing public concerns such as environmental protection or corruption[16], for example — may privilege the interests of the artist or the owner of the venue where the work is displayed over community interests. Individual ownership of art also raises questions about private collections that diminish public access to art[17].

China has also used law to protect public interests in art through efforts at securing China’s artistic heritage. China’s rich legacy of art and artefacts has long attracted the interest of collectors. In recent years, resurgent nationalism among wealthy Chinese living abroad has resulted in a movement to acquire artefacts on the international market and repatriate them to China. Chinese state companies and newly wealthy individuals have become particularly active in buying up Chinese antiquities in international art markets[18]. The case of the Yuan Ming Yuan zodiac animals, which had been looted from Beijing at the turn of the 20th century by invading European armies, exemplifies this trend and its ripple effects in society and politics[19].

China has used legal measures to preserve art and antiquities in the face of ever-intensifying market demand. China’s Antiquities Bureau (Wenwu Ju / 文物局) has authority to confirm the antiquity of old paintings, porcelain, and furniture and to issue approvals for export licenses for those antiques allowed out of China (generally post-Qianlong / 乾隆)[20]. The Provisional Regulations on Art Import and Export Administration (“Art I/E Regulations”) issued by the PRC Ministry of Culture and the PRC Customs Administration aim to protect public interests in art and antiquities by controlling commercial trading[21]. Under these measures, control over art imports and exports is exercised through the international trade licensing system administered by the Ministry of Commerce (Art I/E Regulations, Art. 3)[22].

Thus, law in China plays an important role in protecting individual and collective interests in artistic expression. Whether through protection of artists’ rights in intellectual property or through law and regulations conserving art and antiquities, the PRC government has used law to uphold individual and collective property interests in Chinese art and to husband China’s artistic legacy.

2 Law and Control of Expression

Legal regulation of art is also about censorship and control of expression[23]. Art in China has long been viewed as more than the pursuit of beauty, but also serves as commentary on political, social, and economic issues. Among early examples are the bamboo and landscape paintings of the Yuan Dynasty that conveyed a sense of whimsical alienation from the affairs of formal society — implicitly a critique of Mongol rule[24]. During the revolutionary period prior to 1949, the Communist insurgency encouraged painters like Shi Lu (石鲁) to enliven popular resistance to Japanese imperialism and against China’s Guomingdang rulers through woodcut prints and wall posters[25].

Mindful of art’s importance as political commentary, the ruling Communist Party of China (CPC) and the PRC government have adopted laws and policies to control artistic expression. Restrictions on freedom of expression (artistic and otherwise) are grounded in the ideology of the regime. Mao Zedong’s famous lectures at the Yan’an Forum on Literature and Art in 1942 have stood for decades as the orthodox ideal that art should serve the interests of the Party/state[26]. In the period of post-Mao reforms beginning in 1978, the regime gradually became less interested in ensuring that art serves the Party/state, and more interested in simple censorship. During the Spring of 1989, when student democracy demonstrations held the world in thrall, a major art exhibition at the National Art Museum expressed the idea of “no turning back” to the days of state-controlled art[27]. The regime quickly determined that the art being exhibited was too critical of Party/state orthodoxy and shut the exhibition down. The creation of the “Goddess of Democracy” by students at the Beijing Art Academy in May 1989 further convinced the Party/state of the dangers of unrestricted artistic expression[28].

Crackdowns on artistic criticism of PRC domestic policies and politics have been exemplified more recently in the regime’s attacks on the work of painter Ai Weiwei[29]. In November 2015, an art exhibit on violence against women was closed for its implicit critique of government inaction — a step that was linked in the minds of many with the arrest of five feminist activists in March 2015[30]. In each of these examples, repression for political and ideological purposes was justified by reference to law — whether the question of conformity with proper permits in the case of the 1989 “no turn back” exhibit and the Goddess of Democracy ; tax enforcement in the case of Ai Weiwei ; or the new catch-all provision of the PRC Criminal Law Article 293 on “picking quarrels and provoking trouble” in the recent case of feminist dissidents in Beijing.

China’s legal regime has been used consistently to restrict artistic expression that challenges the hegemony of the Party/state[31]. Provisions of the PRC Constitution on freedom of expression (Art. 35) remain constrained by the provisions of Article 51 : “Citizens of the People’s Republic of China, in exercising their freedoms and rights, may not infringe upon the interests of the State, of society or of the collective, or upon the lawful freedoms and rights of other citizens[32].”

