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Reputation as Social Control in Present China: Use, Misuse, Abuse, and Bankruptcy

Published online by Cambridge University Press:  21 January 2016

Bo ZHAO
Bo ZHAO*
Affiliation:
University of Groningen, the Netherlandsb.zhao@rug.nl
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Abstract

Although reputation in general plays an effective role in social control in human communal life, this does not seem to work well in present-day China. This article discusses why “reputation as social control” malfunctions in Chinese society in view of the widespread reputation bankruptcy in various professions. Starting with China’s discredited milk industry, it analyses similar regulatory failures in the economic, judicial, academic, and political sectors, explaining the interplay between key institutions. It argues that such regulatory failures can largely be attributed to the use, misuse, and abuse of reputation as a means of social control by the Chinese Party State to maintain monopoly power in a much diversified society resulting from China’s rapid economic development and globalization. Based on the analysis of the Chinese circumstances, this article is also meant to contribute to the study of reputation as social control in general.

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Type
Articles
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Asian Journal of Comparative Law , Volume 10 , Issue 2 , December 2015, pp. 359 - 379
Copyright
© National University of Singapore, 2016 

“One’s good name determines the manner in which one perceives oneself and how one’s peers and society relate to one”

Justice BarakFootnote 1

Reputation is an important means to achieve and maintain social control, i.e., to protect social ordering, to improve mutual trust and social collaboration, and to enhance economic efficiency. This function is generally performed in two ways: either we reward people who follow desired social norms and behave in prescribed ways with good reputations and encourage others to follow such examples; or we ascribe negative reputations to those who act against such social norms and marginalize them to prevent similar misconduct in the future. Law, in particular defamation law, has a vital role to play in supporting reputation as social control with state coercion.Footnote 2

This model, however, does not work in contemporary China. This is observed in the widespread reputation bankruptcy of many professions in the country, including China’s milk companies, food producers, public officials, judges, doctors, school teachers, and university professors. Even China’s Red Cross has become a laughing stock due to recent disclosures of disgraceful behaviour and embezzlement, even while its foreign colleagues enjoy respect and honour across the world.Footnote 3 All have lost credibility and the public’s trust, and all declare openly that reputation, as an efficient means of social control in other communities, has lost its constraining force in China. On the one hand, it is apparent that having a negative reputation does not effectively prevent or restrain overt, widespread social misconduct in Chinese society today; on the other hand, having a good reputation and obtaining related social benefits does not attract and encourage enough followers to advance the public good. But while this phenomenon has escalated across China in recent years, so far China study scholars have not made a systematic study of the erosion of reputation as an effective form of social control in China today.

A review and analysis of the failure of reputation to effectively control social behaviour in China today not only reveals the chaotic realities of the country’s struggling transition to democracy and the rule of law, Footnote 4 but also showcases many of the underlying obstacles that China faces in this process, whether from a dominant government or an increasingly diverse community in a period of globalization and rapid economic growth and social change. Moreover, this article will provide defamation and privacy law scholars, and other scholars studying reputation more generally, with an important example of some of the many conditions in which reputation might work well as a form of social control, as well as some others in which it may not.

Against this backdrop, the main purpose of this article is to analyse the reasons why reputation no longer functions as an effective means of controlling social behaviour in China. It tries to explain why reputation bankruptcy is so widespread, and explores the underlying reasons behind this phenomenon, including the political, social, and ethical variables that have shaped or twisted reputation’s regulatory role. A secondary purpose is to examine how circumstances in China may contribute to the broader study of reputation as social control by approaching the issue through a different political society that Western scholars may not typically observe. In doing so, its intention is not solely to criticize or analyse how the Chinese Party State has used reputation to control social behaviour. Nevertheless, its negative influence remains a major and unavoidable reason why reputation fails to check deviant behaviour in contemporary China.Footnote 5

