china law and society review 4 (2019) 71-101
brill.com/clsr
Many Voices in China’s Legal Profession: Plural Meanings of Weiquan
Ethan Michelson Indiana University Bloomington [email protected]
Abstract
Figuring prominently in prevailing portraits of activism and political contention in contemporary China are weiquan [rights defense] lawyers. Outside of China, the word weiquan emerged in the early 2000s and had achieved near-hegemonic status by the late 2000s as a descriptive label for a corps of activist lawyers—who numbered be- tween several dozen and several hundred—committed to the cause and mobilizing in pursuit of human rights protections vis-à-vis China’s authoritarian party-state. This article challenges the dominant nomenclature of Chinese activism, in which weiquan in general and weiquan lawyers in particular loom large. A semantic history of the word weiquan, traced through an analysis of four decades of officially sanctioned rights discourse, reveals its politically legitimate origins in the official lexicon of the party-state. Unique survey data collected in 2009 and 2015 demonstrate that Chinese lawyers generally understood the word in terms of the party-state’s official language of rights, disseminated through its ongoing public legal education campaign. Because the officially-sanctioned meaning of weiquan, namely “to protect citizens’ lawful rights and interests,” is consistent with the essential professional responsibility of lawyers, fully half of a sample of almost 1,000 practicing lawyers from across China self- identified as weiquan lawyers. Such a massive population of self-identified weiquan lawyers—approximately 80,000 in 2009 assuming that the sample is at least reason- ably representative—makes sense only if local meanings of the term profoundly di- verge from its dominant English-language representations. Concluding speculations consider and call for further research on why this word was appropriated and rede- fined by activist Chinese lawyers in the first place.
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Keywords
China – lawyers – legal profession – weiquan – activism – rights defense movement – contentious politics – political discourse
1 Introduction
Ever since the word weiquan 维权 blazed into English-language discourse on the Chinese legal system in the mid-2000s, it has been associated with activ- ism. In English-language accounts, weiquan is often used interchangeably with its literal translation, “protecting rights” or “defending rights” (and sometimes “safeguarding rights”), and is represented almost uniformly in politically con- tentious terms (Fu and Cullen 2008, 111n1). I challenge this dominant represen- tation by demonstrating that, for much if not most of its semantic history within China, the meaning of weiquan has been far from monolithic. I argue that, in the time since weiquan was first introduced to audiences outside China as a modifier of “lawyer” to signify a type of activist engaged in a broader social movement aimed at strengthening individual rights vis-à-vis the authoritarian party-state, Chinese lawyers themselves tended to disagree with this mean- ing. Just as activists never accounted for more than a minuscule share of the Chinese legal profession, activist meanings of weiquan, too, have never been more than peripheral in this word’s broader semantic landscape shaped and inhabited by Chinese lawyers. To stimulate debate and further research, I propose in this article that the word weiquan has been repeatedly misrepresented—albeit perhaps unknowingly—since its introduction to English-language audiences. I develop this proposition in three steps. First, I outline a semantic history of the word weiquan, in which its original meaning is rooted firmly in and stems squarely from China’s official legal construction program ongoing for four decades. Sec- ond, drawing on unique survey data, I demonstrate the plurality of meanings— most of which carry no political or activist connotations—held by Chinese lawyers during and beyond the heyday of their activism in the mid- to late 2000s. Finally, I speculate about how weiquan’s semantic misrepresentation occurred. Episodic hostility from China’s party-state to the word weiquan cor- responds with crackdowns on the activist fringe of the Chinese legal profes- sion and obscures the official roots of the term. As we will see, weiquan dis- course is part and parcel of the party-state’s legal construction program. We cannot understand weiquan without understanding China’s ongoing public legal education campaign, which has accompanied four decades of frenetic lawmaking.
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Admittedly, I have as many questions as answers. I can only speculate about the circumstances under which weiquan was appropriated and redefined by activists. The politically legitimate origins of this word in the official lexicon of the party-state could be the logic of its appropriation by activists. The strategic choice of activists to cloak themselves in the protection of party-state discourse in their struggles against the party-state would be straight out of the “rightful resistance” playbook (O’Brien and Li 2006). More research will be necessary to fill in gaps in the history of this word’s meteoric rise in English-language dis- course about contemporary China.
2 Weiquan’s Dominant Meaning outside China
