Earlier this year, Beijing Press and Publication determined that the most popular book of 1999 in China, “Shanghai Baby,” was pornographic and immoral in nature and proceeded to ban the book throughout the country. Police publicly raided several book fairs in the capital and confiscated copies of “Shanghai Baby.” The publishing house of the book was suspended for three months and the publisher of the book was replaced. The twenty-six-year old feminist author, Wei Hui, was under tremendous pressure as the Party’s propaganda authority, the People’s Daily, harshly ridiculed and criticized the book and its author.
The discomfort many Chinese have toward the book comes naturally considering the culture and history of the nation. The audacity of the author, as well as the content of the book itself, is unprecedented in modern China where sexual escapades and moral depravities are concealed rather than analyzed. Many attacked Wei Hui for using her body, instead of a pen, to write the book. The People’s Daily further attacked Wei Hui’s professional skill by claiming that “these pretty women writers, who have split from the solid foundation of Chinese creative writing and the rich historic and cultural background of Chinese literature, who know a smattering of Marguerite Duras and Henry Miller and dare jump onto the stage to do a striptease, will eventually feel ashamed of themselves.”
The purpose of this article is not to assess the wisdom of censorship toward “Shanghai Baby,” nor is it to make a literary review on Wei Hui’s book. It is not yet clear whether the banning of “Shanghai Baby” will aid the Bureau’s intention of cleansing the society and curbing the increase in prostitution and drug abuse in China. In the meantime, there is no indication that Wei Hui’s intention to write the book was to popularize or advocate the life style she depicted in the book. There is no denial of her writing talent and her knowledge of feminism and western literature. However, regardless of the merits of the book or its banning, the controversy reflects on some larger issues about China, i.e., its immature legal system and intolerance of cultural diversity.
Although there are legislative, adjudicative and executive branches within the legal system, the executive branch has always overshadowed the other two in China. The executive branch hardly sees the benefits of checks and balances and finds it convenient to have substantial influence in legislative and adjudicative proceedings. Most citizens normally do not oppose this simple structure because it provides finality on matters through a single authority. With a single government branch deciding on every aspect of a matter, problems can seemingly be resolved swiftly and decisively, as we can see in the sudden government action on “Shanghai Baby.” However, in practice, the government does not have the human resources and time to examine an issue thoroughly. Bureaucratic decisions are usually made by a small number of staff or even a single official who does not have the necessary legal expertise. As a result, swift government actions can be arbitrary and inconsistent. Many government decisions are based on moral reflex rather than legal reasoning and are often interlaced with personal bias and political considerations. Social issues, especially those touching upon delicate legal questions, deserve careful deliberations. Otherwise, both the nation and its people will lose the opportunity of moving toward a rule-of-law society.
Clear distinctions among the legislative, adjudicative and executive branches is inevitable as China progresses into a new century. The Chinese government is gradually realizing such necessity due to increasing transnational economic activities and occasional legal competitive disadvantage on China’s side. Trade and financial transactions highlight how complex a legal problem can be. To simplify legal process for the time being will only lead to eventual confusion and loss in the future. China’s leadership is learning through experiences that the intangible legal infrastructure is as important as any physical infrastructure, such as a national highway network, and can have long-term significance beyond the nation’s economic prosperity.
To recognize the necessity of legal checks and balances is only the first step in improving the legal system in China, for building a complete legal structure is a far more daunting challenge. China has traditionally been anemic in legislative and adjudicative prowess. The executive dominance leaves a hostile environment for nurturing great legislative and adjudicative minds. Many legislators and judges have never had any formal legal training and their appointments are more of a political convenience than an indication of technical qualification. There is no doubt, and the scientific-minded Chinese are realizing, that law is as technical as any scientific or engineering discipline. On the legislative side, it requires open educated minds to hear different views and have a full and visionary understanding of all aspects of a single issue. It demands logical articulation and determined advocacy to explain one’s views. It calls for great sophistication and great draftsmanship to use appropriate and precise language to write consistent and implementable laws. In the case of “Shanghai Baby,” there is general language in the Constitution and regulations that protects freedom of speech, prohibits pornography and protects artistic expressions respectively. However, because these provisions are too vague, they cannot resolve the inconsistencies among themselves. This leaves ample space for the executive branch to maneuver and in practice provides little legal guidance or restriction.
