Foundation for Law and International Affairs Comments on the Charity Law of the PRC (Draft)

This post introduces a set of comments on the Charity Law of the PRC (Draft) I have prepared together with the Foundation for Law and International Affairs

The comments can be accessed here:

As those who have been following the vicissitudes of China's civil society sector will know, a Draft Charity Law was submitted to the National People's Congress at the end of October, and released for public comment.

During the time I spent in Hong Kong, I was fortunate enough to have had an opportunity to more closely observe the chances as well as the hurdles Chinese civil society organizations face every day. 

Earlier, I have stated how the decision to establish Party groups in Chinese and foreign civil society organizations is a much needed move to once and for all set straight the relationship between civil society organizations, and the local leadership. Knowing and addressing the needs and demands of all stakeholders is essential to ensure a smooth management and implementation of cooperation projects. The Foreign NGOs Management Law marked a phase where foreign donor agencies and NGOs may have wanted to pause and ask themselves whether, in trying to help address the needs of Chinese society, they were speaking a language compatible with the language spoken by Chinese stakeholders.

The Charity Law (Draft) signals our ingress in a different and much brighter phase, one in which we will witness a renewed emphasis on the role charities can play in social governance. After a 10 years gestation, the Charity Law will encourage a greater transparency and accountability of foreign as well as domestic NGOs. The focus on these two fundamental values will improve the contribution of China and foreign's civil society sector to good governance. The Draft law addresses these and other themes, yet other possibilities deserve a closer consideration. 

Preventing corruption and money laundering, defining a clearer role for foreign NGOs, tapping Chinese NGOs potential to promote global good governance are some of the areas that deserve further attention. These and other areas are explored in the Foundation for Law and International Affairs comments on the Charity Law. I hope the comments will be useful to the National People's Congress, the Ministry of Civil Affairs, domestic and international donors and practitioners, as well as the academic community. 

The Foundation for Law and International Affairs is an independent, nonpartisan, nonprofit organization mandated to promote academic and public discourse at the intersection of law and international affairs. The core vision of FLIA is to promote international cooperation and public dialogue through the development of new ideas and collaboration with various academic, governmental and civil actors. The mission of FLIA is to facilitate international scholarly activities, conduct high quality, independent research and policy analysis, engage in public education and awareness-building programs, as well as amplify the voice of the rising generation. 

A heartfelt thank you goes to the China Law Translate community, for an excellent translation of the Draft Charity Law. 


A long overdue reply to Jean Christopher Mittelstaedt's criticism

This post is written in response to Jean Christopher Mittelstaedt's criticism of the paper I presented at the 2015 European China Law Studies Association Conference (here). Jean Christopher Mittelstaedt works with Stéphanie Balme at SciencesPo, in Paris. The criticism I received from him is, this far, the best and most sophisticated criticism I have ever received. I am not posting the response he sent me. Those who are interested in the question of how we should approach Chinese law may want to get in touch to explore possible ways to start a broader public conversation on this and similar points. 

Here is, however, a summary of what Christopher wrote. Among others, my paper holds that principles in Western law are equivalent to "原则" in Chinese law, and therefore "Seeking Truth from Facts" functions as a legal principle. 

Christopher's criticism takes aim at the question of what a "principle" and what a "原则" are, according to the paper. To understand a language, he writes, we have to live within it. Language posits us within a worldview, and determines our horizon. Our horizon however expands when we enter a foreign language. Whenever we acquire command of one or more foreign languages, we acquire the ability to live in between two or more different worlds, without negating the worldview our mother tongue has bestowed on us. 

The most interesting question, here, would be what happens to the speaker's worldview, what does it mean to our use of language, which semantic detours, and how many of them the speaker has to take when the general consensus prohibits the speaker or writer to use his true mother tongue but, this question relates to philosophy of language more than to anything else.

When we speak two or more languages, we find ourselves entangled in the problem of interpretation: when we translate from language A to language B, we automatically add an additional layer of interpretation to the meaning B has in the target language. This is a general problem, the critique says, evident in my  acceptance of what a "principle" is, and in my projecting the meaning of "principle" onto yuanze 原则. "Principle" does not correspond to the meaning of yuanze 原则. yuanze 原则  was born within a specific horizon of meaning, one that has to be studied and understood. The paper I wrote criticizes the brutalization of concepts in Chinese law, the separation of concepts from the contexts that give them meaning but, the same brutalization is evident in my analysis of what "Seeking Truth from Facts mean". 