In prevailing English-language narratives, weiquan lawyers [weiquan lüshi 维 权律师] appeared in the early 2000s, seemingly out of thin air, crystalizing into the coherent entity we recognize today as “activist lawyers,” thanks to im- portant legal victories that they fought and won, including the 2001 Qi Yuling 齐玉苓 case, the 2003 Sun Zhigang 孙志刚 incident, and the 2004 Zhang Xianzhu 张先著 case (Feng 2009; Fu and Cullen 2011, 42; Hand 2006; Kellogg 2009; Nesossi 2015; Pils 2006; 2015, 48–49; Teng 2012). Outside China, the mean- ing of the word weiquan quickly assumed a quality of taken-for-grantedness. Its dominant and widely shared meaning is the practice, primarily but not ex- clusively by lawyers, of pushing the political envelope in collective efforts to advance and defend citizen rights, primarily but not exclusively through the use of legal tools provided by the party-state. Weiquan is unambiguously repre- sented to—and generally understood among—audiences outside China as a popular tactic of contentious politics, as a core part of activist repertoires of contention. Weiquan lawyers “actively use legal institutions and other platforms to chal- lenge China’s authoritarian system” (Fu and Cullen 2011, 41). Their common cause of human rights protection and public interest legal work and their role as the vanguard of an ostensibly broader “weiquan movement” are among their defining characteristics (Feng 2009; Gallagher 2017; Lee 2008; Pils 2015). Be- cause “weiquan or human rights lawyering” is a “distinct form of legal practice in China, rights lawyers such as Gao Zhisheng [高智晟] have suffered suspen- sion and disbarment in retaliation for their advocacy” and have “tended to be stigmatised as radicals, even by colleagues” (Pils 2018, 5–6). Scholars and jour- nalists use many different terms synonymously and interchangeably with “weiquan lawyer,” including “rights protection lawyer,” “rights defense lawyer,” “rights defender,” “human rights lawyer,” “cause lawyer,” “political lawyer,” “pub- lic interest lawyer,” and “civil rights lawyer” (Chen 2015, 131; Fu 2014, 2018; Fu
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Zheng Enchong [郑恩宠], were charged with crimes after accepting politically delicate cases” (Kahn 2006a). – December 23, 2006: “The authorities under President Hu Jintao have been seeking to cripple China’s weiquan, or rights protection, movement, which consists of journalists, grass-roots organizers and lawyers who use legal means to defend people who feel they have been wronged by officials” (Kahn 2006b). – February 25, 2007: “The two Mr. Lis [Li Jinsong 李劲松 and Li Jianqiang 李 建强] are part of a momentous struggle over the rule of law in China. Young, well educated and idealistic, they and other members of the so-called weiquan, or rights defense, movement, aim to use the laws and courts that the Communist Party has put in place as part of its modernization drive to constrain the party’s power” (Kahn 2007). – April 29, 2008: “These lawyers who form what is loosely called the weiquan, or ‘rights protection’ movement, often represent the poor and indigent: farmers who have had their land taken away by local officials, residents who have been forcibly evicted and various victims of corrupt local leaders” (Schiller 2008). An obvious association between weiquan and politically contentious activism is discernable from skimming the over 1,200 English-language newspaper arti- cles in ebsco’s Newspaper Source Plus and Newswires databases published between 2000 and 2018 and containing keywords associated with both weiquan and lawyer activism. Spikes in foreign media attention to so-called weiquan lawyers doing the work of “rights defense” or “rights protection” correspond to political crackdowns on notable activist lawyers. – 2006: Captured in the second 2006 New York Times article listed above (Kahn 2006b), the first major crackdown on activist lawyers who represent- ed Falun Gong 法轮功 practitioners and took other politically unaccepta- ble cases was widely reported in English-language newspapers. – 2009: The arrest of Xu Zhiyong 许志永, co-founder of the Open Constitu- tion Initiative [Gongmeng 公盟] (Pils 2006, 1242n113; 2015, 258–59; Teng 2012), and the disbarment of over a dozen activist lawyers in Beijing precipi- tated a flurry of media attention outside China to weiquan activism. – 2011–12: A major spike in English-language newspaper articles accompanied the arrest, disappearance, and prosecution of weiquan activists, including Gao Zhisheng, Chen Guangcheng, Jiang Tianyong 江天勇, and Liu Xiaoyuan 刘晓原, as well as non-lawyers, such as Ai Weiwei 艾未未, Yu Jie 余杰, Li Tie 李铁, Chen Wei 陈卫, and Chen Xi 陈西. – 2015: The infamous “709” (July 9) roundup of over two hundred activist lawyers across China—including Pu Zhiqiang 浦志强, Zhou Shifeng 周世
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锋, and Li Heping 李和平—gave rise to the largest spike to date of foreign media attention to weiquan activism (Fu 2018; Liu and Halliday 2016, 157–67). Fu and Cullen’s now-classic statements published in 2008 and 2011, followed by Pils’s 2015 book, on this tiny sliver of the Chinese legal profession helped to ce- ment the dominant representation of weiquan lawyers as human rights activ- ists (Fu and Cullen 2008, 2011; Pils 2015). Reflecting and further consolidating this dominant representation is a page on Wikipedia devoted to “weiquan law- yers,” in which they are defined as “a small but influential movement of law- yers, legal practitioners, scholars and activists who help Chinese citizens to assert their constitutional, civil rights and/or public interest through litigation and legal activism. Weiquan lawyers represents many cases regarding labour rights, land rights, official corruption, victims of torture, migrants’ rights” (“Weiquan lawyers” n.d.). This meaning of weiquan now enjoys near-hegemonic status outside China (Bennett et al. 2015; Chen 2015; Cheung 2013; Feng 2009; Fu 2018; Nesossi 2015; Teng 2012; Zhou 2018). Only a small handful of studies entertain the possibility that at least some lawyers who use the word weiquan to describe themselves or their work are not politically contentious activists (Benney 2013; Givens 2014; Li 2018; Michelson and Liu 2010).
3 Weiquan’s Meanings within China
Within China, by contrast, the meaning of weiquan is far from hegemonic. Among Chinese lawyers, the term remained contested and multivalent long after the dawn and heyday of so-called weiquan lawyers in the 2000s. Pils (2015, 277) acknowledges in passing that Chinese lawyers are not unified in their un- derstanding of weiquan. She suggests but leaves unexplored the possibility that dissensus among lawyers about the meaning of weiquan stems from the fact that it was used “initially as an idea promoted by the government” and “an of- ficially propagated idea” in the 1990s (Pils 2015, 6, 49). To date, Benney’s (2013) effort remains the most thorough—and perhaps the only—one to trace the origins of the word weiquan and to identify the ways in which and reasons that it was appropriated and redefined by activists.
