chapter 13 Legal Instrumentalism in China: The Case of Hukou Legislation in Beijing and Shenzhen
Qiqi Fu and Paola Pasquali
I Introduction
According to the 1958 Household Registration Administrative Regulations, migra- tion of Chinese citizens within China requires various forms of approval depend- ing on their destinations. However, since the 1980s, the implementation of such legislation has been uneven. This chapter considers the application and imple- mentation of hukou-related legislation in both Beijing and Shenzhen. This analysis will look over the last thirty years and posit it as a case to illustrate a peculiar char- acteristic of some administrative legislation in China: legal instrumentalism. Based on this approach, laws should not be considered as a manifestation of universally fixed norms, but rather as an instrument to promote short and mid-term interests of the State and society through policy enforcement. By looking at Shenzhen and Beijing cases, this chapter will conclude that, apart from its original function of population management, hukou legislation over the last years has been largely seen by local governments as an instrument to promote local economic growth.
II Background of the National Law and Statistics
In the first years of the People’s Republic of China, freedom of movement for all Chinese citizens was practiced and recognized in the law, within docu- ments such as the 1949 Common Program of the Chinese People’s Political Consultative Conference1 and the 1954 Chinese Constitution.2 However, in the
* This chapter research was made possible by a scholarship from China eu Law School at China University of Political Science and Law, Beijing. ** PhD Candidate, Erasmus University, Rotterdam, the Netherlands. Contact: michelleqiqi. [email protected]. *** Research Associate, China-eu International Business School Africa, Accra, Ghana & Birkbeck School of Law, University of London, uk. Contact: [email protected]. 1 “Common Program of the Chinese People’s Political Consultative Conference,” The First Plenary Session of The Chinese People’s Political Consultative Conference, September 9, 1949. 2 “People’s Republic of China Constitution,” The First Session of The National People’s Congress, September 20, 1954, Article 90 [hereinafter Constitution].
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1950s, the effects of rural migrants moving to cities began to alarm the authori- ties. As a consequence, the first regulations on household registrations were introduced3; the first Provisional Regulations on the Governance of Urban Populations was enacted in 1951.4 In 1955, the State Council issued the Instruction on the Establishment of a Household Registration System.5 This framework was enhanced and defined in more detail in 1958 by the Household Registration Administrative Regulations, enacted by the Standing Committee of the National People’s Congress.6 The regulations, still in force today, provide every prc citizen with a household registration (hukou dengji 户口登记) by birth. The registration consists of two parts; the first aspect of hukou registra- tion is the classification of residence (hukou suozaidi 户口所在地), based on an individual’s regular residence. This in turn falls within two categories: urban centers or rural settlements. The second classification is hukou classification (hukou leibie 户口类别), essentially referred to as either agricultural (nongye 农业) or non-agricultural (feinongye 非农业) hukou, which determines a person’s entitlement to an array of rights for activities in a specified place.7 When the hukou system was instituted in the late 1950s by the newly entitled govern- ment, it was intended to buttress industrialization as China was building up a planned economy system.8 Nevertheless, at the time of its immediate estab- lishment, this legislation was not implemented due to rural-urban migration
3 China took inspiration from the Soviet Union internal passports system to establish its hukou system in the 1950. However, diverse forms of hukou system have existed in China for at least twenty-five centuries since the Qin dynasty; before the 1950s it was mainly conceived as a system for population census and taxation. See Feiling Wang, Organizing Through Division and Exclusion: China’s Hukou System (Stanford: Stanford University Press, 2005), 33–43. 4 “Provisional Regulations on the Governance of Urban Populations,” Ministry of Public Security, July 16, 1951. 5 “Instruction on the Establishment of a Household Registration System,” State Council, June 9, 1955. 6 “Instruction on the Establishment of a Household Registration System,” National People’s Congress, 9 January 1958. 7 Scholars have remarked the weak legal basis of such an all-encompassing institution: the legal grounds of the hukou system being to this days a regulation passed by npc Standing Committee, rather than the National People’s Congress in plenary session. See for instance Hilary K. Josephs, “Residence and Nationality as Determinants of Status in Modern China,” Texas International Law Journal 46 (2011): 298. 8 At that time, China’s economy was overwhelmingly relying on agriculture: 80% of the popu- lation lived in rural areas, and was organized into collectives while a 20% of the population was organized into work units in cities. See Andrew G. Walder, Communist Neo-Traditionalism: Work and Authority in Chinese Industry (Berkeley: University of California Press, 1986), 37–38.