This response does not put forward a defense of the paper I wrote in September. I believe that the endeavor of:

(1) isolating a word, or a concept, or anything else in Chinese law


(2) explaining the word, concept etc. in light of a meaning that originates from the context within which the interpreter operates; or a meaning the interpreter attributes to those who use the explanandum (= thing to be explained) in China

is defensible on cognitive grounds only.

While we cannot make sense of the world around us in the absence of at least one cognitive scheme, any attempt to defend the paper on cognitive grounds would amount to nothing more than a statement that:

“because the meaning I have constructed for X according to how I see the world, is the meaning of “legal principle in a Western sense” [where "Western sense is clearly another construct"] then, whenever a Chinese person encounters X he will give to X the same meaning I gave to it, or at least very similar one.”

This statement says more about the interpreter, and perhaps about the interpretive consensus within which the interpreter operates, than it does about the explanandum. If this point is accepted, then the question remains of why I wrote a paper where paragraph 2 bends back upon itself. Differently stated: why does paragraph 2 tells us a lot about how we Westerners look at principles but, it doesn't say anything about how Chinese people conceive of yuanze 原则?


After all, I have stated that one of my goals is performing what I playfully call “psychoanalyses” of the concepts and "mechanisms" I encounter. In other words, if those who make, interpret and use the law are historical beings whose goals include solving problems as these problems exist in their societies, perhaps their statements could be read à la lettre

For instance, the words in article 33 of the PRC Constitution “the State respects and preserves human rights” can be read as meaning that the state respects and protects human rights. In the absence of nothing less than a clear statement to the contrary emanating from a constitutional authority, perhaps we would not want to assume that article 33 paragraph (3) was included in the PRC Constitution with the intent to pay lip service to rights that belong to every human being. An interpretation based on either the assumption that 

(1) Chinese politicians and legislators will always and only say the contrary of what they mean, or 

(2) in theory they may truly mean what they say but, they are in practice unable to achieve their purposes because they have adopted a different set of political principles 

would be problematic.

In the paper, I explained how I am trying to 'listen' to the political/legal system impartially:

Differently from Michael Dowdle's concepts of “constitutional listening”, which itself is an adaptation of the principle of charity, impartial listening does not involve “finding the most coherent interpretation we can” for legal statements. Neither does it involve the Occamian simplicity principle. The human mind strives for explanations which are as simple and as coherent as possible, and it is therefore natural that our search for clarity, simplicity and coherence leads us to overlook interpretations that seem, to us, to lack these qualities. However, simplicity and coherence may be more an aspiration of those who try to understand Chinese ideology and law, than an objective feature of either ideology, law or both. If this is the case, then the very presupposition that the best possible explanation is the simplest or most coherent one will not enable a better understanding of the law. A seeming incoherence between two or more of the concepts or principles stated or embodied by the same piece of legislation, between law and interpretation, interpretation and enforcement or adjudication ought to be considered among the normal features of the legal system. Impartial listening takes into account the possibility that both coherence and incoherence are normal components of a legal system. Therefore:

(i) it abstains from finding any interpretation that attempts to reduce incoherence, or to simplify complexity;

(ii) it accepts that, in stating principles which may appear naive or incoherent, the law-maker, or the exegete, is stating what he believes to be the truth, using the language that he believes to be acceptable in the political-legal environment within which he operates;  
(iii) it considers naivete, excessive simplicity (or complexity), incoherence (or coherence) between concepts and principles as given, and possible symptoms of political or legal dynamics that deserve a further exploration.

It seems that the paper starts out on the right track but then, it derails as it falls back in the very same cognitive scheme it tries to avoid. Yet paragraphs 3 illustrates how “Seeking Truth from Facts” became among others a 原则 yuanze, and some of the meanings that those who use “Seeking Truth from Facts” say “Seeking Truth from Facts” has. Isn't this a contradiction I could have easily avoided? 

To give an adequate response to Christopher's criticism, an explanation of how I conceived the paper, and a disclosure of the intentions I had in mind as I set out to write the paper are necessary. 


To explain how I conceived the paper, I should try to explain how I read Chinese texts. Here, the 'how I read Chinese texts' relates not to the techniques I have learned, and to those I am trying to develop (described here, in part). The 'how I read' in the context of this post relates to my perception of the text, and what kind of cognitive processes my perception of the text triggers. 