There has been practically no examination by Western academics of weiquan as it existed before the mid-2000s. The earlier discussion in Eng- lish of the weiquan phenomenon, such as the discussion paper by Human Rights in China (2006) treated the idea as it if had materialised in about 2004, ignoring the governmental uses of weiquan before then and thus the whole question of appropriation. In contrast to this, it is possible to
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trace the uses of weiquan (and of course the concept of “rights defence” which it signifies) from the late 1980s to today. Benney 2013, 26
Building on and clarifying this line of inquiry are my central tasks in this article. Over a decade ago, scholars began to link political contention, rights con- sciousness, and legal mobilization in China to the party-state’s legal construc- tion program of lawmaking, legal institutional capacity building, and public legal education. According to O’Brien and Li, aggrieved individuals learned from the official public legal education—also translated as “legal dissemina- tion” and “legal popularization” [pufa 普法]—campaign ongoing since the 1980s to define and frame their grievances as rights violations, to invoke officially sanctioned rights discourse in their efforts to get justice. Insofar as weiquan entails the practice of using the language of the party-state’s laws and policies to defend rights granted by the party-state, it bears the defining hall- marks of “rightful resistance” (O’Brien and Li 2006, 11, 40). Indeed, Fu and Cul- len assert that weiquan is a form of rightful resistance: “Weiquan takes place in the larger context of what O’Brien and Li have referred to as rightful resistance” (2008, 127). Gallagher, too, reveals that, as a consequence of the party-state’s dissemination of slogans intended to educate people about their legal rights and to empower people to invoke them, workers “have taken the state at its word to use the law as a weapon” (2005, 132; also see Gallagher 2006). Nowhere in this literature, however, have scholars identified the precise source of the word weiquan in the discourse of the party-state. Although Ben- ney rightly traces—albeit in a general way—the semantic origins of weiquan to China’s public legal education campaign (Benney 2013, 9, 41, 69), he does not identify specific language embedded in slogans, bodies of law, and regulations from which the word weiquan emerged. Fu and Cullen link the practice of weiquan—but not the word itself—to officially sanctioned rights discourse. As far as the word is concerned, they simply state its literal meaning of “rights protection” (Fu and Cullen 2008, 111n1). Gallagher (2005, 2006, 2017) came tan- talizingly close to establishing a link between the word weiquan and official rights discourse by focusing on the official slogan to “use the law as a weapon.” Elsewhere, the same slogan is characterized as “the ubiquitous official exhorta- tion to ‘use the legal arsenal to protect your lawful rights and interests’” [yunyong falü wuqi lai weihu ziji de hefa quanyi 运用法律武器来维护自己的 合法权益] (Michelson 2006, 5). Upon careful inspection, one sees that em- bedded within this slogan is weiquan: wei 维means “protect” and quan 权 means “rights.”
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By focusing on the party-state’s ubiquitous discourse of “defend[ing] their ‘lawful rights and interests’ (hefa quanyi 合法权益),” O’Brien and Li (2006, 5), too, came tantalizingly close to exposing the origins of the word weiquan. Note again that weiquan is embedded in officially sanctioned rights discourse: wei means “defend” and quan means “rights.” Between 1995 and 2003, the People’s Daily published over 1,000 articles that “discussed respecting the ‘lawful rights and interests’ (hefa quanyi) of rural people” (O’Brien and Li 2006, 29). Despite clear semantic clues pointing to the official origins of the word weiquan, O’Brien and Li inexplicably draw the opposite conclusion, namely, that weiquan originated with activists and was subsequently appropriated by state actors: “Thanks in part to the spread of rightful resistance, terms such as ‘rights defense’ (weiquan) have gained acceptance in reform-minded journals and adventurous newspapers and, more gradually, in the mainstream press, includ- ing People’s Daily” (O’Brien and Li 2006, 127). Grammatically speaking, weiquan is a contraction of weihu quanyi 维护权 益 [protection/defense of rights and interests]. More accurately, it is a contrac- tion of weihu hefa quanyi 维护合法权益 [protection/defense of lawful rights and interests] (Benney 2013, 43, 84). As we just saw and will see again below, both the contraction of weiquan and its expanded forms have appeared in the People’s Daily for decades. The origins of weiquan stem from public legal educa- tion about bodies of law, Supreme People’s Court interpretations, and admin- istrative resolutions and circulars containing the expanded form of this word. Most tellingly are the Provisional Regulations on Lawyers, issued on August 26, 1980, which call on lawyers to perform weiquan work. They stipulate that the professional responsibilities of lawyers include protecting the lawful rights and interests of (1) their organizational clients (Article 4: “weihu pinqing danwei de hefa quanyi 维护聘请单位的合法权益”), (2) their individual clients (Article 5: “weihu weituoren de hefa quanyi 维护委托人的合法权益”), and (3) criminal defendants (Article 6: “weihu beigaoren de hefa quanyi 维护被告人 的合法权益”). It also stipulates that the lawful rights and interests of lawyers themselves are protected (Article 19: “weihu lüshi de hefa quanyi 维护律师的 合法权益”). All four provisions remain in the 1996 version (still the current law, as amended in 2001, 2007, 2012, and 2017) of the Lawyers Law [Zhonghua renmin gongheguo lüshi fa 中华人民共和国律师法, Articles 29, 30, 31, and 46 respectively]. Article 2 in the current law also stipulates that lawyers have the duty to protect the lawful rights and interests of involved parties [“lüshi yingdang weihu dangshiren hefa quanyi 律师应当维护当事人合法权益”]. In short, for decades the essential professional rights and duties of Chinese lawyers have been defined by law in terms of weiquan. For this reason, we should not be surprised to learn from the survey findings presented below that
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Chinese lawyers tend to understand the word weiquan as simply carrying out their officially prescribed, legally mandated professional duties. Indeed, many if not most of the Chinese lawyers I surveyed viewed the practice of weiquan as not the least bit “distinctive” or “radical” (in contrast to Pils [2018, 5–6]). The following are additional examples of official sources of law that, by vir- tue of their title and content, demand the practice of weiquan not only by law- yers but also by state actors and ordinary citizens more generally: – 1987: Beijing Municipal Resolutions Regarding Protecting the Lawful Rights and Interests of the Elderly [Guanyu weihu laonianren hefa quanyi de jueyi 关于维护老年人合法权益的决议]1; – 2002: Circular of the Ministry of Land Resources on Protecting the Lawful Rights and Interests of Farmers Whose Land Was Requisitioned [Guotu ziyuan bu guanyu qieshi weihu bei zhengdi nongmin hefa quanyi de tong- zhi 国土资源部关于切实维护被征地农民合法权益的通知]; – 2007: Report of the State Council on the Work of Protecting the Lawful Rights and Interests of Workers [Guowuyuan guanyu weihu zhigong zhigong hefa quanyi de baogao 国务院关于维护职工合法权益工作情 况的报告]; – 2010: Urgent Circular of the Office of the State Council on More Rigorous- ly Regulating the Work of Land Requisitioning, Demolition, and Reloca- tion to Protect the Lawful Rights and Interests of the Masses [Guowuyuan bangongting guanyu jinyibu yange zhengdi chaiqian guanli gongzuo qieshi weihu qunzhong hefa quanyi de jinji tongzhi 国务院办公厅关于进一步 严格征地拆迁管理工作切实维护群众合法权益的紧急通知]; – 2012: Circular of the Supreme People’s Court Regarding Fully Bringing into Play Civil Trial Functions and Protecting the Lawful Rights and Interests of Women, Children, and the Elderly [Zuigao renmin fayuan guanyu chongfen fahui minshi shenpan zhineng, yifa weihu funü, ertong he laonianren hefa quanyi de tongzhi 最高人民法院关于充分发挥民事审判职能，依法 维护妇女、儿童和老年人合法权益的通知]; and – 2014: Opinions of the Supreme People’s Court on Improving the Functions of Protecting National Defense Interests and the Lawful Rights and Interests of Military Personnel and Their Families [Zuigao renmin fayuan guanyu jinyibu fahui zhineng zuoyong weihu guofang liyi he junren junshu hefa quanyi de yijian 最高人民法院关于进一步发挥职能作用维护国防利 益和军人军属合法权益的意见].2
1 In 2012 these resolutions were replaced by the Law of the People’s Republic of China on Guar- anteeing the Rights and Interests of the Elderly [Zhonghua renmin gongheguo laonianren quanyi baozhang fa 中华人民共和国老年人权益保障法]. 2 I am grateful to Adam Liff for pointing out that official weiquan discourse extends to China’s national security and territorial sovereignty claims in, for example, the South China Sea and
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The remainder of this section is divided into two parts. First, I summarize Chinese-language media representations of the word. Second, I share Chinese lawyers’ plural understandings of the word in their own voices.