The conditionality of freedom of expression has a direct impact on artistic and literary work. Thus the PRC Regulations on Administration of Publishing provide in Article 5 :

When citizens exercise their right to freedom of publication they shall abide by the Constitution and laws, shall not oppose the basic principles confirmed in the Constitution, and shall not harm the interests of the country, the society or the collective or the legal freedoms and rights of other citizens[33].

Among the principles confirmed in the Constitution are the so-called Four Cardinal Principles first articulated by Deng Xiaoping in 1979, which include (i) upholding socialism ; (ii) upholding the people’s democratic dictatorship ; (iii) upholding the leadership of the CPC ; and (iv) upholding “Marxism-Leninism Mao Zedong thought[34]”. As entrenched in the Constitution — and by extension the laws of the PRC — the Four Cardinal Principles effectively prohibit artistic expression criticizing the Party/state.

The Art I/E Regulations discussed earlier exemplify efforts by the state to control artistic commentary[35]. The regulations’ prohibitions against various art imports and exports also reflect political and ideological priorities of the ruling regime in controlling artistic expression. Thus, the prohibition against items that violate basic provisions of the PRC constitution (Art I/E Regulations, Art. 5.1) permits suppression of artwork challenging the leadership of the CPC[36]. The prohibition against works that harm national unity, sovereignty, and territorial integrity (Art I/E Regulations, Art. 5.2) permits control over items that express dissident views on contested regions like Tibet and Taiwan[37]. The prohibition against works disclosing state secrets, threatening national security, or harming the honour (rongyu/ 荣誉) or interests of the state (Art I/E Regulations, Art. 5.3) imposes controls over art that challenges any aspect of Party/state orthodoxy[38]. Similar restrictions on works that undermine the unity of nationalities (Art I/E Regulations, Art. 5.4) permit controls against art that challenges official policies on nationality minorities[39]. Prohibitions against import and export of works that promote heretical sects and mysticism (Art I/E Regulations, Art. 5.5) are directed against religious art involving Falun Gong (法轮功) or other dissident religious groups[40]. The prohibition against art that may contribute to social unrest or disorder (Art I/E Regulations, Art. 5.6) allows controls over art that examines delicate issues like the Tiananmen demonstrations of 1989 and the dissident manifesto Charter 08, or issues of contemporary labour unrest[41]. The prohibition against art that wilfully misrepresents (cuangai / 篡改) or seriously distorts (waiqu / 歪曲) history (Art I/E Regulations, Art. 5.9) works to entrench the official historical interpretations of the Party/state (which often run counter to the historical record)[42]. Thus, the regulation of art exports is not simply about preserving China’s artistic heritage, but about censorship and control of the expression of ideas by Chinese artists[43].

Ideological control over artistic expression is also evident in the recently issued “Opinion on Steadily Deepening Overall Law Enforcement Reform in the Culture Market” issued jointly by the CPC Central Committee General Office and the State Council General Office[44]. Issued as a matter of authoritative administrative guidance directing behaviour of government officials, the Opinion serves to set priorities and goals within the broader context of legal regulation. Thus the Opinion notes the importance of formal regulatory oversight in such areas as intellectual property and unfair competition, but also emphasizes the importance of core ideological values of socialism and the protection of the interests of society. These goals in turn are to be interpreted and enforced through the leadership of the CPC. Here again, questions of artistic expression remain subject to the political imperatives of the ruling Party/state.

3 Art’s Resistance : Interrogating the PRC Legal System

Despite the dynamics of legal control over identity and content, art in China is not a passive object mutely accepting such domination. Rather, art serves as a source of insight and understanding about Chinese law that interrogates its very legitimacy and authority. Chinese art forms such as calligraphy, folk arts, porcelain and painting offer perspectives that invite critical engagement with China’s socialist legal system.