Section I first provides a brief account of the concept of reputation and its special role in controlling social behaviour. It also gives the author’s perspective of the related mechanisms used to control social behaviour (there is relatively little literature on this point). After this, section II analyses the widespread and escalating reputation bankruptcy in China’s different social sectors, looking at several common characteristics behind the failure of reputation to act as an effective regulatory mechanism, the key institutional players in China’s reputation networks in various social sectors, and the use, misuse, and abuse of reputation by the Chinese Party State. Section III then further explains the reasons why reputation generally fails as a method of social control at this difficult period of socio-political transformation in which the Party State continues to retain the political status quo in the face of mounting challenges from the collapse of communist ideology, the increasing diversification of social interests and moral values, and an escalating sense of distrust in contemporary China.

I. Reputation as social control in general

Reputation is the moral judgment of a person based on the facts considered relevant by a community, such as physical characteristics, personal behaviour, class, or status, and related judgments based on the shared moral standards of that community.Footnote 6 People generally see reputation from three perspectives (honour, intangible property, and human dignity), each corresponding with a different vision of society (deference society, market society, and communitarian society, respectively).Footnote 7 Reputation exists in social networks that are comprised of reputation agents and subjects.Footnote 8 Thus, while individuals clearly have reputations, different social groups, including ethnic groups or cultural groups, commercial organizations, social institutions, and even a political authority, also develop reputations within a society.

As many scholars have demonstrated, reputation is critical to personal honour,Footnote 9 dignity,Footnote 10 esteem,Footnote 11 and identity development.Footnote 12 The importance of reputation in personal life is well understood by the public in that a good reputation results in positive treatment by others, and vice versa. Reputation is critical to the development and prosperity of collective institutions. A good reputation can justify the existence of political institutions, bring greater income to commercial organizations, and support the further development of various NGOs and philanthropic organizations.

In this context, reputation can be conceived as a means of controlling social behaviour.Footnote 13 Social control is contingent on norm-breaking behaviour. It seeks to react to and contain or eradicate deviance in order to facilitate social life.Footnote 14 Reputation, as Whitfield observed, “is a way for societies to control their members”.Footnote 15 As a form of social control, reputation can protect social ordering and keep the rules of civility,Footnote 16 improve mutual trust and social collaboration,Footnote 17 and enhance economic efficiencyFootnote 18 by “control[ling] one another with our eyes,” because “the sense of being watched is one of the most powerful influences on human behavior”.Footnote 19

In essence, then, reputation is about the ways the public acknowledges honour, respect, dignity, social status, and related social interactions in human communities. It is basically performed in the following ways. First, rewarding those who follow desired social norms with good reputations encourages others to follow such norms. Good reputations lead to public recognitionFootnote 20 and further positive treatment from others. Many universities rely on this aspect of reputation when they award honorary Doctoral degrees to political leaders as a show of appreciation for their special contribution to society. Second, ascribing negative reputations to those who act against prescribed social norms can marginalize them from the community by denying them recognition, contact, trust, and further cooperation from others; it can even lead to public shaming. These negative social implications provide a compelling reason for conforming to social norms. Third, an individual or organization may cultivate a certain kind of reputation as a means of influencing others’ behaviour in order to achieve a particular set of ends. For instance, both the Mafia and dictatorships rely on repeated and unusually cruel and brutal acts as a means of preventing disobedience or warning off rivals. And finally, the opposite is also true in that the deletion of personal information can serve a similar purpose. For example, erasing a deviant’s name and activities from a public record or from history itself can eradicate his or her influence on others, thus leaving no threat to the social order.Footnote 21

According to Whitfield, reputation as social control “works in social connections and dies in social barriers”.Footnote 22 The free circulation of information in social networks is crucial to the proper assessment of reputation subjects, and requires the protection of free speech in a community. Gossip, rumours,Footnote 23 letters, traditional media, the internet,Footnote 24 government publications, court verdicts, and other forms of communication all function as ways of circulating and allowing people to make judgments about a wide array of information. Developing criteria for judging information is very complicated, and contingent on the social settings in which a particular subject is to be evaluated.