3.1 Chinese-Language Media Representations of Weiquan Following the July 9, 2015 roundup of activist lawyers across China, the People’s Daily published articles containing anti-weiquan rhetoric. Under the headline “Exposing the Dark Underbelly of ‘Weiquan’ Incidents,” a July 12, 2015 article was about lawyers inciting protests and petitioning outside the courtroom (Huang 2015). Appearing on the same page as this article was an op-ed [duan- ping 短评] under the headline “Lawyers’ Battlefield Should Be the Courtroom,” which includes the following passage:
Behind the scenes of a series of sensitive flashpoint events lurks “black hands.” The dark underbelly of “weiquan” incidents shocks and angers people: for the sake of their own self-interest, they deceive, defraud, and mislead the people by severely polluting cyberspace and severely dis- rupting social order. For abusing netizens’ sympathy and sense of justice, they should be dealt a severe blow and condemned. Zheng 2015
The People’s Daily published a third anti-weiquan commentary on July 15, 2015. Under the headline “Lawyers Should Be Models for Respecting and Obeying the Law,” the author (the editor-in-chief of the Ministry of Justice’s magazine Justice of China [Zhongguo sifa 中国司法]) wrote:
Lawyers not only should not break laws and regulations in their profes- sional practice, but should actively set an example for respecting and obeying the law by taking the initiative of educating and guiding their clients on rational weiquan. Any weiquan behavior must be conducted within a rule-of-law framework in accordance with the law, and no lawyer has the prerogative to violate the law in their professional practice. Liu 2015
Benney points to similar official anti-weiquan rhetoric in the context of even earlier crackdowns on activist lawyers. He also rightly argues that these
the East China Sea—“protecting state maritime rights and interests [weihu guojia haiyang quanyi 维护国家海洋权益].” Additional bodies of law, regulations, and directives, such as the 1984 Beijing Municipal Resolutions Protecting the Lawful Rights and Interests of Women and Children [Baohu funü ertong hefa quanyi de jueyi 保护妇女儿童合法权益 的决议], use in their titles the synonym baohu 保护 in lieu of weihu 维护.
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episodes of anti-weiquan rhetoric were anomalous blips in an ongoing stream of official media reports anchoring weiquan within officially sanctioned rights discourse (Benney 2013, 27). Indeed, no sooner had the People’s Daily con- demned the weiquan “black hands” swept up in the July 9 crackdown than it returned to business as usual reporting on the importance of protecting the rights of doctors [“yifa weihu yishi quanyi 依法维护医师权益”], (July 17, 2015; Jiang, Wang, and Wang 2015) and promoting consumer weiquan [“jiakuai jianli xiaofeizhe quanyi baohu xietiao gongzuo jizhi…xiaofei weiquan xin geju 加快建立消费者权益保护协调工作机制…消费维权新格局”], (July 29, 2015; Wang 2015), for example. Between October 11, 1994, and March 28, 2019, the People’s Daily published 814 articles containing both weiquan and “lawyer.”3 The first article (October 11, 1994) concerned the promotion of women’s legal knowledge through public legal education and the elevation and expansion of women’s weiquan capacity [“tigao guangda funü yifa weiquan de nengli 提高广大妇女以法维权的能 力”] (People’s Daily 1994). The second article (October 20, 1997) celebrated the dawn of weiquan consciousness in the wake of the 1992 Law of the People’s Republic of China on Guaranteeing the Rights and Interests of Women [Zhon- ghua renmin gongheguo funü quanyi baozhang fa 中华人民共和国妇女权 益保障法]. It reports the blood, sweat, and tears selflessly devoted to the cause of women’s rights from the almost three thousand Women’s Federation “weiquan cadres” [weiquan ganbu 维权干部] at the county level and higher (Jia 1997). The third article (July 21, 1998) reported the establishment of the All China Lawyers Association (ACLA) Weiquan Committee. In 1997, at a “weiquan con- ference” convened in Beijing, the acla had passed the Rules of the Lawyers Association Committee for Protecting the Lawful Rights and Interests of Law- yers [Lüshi xiehui weihu lüshi zhiye hefa quanyi weiyuanhui guize 律师协会 维护律师执业合法权益委员会规则], which took effect on January 1, 1998 (Wang 1998). That its full official name was generally abbreviated to “weiquan committee” is further affirmation that weiquan is a contraction of “protection of lawful rights and interests.” The subsequently banned China Legal News [Zhongguo fazhi bao 中国法制报] reported that the main purpose of the committee was to protect lawyers’ professional rights, primarily in the field of criminal defense, in order to stem the exodus of lawyers from this field of prac- tice and better serve the legal needs of criminal suspects (Xu 1998). Sever- al years later, China Newsweek [Xinwen zhoukan 新闻周刊] reported that