3.1 Viewing Chinese Law Through the Art of Calligraphy

The ancient Chinese art of calligraphy combines form and content in ways that enable the artist to express her innermost thoughts and ideals[45]. Both law and calligraphy involve the use of words to express ideas, the calligrapher for example detailing the word for dragon (long ; 龙 ／龍) to express variations on themes of authority and power just as the jurist uses terms like “rights” to depict variations in socio-economic and political relationships. Expressing a model of cultivated virtue, the calligrapher deploys brush stroke and composition to depict familiar Chinese language pictograms in ways that convey deeper meaning. Calligraphy also represents the varied impacts of the past, inviting observers to consider contemporary issues in light of the written adaptation of traditional characters and modes of writing them[46].

This interplay of history, form and content is useful in understanding the contemporary Chinese legal system[47]. The socialist legal system of the PRC emerged from the post-Mao reforms launched at the 3d Plenum of the 11th CPC Central Committee in November-December 1978. What began as a tentative legal reform program to re-establish government authority following the chaos of the Cultural Revolution (1966-1976) has developed into the complex array of legal forms and organizations that comprise PRC law today. A key element of law in contemporary China involves the effects of historical precedent. Just as calligraphy is expressed through learned discourse, practice, and pedagogy containing the model expressions of calligraphers going back centuries or more, so too is law expressed and understood by examining the past, whether through learned discourse, documented practice, and formal expressions of orthodoxy (official dictionaries and teaching texts).

Thus, the early post-Mao legal reformers were directed to learn from history. PRC criminal law is influenced by principles drawn from the Qing Dynasty Law Code (Daqing Lüli / 大清律例) on the imposition of criminal penalties for private conduct[48]. PRC scholars of contract and property law have been influenced by Republic of China civil law principles established initially after 1911 on the Mainland and later in Taiwan[49]. Much of contemporary PRC law remains governed by the historical and ideological legacies of the Chinese Communist Party on issues such as class struggle and state-led development[50]. Like the modern calligrapher who examines historical precedent in devising contemporary expression, legal scholars in China today look to earlier legal precedents to analyze contemporary legal questions.

The role of form and substance in Chinese calligraphy is also instructive. Just as the artistic sensibilities of calligraphy prize the written forms of words as much or more than their functional meaning[51], China’s legal regime often elevates form over performance in legal relations[52]. Thus the form of Chinese laws and regulations is often deemed the equivalent of their operation in practice. Formalism also conflates policy ideals with the interpretation and enforcement of law, such that China’s legal institutions function largely according to policy priorities imposed upon them by the Party/state. Chinese legal formalism, the elevating of form over function, often results in important gaps between laws and regulations on the books and those in action. Whether in the area of constitutional rights, economic regulation in matters such as contracts and property, or social development issues of labor relations and environmental protection, the realities of legal performance often differ substantially from the content of laws and regulations.

Chinese law also shares with calligraphy a reverence for the materials of expression. Like the calligraphy studio that involves material accouterments (including brushes and brush washers, ink stones and wells, paper and paper holders) and makes accommodation to modernity through the use of fountain pens and electronic tablets[53], the courtrooms and the legislative chambers of China accommodate technological change through the computerization of judicial and legislative proceedings. The effects of changing materials of expression in both law and calligraphy remain to be seen, but the parallel dynamics of history, form and content will likely remain. And while the calligrapher may be content with the artistic outcome of expression, the jurist must be mindful that the outcome of her expression affects the community in which she lives. The future of China’s legal system depends on whether those involved in the drafting, enactment, interpretation and implementation of law in the PRC will be able to draw upon the changing dynamics of legal form and apparatus to express ideals and practices of law which transcend limitations of Party/State rule to build a legal system that genuinely and effectively responds to the needs and aspirations of China’s people.

3.2 Understanding Party Control Through the Craft of Bird Keeping

Bird keeping is a folk practice deeply embedded in the culture of northern China[54]. Bird keepers in Beijing can be seen every morning carrying their charges through local parks in artfully wrought bamboo and wooden cages often adorned with precious porcelain feeding dishes and water reservoirs — themselves modeled on the brush washers (bixi : 笔洗) familiar to calligraphers. Renowned China law scholar Stanley Lubman alluded to this practice in his comparison of China’s legal reforms to a bird in a cage[55]. Drawing on a metaphor associated with economic planner Chen Yun about the limited freedom of market activity within the confines of China’s socialist system, Lubman portrayed the systemic and ideological limitations of Communist Party rule as a cage confining the bird of Chinese legal reform.