Generally speaking, reputations are assessed through both institutional and non-institutional contexts. Non-institutional forms of assessment include discussions among friends, online comment or rating systems, rumours, and gossip. Such assessments lack professional evaluators and standards of evaluation, instead relying on the rough impressions of the evaluators. Gossip offers a clear example of non-institutional reputational assessment, complete with personal biases and based on compartmentalized, albeit no less important, information.Footnote 25 In contrast, institutional forms of assessment are developed from organized judgments using coherent and objective standards established by professionals with a certain degree of authority. Assessments made by these institutions, including courts of law, arbitral institutions, professional associations, and academic institutions, among others, can have an important impact on the subject’s reputation. The impact that government reports on the quality of education, for example, may have a tremendous impact on the reputations of the schools evaluated in it.Footnote 26

Where institutional and non-institutional evaluations conflict, whether because they reflect different attitudes to the behaviour in question or because they use different standards to evaluate it, generally speaking, institutional forms remain dominant. Three reasons account for the primacy of institutions. First, non-institutional evaluations tend to be vague and confusing due to subjective standards and contradictory signals. Second, non-institutional approaches are only effective and accurate in small communities, while institutional means can reach more subjects and a wider audience. Third, while the judgments of non-institutional agents are controversial and lead to social chaos, resort to institutional judgments rendered by professional associations possessing a certain degree of authority is always a solution. Thus, to maintain control over the social order, state authorities have to monopolize certain forms of evaluation and make judgments about many kinds of social behaviour. Footnote 27

As an important form of institutional assessment, law plays a critical role in controlling reputation. Law holds special authority in ordering political societies and resolving their disputes by clearly defining categories of misconduct and providing formal procedures that can be used to reach conclusive decisions about social behaviour.Footnote 28 For example, both criminal and civil defamation laws preserve social order and tranquillity, and protect individuals from the potentially harmful results of publishing untrue information. Similarly, blasphemy laws, memory laws, and insult laws protect collective reputation and honour, while privacy laws guard an individual’s reputation from harm resulting from the unwanted disclosure of personal information and false light.Footnote 29 Moreover, the public shaming aspect of law also relies on reputation as a means of deterring deviant behaviour, particularly when a case receives close media scrutiny.

II. Reputation as social control in China

A. Milk Scandals: I Just Do Not Believe You

Reputation acts as an effective means of social control when the abovementioned elements play their own roles well and interact with each other in desired ways. Unfortunately, this happy set of circumstances does not apply to many social sectors in China. The country’s well-known milk crises provide a good entry point into the discussion of the failure of reputation as a regulatory mechanism in China. Since 2008, continuous milk scandals have destroyed the reputation of China’s milk industry and have resulted in regulations that have imposed major hurdles for foreign milk producers attempting to meet the demand for baby milk powder in the country.Footnote 30 In a sense, the 2008 milk crisis represents the beginning of the failure of reputation as a form of social control in China. Thus, an analysis of the milk crisis can help define some common elements contributing to China’s widespread reputation bankruptcy.

The issue can be reformulated into the following question: why is a bad reputation unimportant to Chinese milk producers, when a good reputation is so crucial for Western market players? The first explanation is that misbehaviour among Chinese milk producers is so widespread that it offers consumers no choice between safe and unsafe brands. Many years of predatory market practices have meant that honest producers who strictly followed professional standards have not survived, given that price was a major concern for most Chinese customers. In addition, China’s milk market is not an open one. Rather, the domestic milk industry has become increasingly regulated and protected by the Chinese government. Instead of confronting the milk crisis by encouraging milk imports to meet the domestic need or providing subsidies for poor families, mostly farmers in rural areas, the government took a series of measures to restrict imports, including increasing the import tax, implementing a much stricter check on private parcels from abroad containing baby milk powder, and even cracking down on foreign milk companies in China.Footnote 31