3 I performed this search on April 4, 2019.
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80 percent of the cases handled by this committee were related to Article 306 of the Criminal Law (Han 2004). Less widely reported is the fact that this com- mittee is also responsible for lawyer discipline [lüshi chengjie 律师惩戒]. Weiquan, as reported in the People’s Daily, went far beyond the protection of lawyers’ rights and has extended far past the time when it was ostensibly un- derstood within China in politically contentious terms. It reported on weiquan in many contexts, including: – 1999: “weiquan projects” [weiquan gongcheng 维权工程] to protect farmers from predatory township and village leaders levying unlawful fees and tax- es and “youth weiquan stations” [qingshaonian weiquan gang 青少年维 权岗]; – 2001: women’s weiquan [funü weiquan 妇女维权], environmental weiquan action [huanjing weiquan xingdong 环境维权行动], weiquan week activi- ties [weiquan zhou huodong 维权周活动, short for women’s weiquan week, launched on March 8, International Women’s Day]; – 2002: youth weiquan hotline [qingshaonian weiquan rexian 青少年维权热 线]; – 2003: weiquan conveniently accessible to the people [bianmin weiquan 便民 维权]; – 2004: supply law for weiquan [tigong weiquan falü 提供维权法律], migrant workers’ weiquan [mingong weiquan 民工维权], weiquan center for prima- ry and middle school students [zhongxiao xuesheng weiquan zhongxin 中小 学生维权中心], and youth weiquan center [qingshaonian weiquan zhongx- in 青少年维权中心]; – 2005: union weiquan [gonghui weiquan 工会维权], weiquan strategic plan [weiquan zhanlüe guihua 维权战略规划], and workers’ legal weiquan cent- er [zhigong falü weiquan zhongxin 职工法律维权中心]; – 2006: union workers’ legal weiquan center [gonghui zhigong falü weiquan zhongxin 工会职工法律维权中心] and migrant workers’ weiquan center [mingong weiquan zhongxin 民工维权中心]; – 2007: weiquan center for migrant workers [nongmingong weiquan zhongxin 农民工维权中心]; – 2008: environmental weiquan [huanjing weiquan 环境维权]; – 2009: authors’ weiquan [zuojia weiquan 作家维权]; – 2010: consumer weiquan [xiaofeizhe weiquan 消费者维权], tourist weiquan [youke de weiquan 游客的维权], home-buyer weiquan [goufangzhe weiquan 购房者维权], and youth weiquan; – 2011: publisher’s weiquan [chubanshe weiquan 出版社维权]; – 2012: weiquan center for migrant workers [nongmingong weiquan zhongxin 农民工维权中心];
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– 2015: migrant workers’ weiquan placard [nongmingong weiquan gaoshipai 农民工维权告示牌]; and – 2016: consumer weiquan. Accompanying some of these articles are photos of lawyers at outdoor tables delivering public legal education and of delighted migrant workers gleefully clutching wads of cash recovered from deadbeat employers. Although the word weiquan first appeared in the People’s Daily in 1991 (Ben- ney 2013, 41), the full expression (“protect lawful rights and interests”) from which it derives has deeper roots. Articles in the People’s Daily containing this expression in the context of the rights of criminal defendants [wei beigaoren bianhu, weihu ta de hefaquanyi 为被告人辩护，维护他的合法权益; weihu beigaoren de hefa quanyi 维护被告人的合法权益] first appeared in 1979. Al- though Pils claims that the word weiquan is a contraction of weihu quanli 维护 权利 (2006, 1225; 2015, 5), articles containing variants of this expression are few and far between. Years ago, I compiled a database of newspaper articles about lawyers pub- lished by Chinese national and local newspapers. When I stopped adding new material, my collection totaled over six thousand newspaper articles published between 1980 and 2004. Their weiquan-related content is consistent with that of the People’s Daily articles summarized above. About 370 of the articles in my collection contain the word weiquan, the earliest of which was published in November 1996 in the Workers’ Daily [Gongren ribao 工人日报]: “Chinese law- yers are playing an active role helping citizens defend their rights [weiquan] in accordance with the law and recover tort compensation,” and “Following the implementation of the Labor Law, workers’ weiquan awareness has strength- ened” (Ma 1996). Given that my collection is limited to articles about lawyers, the focus on the protection of lawyers’ rights through “lawyer weiquan” [lüshi weiquan 律师维权], “lawyer association weiquan” [lüxie weiquan 律协维权], and the “weiquan committee” discussed earlier [weiquan weiyuanhui 维权委 员会] is unsurprising. But it also contains reports on weiquan in many of the same contexts listed above, including consumer weiquan, youth weiquan, mi- grant worker weiquan, worker weiquan, and women’s weiquan, as well as some additional ones, such as disability weiquan [canjiren weiquan 残疾人维权] and investor weiquan [touzizhe weiquan 投资者维权]. At the same time, once again, the full expression from which the contrac- tion emerged has deeper roots. The first article in my collection containing some variant of “protecting lawful rights and interests” was published in Sep- tember 1980 in China Legal News [Zhongguo fazhibao 中国法制报]. In it, Li Yunchang 李运昌, China’s first deputy minister of justice, reported the 1980 Provisional Regulations on Lawyers [Zhonghua renmin gongheguo lüshi
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3.2 Chinese Lawyers’ Understanding of Weiquan in Their Own Words Results of an analysis of over 170,000 messages posted—mostly by lawyers and mostly in 2004—to the acla’s online forum at best only weakly support the claim that Chinese lawyers understood weiquan as politically contentious activism.