China’s socialist legal system has long been a product of CPC policy preferences. The “Four Cardinal Principles” entrenched in the PRC Constitution underscore the monopoly of Party leadership over governance activities and institutions — inviting analysis of the limited scope for activities and discourses (including human rights) that are not endorsed by the Party. Party control extends to the socialist legal system, gradually adjusting the doctrine of class struggle to meet the need to maintain stability and protect the Party/state. While Mao’s critique of formal law and regulation was grounded in ideas about continued class struggle and the need for permanent revolution[56], the determination by the 3d Plenum of the 11th CPC Central Committee in November-December 1978 that class struggle had been largely resolved indicated a tentative step away from Maoist doctrine and laid the foundation for legal and economic reform[57]. At the 13th National Party Congress in 1987, General Secretary Zhao Ziyang asserted that China was in the preliminary stage of socialism, suggesting that class struggle had declined yet further, raising the prospect for greater autonomy and authority for the legal system, particularly in civil and economic affairs[58].

Nonetheless, the imperative of Party leadership has remained dominant. Following the disastrous Tiananmen massacre in 1989, Deng Xiaoping’s 1992 Southern Tour (nanxun) supported “deepening reform”, which combined market reforms in the economy with resistance to political reform under the guise of maintaining stability[59]. This orthodoxy continued under Deng Xiaoping’s successors Jiang Zemin and Hu Jintao[60]. Despite increased professionalism and autonomy among judicial personnel and institutions, Party-led adjudication committees (shenpan weiyuanhui / 审判委员会) in the People’s Courts ensure CPC leadership over judicial appointments and decisionsĐ. Under Xi Jinping, the assertion of Party leadership over the legal system has included a renewed emphasis on maintaining stability as a prerequisite for economic development[61]. The 4th Plenum of the 18th Central Committee in October 2014 emphasized that the socialist legal system would remain bound by the Constitution and thus by the principle of Party leadership[62]. Thus, subordination of law and legal institutions to Party leadership is not simply an abstract ideological principle, but rather is thoroughly entrenched in the organization and operation of the PRC Party/state. This has significant implications for issues of judicial independence, autonomy of legal relationships, and the consistent enforcement of the rule of law.

A variant on the avian context of Lubman’s title involves pigeon rearing and the folk art of pigeon whistles. Pigeon hobbyists in Beijing releasing their flocks to fly over the alleyways (hutong / 胡同) of the city attach to the birds’ wings hand-carved whistles of wood and bamboo that emit mysterious harmonies evoking traditional Chinese poetry[63]. While apparently free, each bird remains closely disciplined within the flock. This combination of autonomy and control that joins contemporary appearance with traditional meaning may well be what China’s legal reformers intend for the socialist rule of law, by subjecting the autonomy of legal actors to the hegemony of Party rule. The importance of Party control over China’s legal system means that legal actors and their transactions and rights remain constrained just as the uncaged birds of Beijing’s hutong are seldom completely free.

3.3 Understanding China’s Minority Policies Through Doucai Porcelain

The art of Chinese porcelain offers insights into China’s laws for governing the minority nationality areas such as Tibet, Xinjiang and Inner Mongolia[64]. Just as the famed Chinese porcelain artists of Jingdezhen who designed the “contending colours” (doucai / 斗采) style of decoration used outlines of cobalt blue to confine the various coloured shapes to be painted onto ceramic forms[65], so too does China’s legal system seek to impose boundaries constraining China’s multiple nationality groups and regional political communities.

China’s governance of its minority nationality areas has been historically a matter of national identity and remains so today. China exists geographically and conceptually at the centre of an ever-widening series of concentric borderlands. The notion of the “Central Kingdom” applied not only to distinguish China from external principalities, but also to differentiate the dominant Han nationality from non-Han groupings within the boundaries of the Chinese empire. Whether we consider the ancient Qin Dynasty (221-206 BCE) with its capital at what is now Xi’an (西安) or the People’s Republic of China whose heart is Beijing, the North China Plain has served for millennia as both the physical and spiritual centre of Han China. While important dynasties such as the Southern Song and early Ming were centred or at least began in the south, for most of the imperial and modern period, the core identity of Han China rested along the course of the Yellow River.