Reputations matter in free markets in which multiple suppliers can freely and fairly compete with each other. Under such conditions, consumers can vote with their feet as a means of punishing misconduct. In contrast, a monopoly is the worst environment for reputation to play a role in market-based regulation. In China’s dairy industry, government-guided reconstruction and consolidation has led to the entrenchment of oligopolistic power, “creating conditions for future food safety scandals and market manipulation”.Footnote 32 China’s monopolized petroleum market offers another example: these state-owned enterprises are famous for poor governance, low product quality, and widespread corruption and embezzlement, but it has never been a serious problem for the industry.Footnote 33

Second, the free circulation of information and the freedom of expression are crucial for reputation to function as a method of social control. The 2008 baby milk crisis has its roots far back in 2004 when a similar incident was reported in Fuyang, Anhui province and adjacent areas, with many infants from poor families experiencing serious malnutrition and 50 dying as a consequence of ingesting fake formula milk.Footnote 34 But related news reports were successfully censored by the company behind the scandal, which was protected by the local government. When the milk scandal returned in 2008 shortly before the Beijing Olympic Games, related media reports were heavily monitored and censored, Footnote 35 and online disclosure by parent victims was banned and even heavily punished by government authorities.Footnote 36 As the public cannot obtain accurate information about market conditions, and thus cannot properly judge the circumstances, reputation cannot effectively prevent supplier misconduct.

Third, there is a shortage of suitable and objective professional standards available to the public at the national level. Because ordinary people do not possess the professional knowledge needed to evaluate the quality of baby milk powder, only a serious crisis, such as the one that occurred in 2008, could bring the seriousness of the milk problem to the public’s attention. Moreover, the national standard established by China’s national authority after the 2008 crisis is even lower than those found in the earlier regulations from the 1980s, a point which attracted many critiques.Footnote 37 This further complicated the situation and led to further distrust of the public authority in charge. The situation became even worse as reputation became confronted with and compromised by (irrelevant) claims grounded in feelings of Chinese nationalism. During the crisis, Niu Gensheng – CEO of Meng Niu Corporation, one of the largest market players under public scrutiny at the time – pleaded for pardon on the grounds of protecting China’s national dairy industry, a strategy that works for many Chinese top entrepreneurs as well as the state authority.Footnote 38

A critical attribute of China’s milk crisis is the judiciary’s failure to regulate commercial misbehaviour. During the 2008 milk scandal, top leaders of the dairy company San Lu, the offender that was caught, were found guilty and sentenced to imprisonment. But the investigation was not conducted thoroughly in the sense that local officials and other companies engaging in similar misconduct escaped their legal responsibilities.Footnote 39 It was also believed that dairy farmers were overly blamed, as they had been “encouraged” to add chemicals to raw milk to pass protein tests.Footnote 40 Moreover, while collective litigation is not allowed in China and large awards for damages are not generally available to victims, parents who communicated with each other to discuss possible collective action were imprisoned and threatened by the state authority,Footnote 41 setting a strong example for those who might think to push hard to seek justice.

A final critical issue concerns the dubious attitudes of the Chinese state authority. Although assumed to be neutral, it sent complicated signals to the public. Local officials certainly would protect local enterprises by all means, as witnessed in San Lu’s first corporate reputation crisis, in order to secure local revenue and to protect the region’s reputation as well as their own future promotion. The Chinese central government certainly is willing to discipline misconduct if it will have a negative impact on China’s international reputation. But somehow, at a certain point, it will equally act to stop such reputational harm through harsh means, including tight censorship and the suppression of victims. There is no coherent pattern in the state’s reaction to this kind of reputational crisis, so that market players have a wide space to play within. In this context, political reputation may be hijacked by public officials and interest groups at both local and national levels.Footnote 42

To summarize, the lack of an open market with free choice for consumers, a strong legal system capable of aligning offenders with prescribed norms, clear and proper professional standards, and protections for the freedom of expression, are the major underlying reasons for the failure of reputation as a form of social control in the case of China’s milk industry. The consequence is rather self-evident: the total reputation bankruptcy of China’s milk industry has swept away the last bit of trust left in domestic brands and forced capable consumers to opt for foreign products. The same has happened in other social sectors in similar patterns, although to different degrees. Below a discussion of other social sectors will further showcase how reputation’s role as a form of social control has been destroyed or distorted.