Although acla forum users clearly articulated the strong importance they attached to the protection of legal rights, they rarely used the lan- guage of “rights defense” (weiquan, 维权). To be sure, they did invoke the language of “rights defense.” Of all 24,645 discussion threads in the ar- chive, 630 (2.5%) contain the word weiquan (维权). Users who did invoke it, however, invoked it in its literal sense endorsed by the party-state: to use the law as a weapon. … Rarely was the term weiquan used to refer to a specific type of lawyer. Only five discussion threads contain the term “维权人士” (rights defender) and only nine contain the term “维权律 师” (rights defense lawyer), both of which were ostensibly in wide circu- lation at this time. Weiquan is simply a contraction for weihu … hefa quanyi (维护 … 合法权益, “to protect [someone’s] lawful rights and in- terests”). This full expression of weiquan appeared in 645 (or 2.6%) of all discussion threads (e.g., 维护当事人的合法权益，维护自己的合法 权益，维护律师的合法权益, etc.). Michelson 2020
I hasten to add that the distribution of variants of this expression—the spe- cific actors whose rights are the subject of protection—are identical in the acla forum archive and my collection of newspaper articles: again, almost half (43%) the instances of “protecting the lawful rights and interests of” con- tained in the 24,645 discussion threads are accounted for by clients/litigants [dangshiren 当事人 or weituoren 委托人], oneself [ziji 自己 or zishen 自身], lawyers [lüshi 律师], and defendants [beigaoren 被告人, which refers over- whelmingly to criminal defendants]. In 2009, less than a year after the publication of Fu and Cullen’s (2008) clas- sic statement on weiquan lawyers, I conducted a national survey of lawyers.
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Using a list of over 17,000 email addresses, I used SurveyMonkey.com to admin- ister the survey and obtained a response rate of at least 17 percent. A more precise response rate is impossible to ascertain, given several unknowns about the list, including the number of bad email addresses and the number of indi- viduals with multiple email addresses. Although lawyers were the primary tar- get of this survey, nonlawyers also participated. The 1,286 practicing lawyers in the sample I analyze here were distributed across every province and 194 iden- tifiable cities. The sample closely mirrors the true population of lawyers in terms of geographical distribution (correlated at R = .92) and membership in the Chinese Communist Party (CCP; 27% in both the sample and the true pop- ulation) but modestly underrepresents women (11% compared with 16% in the true population).4 Because my understanding of the meaning of weiquan was at odds with how the word was being depicted in the emerging English-language literature on the topic, I designed two questions for the purpose of assessing how lawyers themselves understood the word: (1) “Do you consider yourself a weiquan law- yer [Nin shifou renwei ziji shi yi ming weiquan lüshi 您是否认为自己是一名 维权律师] (yes or no)?” (2) “What do you think are the defining characteris- tics of weiquan lawyers [Nin juede weiquan lüshi de biaozhixing tezheng you na xie 您觉得维权律师的标志性特征有哪些] (open-ended response)?” In 2015, using Qualtrics.com, I invited the entire Wave 1 sample of practicing lawyers to participate in a follow-up survey. To the best of my knowledge, this is the first longitudinal survey of Chinese lawyers ever attempted. Taking into account email delivery failures, the Wave 2 response rate (partially and fully completed questionnaires) was 16 percent. As with Wave 1, I suspect that the true number of bad email addresses is far higher than the number of delivery failure notifications I received, meaning the effective response rate was surely higher than 16 percent. The 174 respondents who partially or fully completely the Wave 2 questionnaire were distributed across 24 provinces and 65 identifi- able cities. Once again, I designed two questions on weiquan lawyers: (1) Do you con- sider yourself a “weiquan lawyer” (same Chinese wording as above; yes or no)? (2) Those who answered “yes” were asked, “Why do you consider yourself a ‘rights protection lawyer’ [Nin weishenme renwei ziji shi yi ming weiquan lüshi 您为什么认为自己是一名维权律师]?” Those who answered “no” were asked, “What do you think is the main defining characteristic of weiquan law- yers [Nin juede weiquan lüshi zhuyao de tezheng shi na yige 您觉得维权律师
4 For more methodological details, see Michelson and Liu (2010).
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最主要的特征是哪一个]?” Closed-ended responses were as follows: (1) pro- tect the rights and interests of clients as well as possible [Jinli baohu suoyou dangshiren de hefa quanyi 尽力保护所有当事人的合法权益]; (2) accept politically sensitive cases [Jieshou zhengzhi minganxing anjian 接受政治敏感 性案件]; (3) challenge the interests of government agencies [Tiaozhan zhengfu jigou liyi 挑战政府机构利益]; (4) represent workers in labor disputes [Zai laodong zhengyi anjian zhong daili laogong 在劳动争议案件中代理劳工]; (5) represent homeowners in housing or land disputes [Zai fangwu huo tudi zhengyi zhong daili chanquan suoyou ren 在房屋或土地争议中代理产权所 有人]; (6) represent villagers in land requisitioning disputes [Zai zhengdi zhengyi zhong daili cunmin 在征地争议中代理村民]; (7) represent consum- ers in consumer disputes [Zai xiaofei weiquan anjian ahong daili xiaofeizhe 在 消费维权案件中代理消费者]; (8) represent citizens in pollution cases [Zai huanjing wuran anjian zhong daili gongmin 在环境污染案件中代理公民]; (9) represent citizens in other administrative litigation [Zai qita xingzheng susong zhong daili gongmin 在其他行政诉讼中代理公民]; (10) dare to de- fend the law to the death vis-à-vis the police, procuracy, and courts [Gan yu zai ban’an zhong yu gongjianfa “sike” falü 敢于在办案过程中与公检法机 关“死磕”法律]; and (11) other (please specify) [Qita (qing zhuming) 其他 （请注明）].5 Of the 949 practicing lawyers who answered the first question in Wave 1, half (50%) self-identified as weiquan lawyers. If my sample is representative of Chinese lawyers, this large proportion implies that in 2009 China had about 80,000 self-identified weiquan lawyers.6 Meanwhile, existing estimates of the number of weiquan lawyers devoted to human rights work in the early 2010s range from 74 (Givens 2014, 742) to about 200 or, at most, “one in a thousand licensed lawyers in China” (Pils 2015, 1). Even conceding that “human rights lawyers” account for only a portion of weiquan lawyers and the possibility of some (unknown) sampling bias, such a massive population of self-identified weiquan lawyers makes sense only if indigenous meanings profoundly diverge from its dominant English-language representations. The proportion of self-identified weiquan lawyers was lower than average in Beijing (42%, n = 114), Shanghai (36%, n = 39), Guangdong (38%, n = 118), and Chongqing (38%, n = 16) and higher than average in Hebei (68%, n = 34), Inner Mongolia (67%, n = 9), Heilongjiang (87%, n = 15), Jiangsu (56%, n = 97), Anhui (57%, n = 14), Jiangxi (60%, n = 20), Hunan (69%, n = 36), Sichuan (55%, n = 29),
5 The order in which these choices appeared was randomized to prevent order-effects bias. 6 The official 2009 population of lawyers was 173,327, of whom 155,457 were full-time practitio- ners (National Bureau of Statistics of China 2010, 886).