When reading a Chinese text, or a text in an alphabetic language, persons may experience the text verbally, in the sense that upon seeing the characters 实事求是 or the words “Seek Truth from Facts” they may think in words, verbalizing the words in their mind. I do not. I experience the text in a different way. Whenever I read, I visualize each and every word in roughly 50 per cent of the page (25 per cent if the text is in Chinese) with a single glance. I do not verbalize the words in my mind but, I conceive their meaning (in some case the meanings) visually, as in the case when a person sees a road sign:

Sometimes, I conceive their meaning non-visually, and non-verbally. Sometimes, seeing Chinese characters triggers a flow of images. Sometimes, it is as if characters were moveable components, that could be rotated, shuffled, and arranged at will in the same way wooden alphabet blocks can. I see the text as if the text was not the unitary whole that it is (or it claims to be, or it seems), but a composite of various units of meaning, which are connected in many different ways:

Each unit of meaning may have been born at a different time, because of a variety of different reasons, and it may acquired one or more different meanings over time. The hypothesis that units without meaning exist in legal texts is an hypothesis I reject on very simple grounds: 

If "shishi qiushi" really contained no information, then it wouldn't have been carved on the stone placed at the East Gate of the People's University (=Renmin University of China). 

While reading and commenting on the CCP Statute at Law at the End of The Day,  upon seeing 实事求是 I had a flashback of each one of the places, each one of the texts, and each one of the practices where I saw those words, that slogan, motto, chengyu, or principle carved, painted, written, spoken or acted upon. I understood that these artifacts, places, texts, actions etc. were somehow related because, not unlike polyhedra, Chinese tifas and 原则 do have different faces (meanings). Some yuanze perhaps are "weightier" that others, and while the yuanze  can be ordered hierarchically, such an ordering is not the only possibility....


The intentions I had in mind when I wrote the paper were  many.

I wanted to give an example of how we may try to understand the information conveyed to us by all those linguistic units we do not really understand. (If we truly understood them, we would not dismiss them as Communist blabber without at least attempting to perform an analysis of what their meaning may be). 

I wanted readers to understand how, in reality, principles are neither  transcendent, nor are they unchanging truths. Principles and 原则 are man-made. They are created in a specific historical, cultural, political, and social context in response to distinct needs,problems, or wishes. That 原则 are man-made, and that principles are man-made too, given how they derive from experience and empirical observation, does not say anything as to whether one's conception of law is consequentialist or deontological. What I found interesting about principles and  原则 is that both of them are  ordinary words, words that have transcended the sphere  of ordinary language to acquire a different kind of communicative function. 

I am trying to work outside of all the approaches, and techniques of China studies, with the goal to unveil the cognitive frameworks I have been using for the past ten or twelve years as a result of being (among many other things) a "China scholar", and possibly understand where they work, and where they don't. Trying to step out these cognitive frameworks is possible only if one becomes aware of them first. Again, one can become aware of these cognitive frameworks by listening nonjudgmentally and impartially to what the field says.  

Last, but not least, I wanted to stimulate a debate or at least a discussion on whether our current approaches are suited to our goals. As I have explained on at least three different occasions, and in different European cities, I felt that after spending twelve years working mostly on criminal justice, I was hitting a wall that limited my comprehension of what Chinese law is. This wall was a wall made by those ideas,  approaches and techniques that are more or less taken for granted, and therefore seldom interrogated. 

One of my goals is understanding what "X" means and how it works, where X may be any concept or institution in China's legal system. If research is collaborative, then generating some debate at least was essential to achieving this goal. Because of this reason, I deliberately placed a few fallacies, and elements  of internal incoherence in the draft version of the paper. Among others, I took the provocative moves of:

a) stating that a semantic equivalence between "principle" and "yuanze" exists, without performing a semantic or etymological analysis of  "yuanze". In fact, I wrote what "Seeking Truth from Facts" means, according to what some of those who use "Seeking Truth from Facts" say it means but, I never said what "yuanze" means, according to what those who write or talk about "yuanze" say it means. 

b) explaining what a principle means to "Westerners" by appealing to authority. In so doing, I projected an alleged and perhaps non-existent "Western view" of what a legal principle is on China, while    at the same time decrying the use of Western standards to look at Chinese law. 

c) suggesting that principles are at the same time eternal unchanging truths and man-made, interpretive entities that do change over time. 