Like legislation, adjudication is a complex and delicate process. A judge should be independent not only from his/her personal bias but also from political influences. In courts, law should be the absolute and sole authority and every single decision should be logically derived from legal codes. Unlike its American counterpart, China’s court system does not emphasize the importance of reasoned legal opinions. Many court decisions regarding important social issues are made internally and are rarely accompanied with opinions where judges elaborate on the reasoning behind their decisions. Without accountability, judges’ decisions can be the result of many possible hidden factors, including hasty determination, personal moral bias, political pressure, etc. To involved parties, an unsubstantiated court ruling looks arbitrary and provides little ground for appeal. In the long run, people discount the relevance of courts in the legal system and resort much less to the adjudicative process. This is reflected in the “Shanghai Baby” controversy. Wei Hui never brought any challenge to court, but this was not because the governmental ban did not concern her. On the contrary, given the financial losses and possible career harms, it would have been extraordinary not to sue had it happened in a legally mature society. Because of consistent court deference to the government in speech litigation and a biased press coverage, including that of the powerful People’s Daily, it is understandable that Wei Hui retreated instead of staging a legal challenge.
Apart from its legal implications, the ban of “Shanghai Baby” has cultural significance in that the government’s intolerance of cultural diversity stifles intellectual and creative growth. From today’s global experience, the strength of a nation is rarely limited to one-dimensional economic abundance. In the information age, the value of ideas and expressions outweighs that of hard currency. Free flow of diversified information and interactions among different ideas are priceless resources for a nation. During the past century, there was an explosion of modern ideas thanks to the breakdown of many mental barriers imposed by tradition, custom or moral inhibition. Many revolutionary ideas, such as cubism, relativity, feminism and civil rights, faced tremendous oppositions in their early stages. Fortunately, despite adversities, there were always enthusiastic and resolute advocates and eventually these ideas survived through competition or through legal channels. In all these cases, either government was not involved or government was only one of the many social agents influencing or deciding the outcomes.
Governmental interventions in cultural affairs are normally harmful. A government, like all other entities, has its unique fortes, such as forming policies, regulating economy and maintaining national defense. But government is inherently incapable of running business and it is usually not at the best position to appreciate a new cultural phenomenon. Because of this disability, government prefers the status quo in cultural development so as to minimize any risk or trouble involved. This is completely incompatible with the rapid cultural innovations and explorations in today’s world. Before its ban, “Shanghai Baby” caused controversies among many Chinese people. Heated arguments on both sides sometimes generated great in-depth discussions on literature, human nature and social problems. Regardless of which side would have eventually prevailed, such discussions could have been a first step toward cultural diversity and maturity in China.
In the final analysis, building a better legal system is not only imperative for China’s further economic expansion but also indispensable for China’s cultural prosperity. When first facing a radically new cultural phenomenon, even western governments are not immune from the urge to intervene. However, a legal system equipped with procedural checks and balances allows opposing opinions to be heard and judged. The outcome is not only of more accountability but also of a more accurate and applicable standard for later cases. The U.S. Customs Office initially banned one of the 20th Century’s greatest novels, Ulysses, by the Irish author, James Joyce. A Federal court later heard arguments from both sides and made the distinction between “dirty words” and “obscenity.” The court eventually ruled that the use of “dirty words” in “a sincere and honest book” did not make the book “dirty.” This decision ignited further debates on both sides throughout the U.S. Today, after years of debate and litigation, the standard used in obscenity case in U.S. is much more accurate and widely accepted. Laws against obscenity must be limited “to works which, taken as a whole, appeal to the prurient interest in sex; which portray sexual conduct in a patently offensive way; and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” It is further held that obscenity should be determined by applying “contemporary community standards” rather than national standards. It is not advisable to use the same standard in the case of “Shanghai Baby” because there is much difference between the two nations’ culture and history. However, had the case gone through a similar legal process, “Shanghai Baby” could have boded well for the rule of law and cultural diversity in China’s future.
(The author is an associate at the New York office of Linklaters & Alliance. He can be reached at