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7 N refers to the total number of respondents who answered the question, not to the subset who self-identified as weiquan lawyers.
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与公权力对抗激烈, gan yu kangzheng 敢于抗争, gan yu duikang 敢于 对抗, yu gongchandang zhengfu duikang 与共产党政府对抗]. Some even defined weiquan lawyering in terms of democracy and political liberalism, us- ing the expressions “uphold values of democracy and freedom, exclusively handle sensitive cases [chongshang minzhu ziyou jiazhiguan, zhuanmen daili min’gan anjian 崇尚民主自由价值观念，专门代理敏感案件]” and “free- dom and democracy, a spirit of sacrifice [ziyou minzhu, xisheng jingshen 自由 民主、牺牲精神].” On the whole, however, such responses were relatively few in number. Sur- vey respondents were far more likely to invoke the official vocabulary of the party-state. Precisely as is to be expected from my discussion above of the weiquan language embedded in the Provisional Regulations on Lawyers and the Lawyers Law that replaced it, lawyers who participated in the survey tend- ed to understand weiquan and lawyering as entirely redundant. Weiquan, in the minds of a large share of survey respondents, was synonymous with law- yering insofar as they understood it simply to mean the work of protecting the lawful rights and interests of their clients, as required by the regulations and laws regulating their professional practice. In contrast to the received wisdom outside China, most lawyers in the sample reported nothing “distinctive” or “radical” about weiquan practice. On the contrary, to a sizable share of practic- ing lawyers in the sample, weiquan lawyering referred to the quotidian work of zealously representing clients. Indeed, several lawyers stated that weiquan law- yers had no defining characteristics because they were merely carrying out the core professional responsibility common to all lawyers, namely, protecting their clients’ lawful rights and interests: – “no defining characteristics, weiquan is the job of lawyers [meiyou shenme biaozhixing tezheng, lüshi de zhiye jiushi weiquan 没有什么标志性特征， 律师的职业就是维权]”; – “from one perspective, lawyers are exactly weiquan [mou yi jiaodu lüshi jiushi weiquan de 某一角度律师就是维权的]”; – “There’s nothing special about the word weiquan; I don’t think there’s any- thing in particular to explain [Weiquan er zi bing meiyou shenme teshu de, wo bu renwei you shenme xuyao zhuanmen jieshi de 维权二字并没有什么特 殊的，我不认为有什么需要专门解释的]”; and – “Every lawyer is a weiquan lawyer, and therefore they have no defining char- acteristics [Mei ge lüshi dou shi weiquan lüshi, suoyi meiyou biaozhixing tezheng 每个律师都是维权律师，所以没有标志性特征].” Law [falü 法律], protect [weihu 维护], justice [zhengyi 正义], client [dangshiren 当事人], interests [quanyi 权益 or liyi 利益], lawful [hefa 合法],
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8 Because Chinese words are not segmented by white space, I segmented all the open-ended text provided by respondents using the Stanford Word Segmenter (according to the Penn Chinese Treebank standard) (Chang, Tseng, and Galen, 2018). With the exception of the words “weiquan” and “lawyer,” I include every word respondents supplied, even words such as “is [shi 是],” “and [he 和, yu 与, bing 并, ji 及],” “or [huo 或],” and “have [you 有],” as well as prepositions [e.g., de 的, zhi 之, yi 以, wei 为, zai 在, dui 对, yu 于]. The words “weak” and “group,” which appear separately in my list of words, are usually joined to form the term “dis- advantaged group [ruoshi quanti 弱势群体].” Only rarely is “group” used in the context of “mass cases [quntixing anjian 群体性案件].” 9 Numbers refer to ranking of frequency of use.
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58% politically neutral only 27%
4% politically contentious only 12%
27% neither 55%
11% both 7%
0% 10% 20% 30% 40% 50% 60% self-identi ed weiquan lawyer other
Figure 1 Vocabulary used in descriptions of “Weiquan Lawyers,” 2009 Note: n = 492 practicing lawyers who provided open-ended descriptions of the defining characteristics of “weiquan lawyers.” The percentages for each type of respondent do not always sum to 100% owing to rounding errors. Group differences are statistically significant: χ2 = 61; p < .001.
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42% protect clients' lawful rights and interests 24% 25% die-hard use of law against gongjianfa 25% 13% represent workers in labor disputes 0% 12% challenge state interests 27% 4% represent villagers in land requisitioning cases 0% 4% accept politically sensitive cases 19% 0% represent pollution victims 3% 0% represent consumers 2% 0% 10% 20% 30% 40% 50% self -identif ied weiquan lawyer other
Figure 2 Single most important characteristic of “Weiquan Lawyers,” 2015 Note: n = 115 practicing lawyers. Gongjianfa 公检法 refers to the police, procuracy, and courts. Group differences are statistically significant: χ2 = 25; p < .001.