Ministry of Civil Affairs Guiding Opinion on Stregthening and Improving the Work of Education and Training of Civil Society Organizations.

Ministry of Civil Affairs Guiding Opinion on Stregthening and Improving the Work of Education and Training of Civil Society Organizations.

To Civil Affairs Bureaus (Offices) of all Provinces, Autonomous Regions; Civil Affairs Bureaus of all provincial-level cities, the Civil Affair Bureau of the Xinjiang Production and Construction Corps:

Carrying out training and education of civil society organizations is an important means to build high quality (suzhi) personnel of civil society organizations, and the foundation of guiding (yindao) the healthy development of civil society organizations. In recent years, Civil Affairs Departments in all provinces have highly regarded the work of educating and training civil society organizations, the scope of training has gradually broadened; funding has increased year after year; the results of traning have constantly improved, effectively promoting the modernization of civil society organizations' governance system and governance capacity. 

However, teaching and training of civil society organizations still has problems such as obsolete teaching materials, a weak teacher corps; univocal didactic methods which are not sufficiently connected to the management of civil society organizations. Education and training work awaits systematization, regularization and professionalization. The following guiding opinion is enacted to implement the spirit of the 18th Party Congress, and of its Second, Third and Fourth Plenary Meetings, further strengthen and improve civil society organizations' education and training, increase the coverage and impact of education and training work. 

1. Overall requirements of strengthening and improving civil society organizations' education and training.

The guiding thought of strengthening and improving civil society organizations' education and training is: holding high the great banner of Socialism with Chinese Characteristicts, taking Deng Xiaoping Theory, the Important Thought of the “Three Represents” and the Scientific Outlook on Development as a guide; thoroughly implement the spirit of the important speeches of General Secretary Xi Jinping, closely focus on the topic of promoting the modernization of National governance systems and governance capacity. Closely focus on the objective of constructing a modern civil society system. Emphasize the guidance of education, raise capacity, bring into full play Unity. Focus on the regularization of infrastructural systems combined with the innovation of mechanisms, to accelerate the formation of a new patter of education and training of Civil Society Organizations with Chinese Characteristics. 

Strengthening and improving civil society organizations' education and training must uphold the following principles: 

(1) Uphold serving the overall situation. Give full play to the guiding function of education and training, promote the healthy development of civil society organizations.

(2) Uphold division by levels and the classification in categories. Organize the implementation level -by-level, giving prominence to [civil society organizations] driven by demand, take improving capacity as the main line, according to the characteristics of the category of targets of education and training.

(3) Uphold reform and innovation. Link reform and innovation throughout the entire training and education process, enhance the appeal and enthusiasm of work, guarantee quality and effectiveness. 

2. Further specify demand-driven education and training goals.

Move from the most direct, practical and urgent needs of civil society organizations, to overall plan education and training work, strive to basically establish, by 2020, an energetic civil society organizations training and education system which fits the development of civil society organizations. 

On the basis of the existing education and training work, curriculum development and the construction of a teaching system have made an enthusiastic progress, the ranks of faculty have been further strengthented, the reform of didactic methods and procedures has achieved a clear success, an basic system to guaranttee education and training has been established, the capacity of civil society organizations has been further improve, and a climate of social care and support for the development of civil society organizations has been further enhanced. 

3. Accelerate the development of teaching and training curricula and materials

Optimize the curriculum. Focus on improving the capacity of social organization, increase the sense of responsibility of the staff of social organizations, their sense of integrity, sense of service, sense of innovation, and the overal planning of the curriculum. Establish a reasonable curriculum according to the characteristics and professional responsibilities of the targets of education and training, to make civil society organization understand, master and use [what they study]. 

Perfect the teaching materials system. According to the principle of scientific use, adapt to the training needs of different levels and different categories, compile comprehensive as well as specialized teaching materials that renew knowledge and raise capacity. Increase the compilation of practical and case-based teaching materials, enthusiastically develop exemplary teaching and training materials for civil society organization. Where local conditions allow, teaching materials with local characteristics can be compiled, to gradually form a diversified civil society organizations teaching materials system with a coherent content. 