Looking outward, China’s cultural perspective was soon confronted by societies whose structure, belief systems and behaviour conflicted fundamentally with those of the Han. Moving westward, the Han Chinese came into conflict with Central Asian cultures of the Tarim Basin, whose nomadism and religiosity contrasted with the secular urbanism of the Han[66]. Moving north, Han China confronted the pastoral societies of the Gobi[67], with similarly conflicted results. While some of these contacts (especially in the Tarim Basin) were violent, even when relatively peaceful, relentless intrusion from China resulted in the displacement and marginalization of local people. In its relations with the borderlands, the Chinese state (whether Imperial, Republican, or Socialist) tended to view local denizens with a mixture of contempt and fear. As the archetypal “other”, the peoples of these outer regions were considered both inferior and challenging, unequal to the cultural superiority of the Han but also militarily powerful and threatening. Chinese dynasties sought to suppress those barbarians who ventured too close to the empire, to dominate peaceful border areas through settlement and military garrison, and to convert societies to the assumed benefits of Han culture.

Analysis of China’s political relations with the minority nationality areas of Tibet, Xinjiang and Inner Mongolia has tended to focus on human rights dimensions of governance[68], while historical analyses[69] have provided general context for understanding relations with China. Today, China’s national integration priorities in Inner Mongolia, Tibet and Xinjiang have included policies of Han migration, economic development and political control[70]. Consistent with patterns elsewhere in China[71], local resistance to central government rule is particularly acute in the minority nationality areas[72]. In response, the Chinese government has intensified efforts at control by reference to formal law, particularly the PRC Constitution and the Regional Ethnic Autonomy Law[73]. The underlying principles informing minority nationality policy underscore the dominance of central control[74]. Thus, subordination to the Four Cardinal Principles ; safeguarding national unity, preserving national interests, ensuring equality and unity of all national groups, and conditioning central government assistance on policy compliance[75] all diminish the capacity of local autonomy from central control. Indeed, despite or perhaps because of constitutional provisions and specific legislation on minority nationalities, questions arise as to whether these actually protect minority rights[76].

Despite ongoing problems with political repression, denial of self-determination, and destruction of local culture and religion in minority nationality areas, China’s legal system might potentially serve as a vehicle for building more equitable relationship with China proper. Returning to the perspectives of doucai porcelain, we are invited to appreciate that while the multi-colour designs may appear to be separated by the cobalt blue dividing lines, the overall impression is of an integrated whole of equally important parts. We might recall as well that aside from contention, the word “dou” (斗) can also mean “join” — replacing implications of controlling conflict through separation with notions of facilitating interaction through cautious bridge-building[77]. Thus, instead of serving as a mechanism to confine the “contending colours” of diverse socio-economic and political relationships that characterize China’s minority nationalities, China’s systems of law and regulation could potentially work to harmonize the varying normative and organizational elements of human experience in the minority areas with those in China proper, even while recognizing the importance of local communities and interests. Such a transition from control to community may serve to restrain policies and practices of assimilation by enforcing rights to autonomy that are expressed but not enforced through the legal system. Artistic designs of doucai porcelain thus offer a commentary on what has been and what might become of China’s minority nationality policy.

3.4 Understanding China’s International Legal Relations Through Xieyi Painting

The great monk-painter Badashanren (八大山人) (also known as Zhu Da / 朱耷, 1626-1705 CE) exemplified the xieyi (协议) style of Chinese painting that focused on depicting the essence of a subject rather than the details of surface appearance[78]. Xieyi painting offered an alternative to the detailed realism of the gongbi（工笔）”meticulous brush” style associated with official court painters of the Song (980-1279 CE) and Ming (1368-1644 CE) Dynasties. Part of this dynamic sprang from Badashanren’s resistance to the conquering Manchus of the Qing Dynasty (1644-1911 CE), who retained their ethnic identity even while adopting forms of Han Chinese culture and governance. Thus, Badashanren favoured spirited depictions of the essential character of his artistic subjects. This focus on essence and spirit offers lessons in understanding distinctions between form and content in China’s international legal behaviour.

China’s participation in the G-20, its accession to the WTO and ratification of some international human rights treaties, and its efforts at soft power diplomacy suggest a commitment to embrace international legal rules[79]. Yet China has also asserted that its “core interests” outstrip international obligations[80], that its Asia Infrastructure Investment Bank should stand as an alternative to the World Bank and the Asian Development Bank[81], and that it is not bound to the agreed arbitration process mandated by the UN Convention on Law of the Sea[82] (ratified by China in 1996) for disputes in the South China Sea[83]. These tensions suggest conflict between nominal conformity and operational resistance to international law standards. Observers are left to wonder whether China’s participation in international institutions is simply a matter of appearance or involves acceptance of underlying values.