respondents who did not self-identify as weiquan lawyers (12%) was three times that of respondents who did self-identify as weiquan lawyers (4%). The foregoing empirical patterns persist in the 2015 Wave 2 survey data. Once again, half (48%) the 126 respondents who answered the first question self-identified as weiquan lawyers. Most respondents (74%) who self-identified as weiquan lawyers in Wave 1 did so again in Wave 2, which means that some respondents (26%) who did not self-identify as weiquan lawyers in Wave 1 had taken on this identity by 2015. Consistent with their responses in 2009, the characteristic of “weiquan law- yers” that respondents in 2015 reported to be most important was “to protect the rights and interests of clients as well as possible” (32%), followed by “dare to defend the law to the death [sike falü 死磕法律] vis-à-vis the police, procuracy, and courts” (25%)10 and “challenged the interests of government agencies” (20%). Only 12 percent chose “accepted politically sensitive cases” as the most important characteristic. In Wave 2, as in Wave 1, respondents who self-identified as weiquan lawyers were far more likely than those who did not identify as such to understand the term in politically neutral terms. As shown in Figure 2, the response category
10 On so-called diehard lawyers [sike lüshi 死磕律师], see Fu (2018); Liu and Halliday (2016).
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protect clients' lawful rights and interests 93% represent workers in labor disputes 75% die-hard use of law against gongjianfa 60% challenge state interests 57% represent citizens in administrative litigation 55% represent owners/users in property/land disputes 55% represent consumers 48% represent villagers in land requisitioning cases 35% accept politically sensitive cases 23% represent pollution victims 7% other 3%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Figure 3 All applicable characteristics of “Weiquan Lawyers,” 2015 Note: n = 60 practicing lawyers who self-identified as “weiquan lawyers.” Gongji- anfa 公检法 refers to the police, procuracy, and courts.
“to protect the rights and interests of clients as well as possible” was chosen almost twice as often by self-identified weiquan lawyers (42%) as by respon- dents who did not self-identify as weiquan lawyers (24%). Meanwhile, the probability of choosing “accepted politically sensitive cases” was far lower by self-identified weiquan lawyers (4%) than by respondents who did not self-identify as weiquan lawyers (19%). Similarly, the probability of choosing “challenged the interests of government agencies” was far lower among self- identified weiquan lawyers (12%) than among respondents who did not self- identify as weiquan lawyers (27%). The probability of choosing “dare to defend the law to the death vis-à-vis the police, procuracy, and courts” was identical among respondents who did and did not self-identify as weiquan lawyers (25% in both groups). All respondents in Wave 2 were asked to pick the single-most-important de- fining characteristic of weiquan lawyers. Respondents who self-identified as weiquan lawyers were also asked separately to select every defining character- istic on the list that they believed was applicable. The vast majority of self- identified weiquan lawyers chose more than one defining characteristic. In- deed, on average they chose five from the list of eleven. As shown in Figure 3, self-identified weiquan lawyers almost universally chose “to protect the rights and interests of clients as well as possible” (93%). Their understanding of the word clearly stemmed from and dovetailed with official party-state rights dis- course. Following this conspicuously dominant answer were “represented workers in labor disputes” (75%), “dare to defend the law to the death vis-à-vis the police, procuracy, and courts” (60%), “challenged the interests of govern- ment agencies” (57%), “represented homeowners owners/users in housing or
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4 Conclusions
Weiquan is projected in different ways to different audiences. On the one hand, to English-language audiences outside China, weiquan is represented as the use of legal tools and tactics to engage in politically contentious—and even anti-regime—activism. On the other hand, to domestic Chinese audiences, weiquan is represented as the politically legitimate mobilization of officially sanctioned legal resources to protect rights granted by the party-state. Even if there is near-complete consensus among the former audience, the dissonant voices of Chinese lawyers reveal the plural meanings of weiquan among the latter audience. Within the cacophonous chorus of lawyers’ singing about wei- quan, however, those singing the lyrics of the party-state rise above the rest and are the most audible. In the English-language literature, a conceptual schism divides weiquan dis- course and the party-state’s officially sanctioned rights discourse. They are por- trayed as if they are two different things. In this article, I have tried to dissolve this artificial divide by showing that they are one and the same. I have shown that the party-state’s officially sanctioned rights discourse is the seedbed from which the word weiquan sprouted and bloomed, and that such discourse, more than anything else, shaped understandings of the word within China through- out the 2000s—albeit not monolithically—among both the general public and lawyers. Over the course of China’s four decades of legal construction, officially sanctioned weiquan discourse was and remains ubiquitous. Fu’s assertion that “[w]eiquan used to be a generic conception that cap- tured the general protection of a wide range of legal rights” implies that it is no longer understood in such generic, mundane terms—that its meaning has
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Weiquan means “defending rights,” and that was always the foundation: we were defending the civil rights of ordinary people under the law. We took the party’s legal reforms of the 1980s at face value, seeking to address through the courts such issues as human rights, environmental problems, and the basic freedoms of speech and religion in the press. Political re- form had long stalled, economic changes seemed unstoppable, and the government’s brutal response to Tiananmen Square had made clear the limits and dangers of popular protest. The Weiquan movement was an attempt to find another way of resisting China’s repressive regime. We had no leaders or central organization—the movement was simply a dis- parate collection of dedicated activists, lawyers, scholars, and other who were committed to using legal means, both domestic and international, as a tool to force the Communist Party to respect the law, both the stat- utes the party itself had written and those it had agreed to in interna- tional forums. Chen 2015, 131
Teng Biao’s definition of weiquan is similar (Pils 2015, 49). My hope is that fu- ture research illuminates the question of the point at which and under what circumstances lawyers at the radical end of Fu and Cullen’s (2008) typology of weiquan lawyers started characterizing themselves and their work as weiquan. The evidence presented in this article shows that, at least as of 2009, and even as of 2015, the appropriation and redefinition of the word weiquan—from a generic to politically confrontational meaning—within the Chinese legal pro- fession was far from complete. Although some lawyers came to embrace the redefinition of weiquan, the dominant indigenous meaning seems to have largely stuck. If the essential meaning of weiquan lawyering is human rights protection and other forms of activism, many, if not most, Chinese lawyers did not get the memo and remained in the dark about its redefinition. Nothing argued in this article diminishes the poignancy of existing ac- counts of the plight of China’s activist lawyers, the profound challenges that they confront in their professional and personal lives, and the strength of their
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Acknowledgements
An earlier version of this article was presented at the Conference on China’s Legal Construction Program at 40 Years: Towards an Autonomous Legal Sys- tem? University of Michigan Law School and Lieberthal Rogel Center for Chi- nese Studies, University of Michigan, Ann Arbor, MI, October 11–13, 2019. The surveys on which part of this research relies were conducted collaboratively with Sida Liu. I am grateful to Xin He for his helpful comments, and to Eliza- beth Astrup and Joseph Fuschetto for their assistance. All remaining flaws are my own.
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