4. Concentrate efforts on the education and training of teachers

Expand teaching resources. Rely on the main channels of civil administration bureaucracies to fully use the advantages of civil society organizations with broad connections and many channels. Hire Party-state leading cadres, experts and scholars and relevant personnel of civil society organizations who have a high level of policy and theory and rich experience as teachers. Establish a teachers' database to implement a sharing of teaching resources. Emphasize scouting and cultivating excellent human resourcs in the teaching and training of civil society organizations. Encourage and support the cultivation of teachers specialized in civil society organizations at civil affairs vocational institutions. 

Raise teachers' capacity. Strengthen teachers' training, encourage follow-up reasearch on major theoretical and practical problems of civil society organization, promote teaching through research, continuously raise teaching capacity. Regularly organize civil society organizations teachers' training, exchanges of teaching experiences, explorations of the regulation of teaching. Continuously raise the scientific level of education and training. An incentive mechanisms for teachers who make outstanding contributions to the work of civil society organizations' teaching and training must be established, to appropriately reward them. 

5. Push forward the reform of didactic methods.

Enrich didactic methods. Respect the professional characteristics of the staff of civil society organizations, and conduct education and training through methods attractive to civil society organizations. Encourage the use of new teaching methods as micro-lessons, and micro-classes. Emphasize practical teaching, use on-site observations and other channels to raise the capacity to solve practical problems. Carry out quality-development, strengthen team-building, raise the staff's sense of mission. Enthusiastically develop online courses, expand distance education, broaden the scope of teaching and training. 

Expand didactic methods. Integrate frontal lecturing, heuristics, participatory and case-based methods. Strengthen interactivity, raise the effectiveness of teaching. Proceed with the construction of a databases of education and training cases of civil society organizations. 

6. Establish a sound education and training work security system.

Conduct education and training according to categories. Estend the scope of education and training of newly recruited staff of civil society organizations, focus on improving civil society organizations' adaptive capacity. Develop the training of responsible personnel of civil society organizations, focusing on improving the leadership capacity of qualified leaders. Implement a training curriculum for general secretaries of civil society organizations, whereby in principle newly appointed general secretaries must participate to training and education within one year from their date of appointment. Strengthen the training and education of legal representatives of civil society organizations. Reinforce the vocational training of civil society organizations' staff, focus on improving their professional capacity. Promote the continuing education of civil society organizations' staff, draw support from the knowledge innovation engineering of national professional talents, to forge the troops of the leading talents of civil society organizations. Encourage qualified institutions to offer courses on civil society organizations, explore the establishment of professional education of varying educational levels for civil society organizations.

Expand education and training resources. Rely on civil affairs educational institutions, take advantage of the superiority of higher educational institutions and scientific research institutions and of social forces, to promote the integration of resources, develop the construction of education and training bases. Strive to obtain the support of relevant departments. Coordinate with Party Schools (Schools of Public Administration) to carry out education and training work of social organizations. Guide social forces to undertake education and training work by methods such as the purchase of their services, and explore the quality assessment of teaching.

Guarantee the funding of education and training. Funds for the education and training of civil society organizations shall be included in the budget for the management of civil society organizations. Where conditions exist, localities may include civil society organizations' education and training under the items of government purchase. Promote the charitable contributions of social forces to education and training, encourage public service education and training. Standardize financial management, austere and frugal education, improve the efficient use of capital.

7. Conscientiously organize and lead civil society organizations' education and training work.

Establish coordination mechanisms. Civil affairs departments at all levels must attach important to strengthening civil society organizations' education and training work, establish an unified education and training coordination system that practices “unified management, division of responsibilty, coordination, and is result-oriented”, and provides timely solutions to the difficulties and problems of education and training work. 

Organize implementation hierarchically. The Ministry of Civil Affairs is responsible to planning civil society organizations' education and training, compiling basic and exemplary teaching materials, establishing national-level education and training teachers' liberaries and education training bases, and it is mainly responsible for civil society organizations' education and training at the ministerial level. Local departments for civil affairs must be realistic, and focus on strengthening civil society organizations' education and training work at the local levels.

Intensify propaganda. Conscientiously sum up and promote typical experiences and successful practices in education and training work. Uninterruptedly raise the relevance and effectiveness of education and training work. Strengthen theoretical research on civil society organizations' education and training. Enthusiastically explore the regulation of civil society organizations' education and training. 

Ministry of Civil Affairs, 3 November 2015