China’s performance of international treaty standards combines the appearance of formal compliance with underlying normative resistance[84]. China’s human rights performance offers a compelling example where China continues to face criticism[85]. In the area of civil and political rights, the imprisonment of Nobel Laureate Liu Xiaobo, imprisonment of economics professor Ilham Tohti, and detention and abuse of defense lawyers[86] suggest a pattern of disregard of internationally agreed standards. Despite regime claims to support the rule of law[87], judicial independence is sharply limited and abuse by police and security forces is widespread[88]. In the socio-economic sphere, corruption remains severe despite efforts at reform[89]. Major economic enterprises in China are controlled by family members and close associates of regime leaders[90]. Declining disposable income, increasing unemployment, and income inequality remain serious[91]. Environmental degradation continues at an alarming rate[92]. The horrific chemical explosion and fire in Tianjin in August 2015 illustrated overlapping problems of lax regulation, corruption, and lack of transparency[93]. Socio-economic challenges combine with authoritarian repression of political and civil rights to create a general climate of human rights deprivation[94].

While China’s human rights challenges are painfully evident, China’s human rights orthodoxy expresses resistance to international standards[95]. China’s most recent human rights White Paper (2014) claimed that human rights in China should depend on domestic political arrangements, and links human rights improvements to conditions of development[96], contrary to the widely accepted principles to the contrary[97]. Paralleling official White Papers, China’s human rights “Action Plans” have framed human rights as subject to authoritarian rule by the Party/state, effectively ruling out progress on a wide array of human rights[98]. Resistance to international standards is also evident in China’s 2009 and 2013 presentations to the UN Human Rights Council under the Universal Periodic Review (UPR) process, where China denied abuses and maligned critics of its human rights record[99]. This dismissive pattern was evident once again in China’s response to the UN Committee against Torture’s investigation and hearing in 2015[100].

China’s international legal behaviour invites consideration of the distinction between form and substance. Just as Badashanren rejected the formalism of orthodox tradition in favour of capturing the essential character of his subjects, observers of China’s engagement with the international legal system should react with scepticism to superficial replication of international law forms, and look instead at whether China’s legal behaviour embraces the essential character of international law standards. Just as Badashanren’s concept of the essence of his subjects informed his depiction of their appearance, so too should China’s participation in international legal discourses and institutions be interpreted in light of the regime’s core values. Indeed looking beyond surface appearances to determine the normative essence of China’s perspectives on the international legal order is essential to understanding China’s international behaviour. Informed by the primacy of essence over appearance in the paintings of Badashanren, observers of China’s international legal relations can more accurately distinguish between superficial compliance and substantive resistance. Just as Badashanren focused on the essence of his subjects rather than their superficial appearance, so too are international observers invited to do the same with respect to China’s international legal relations.

3.5 Summary

Art and law enjoy a special relationship in China. Law plays a key role in protecting artistic property and safeguarding China’s cultural heritage. But law also is used vigorously to control art and suppress political expression through art. As well, art can offer potentially useful insights for understanding China’s socialist legal system. Rather than contending discourses, art and law occupy spaces of complementarity, inviting consideration of multiple opportunities for interdisciplinary inquiry.

Art helps as well in our consideration of the future of China’s legal system. Paintings by the Yuan Dynasty (1271-1368 CE) master Ni Zan (倪瓚) suggest the difficulties of forecasting China’s legal performance going forward. An aristocratic and patriotic Han responding to the challenges of Mongol occupation, Ni Zan (1301-1374 CE) often depicted a troubled present and an uncertain future[101]. Ni’s landscapes often showed a frail and barren foreground separated by blank space from a background view of distant mountain fastness. Reflecting perspectives of his time, Ni Zan’s paintings expressed anxiety over the present, and uncertainty about the future — a perspective that is often evident in China today. While the future may well appear as distant and uncertain in the face of contemporary challenges as the distant mountains in Ni Zan’s landscapes, the path forward need not be. Academic and policy analysis and civil society engagement that supports more fulsome rule of law in China can benefit a future in which both law and the arts flourish.