B. Reputation Bankruptcy in Other Social Sectors: More Distrust

Compared with milk producers, the medical services industry is generally less distrusted. Unlike the milk crisis, the soured patient-doctor relationship can be more openly discussed and is not politically sensitive, which has helped patients make accurate judgments about the state of the industry and prevented the kind of blind distrust seen in China’s milk industry. Additionally, there is little competition between foreign and Chinese healthcare providers, as very few Chinese can afford overseas treatment and foreign providers rarely operate in the domestic market.Footnote 43 Furthermore, traditional Chinese society accords doctors distinguished positions on account of the important services they are expected to provide and the higher moral standards that are applicable to these “angels in white”.Footnote 44

Tradition still counts in present-day China. However, the pursuit of economic interests in the country’s newly marketized medical services industry has largely diluted the self-esteem and self-discipline of the profession. Bribery and malpractice are now endemic in the medical profession, as are poor attitudes and a lack of sympathy for patients.Footnote 45 Moreover, many Chinese patients do not have an effective means of holding doctors to account when disputes about medical treatment do arise. As Wang Jin points out, China lacks a functioning legal mechanism for patients to sort out such controversies.Footnote 46 Without an institutional mechanism for resolving these disputes, people have been left to form their own judgments about the system. For the most part, the public has chosen to distrust now rather than become victims in the future, but there are also many instances where healthcare professionals have been attacked or even killed by patients or family members who felt that they or their loved ones had been mistreated.

School teachers and university professors, who maintain even higher levels of respect in society, have also fallen into disrepute in recent years. The high levels of decency and honour that the Chinese community has traditionally conferred on educators have been largely watered down by terrible acts of misbehaviour that have been reported across the country.Footnote 47 Even professors from top Chinese universities and research institutes have come under serious criticism for trying to justify misguided public policiesFootnote 48 or poorly-formed opinions that go against common sense.Footnote 49

Widespread corruption in these professions makes it rather difficult to handle such misconduct from within.Footnote 50 Because of tight control by the Party State, it is the Party’s superior leaders, such as party secretaries, who decide on the promotion of doctors, school teachers, and university professors. In contrast, in Western democracies these professions compete in a fair market, making reputation critical for professional development. But when China’s best educational and medical resources are under the control of the Party State, a bad reputation before the public does not matter that much. What counts is one’s reputation or impression among superior leaders.

Concern about reputation has also failed to control China’s political class. In Western democracies, reputation is a key concern for holding political office. But this constraint is largely absent in China’s one party state. The fact that Chinese officials generally don’t have good reputationsFootnote 51 is, on the whole, unimportant, as decisions about appointments and promotions are made by superior officials rather than the public at large. Even cases of serious misconduct do not necessarily stop promotion;Footnote 52 only when conduct causes great dishonour or proves a major threat to the Party’s legitimacy will an official be removed.Footnote 53 This is to say that, as in other social classes, reputation among party ranks rather than with the public provides the final say on political promotion in China.

Public officials have traditionally held a particularly high social status within Chinese society, which was considered inviolable by ordinary people.Footnote 54 This has not changed much in present-day China. Criticism of government policy and officials’ misconduct is still seen as a serious challenge to authority rather than a benevolent suggestion made for the public good, and may therefore be suppressed. In recent years, public officials have also increasingly resorted to defamation and privacy law to defend their “reputations” against criticism by journalists and online publications. These laws are plaintiff-friendly, difficult for defendants (usually journalists and other authors) to prove their innocence, and give judges wide-ranging discretion.Footnote 55 Defamation law therefore plays an important role in intimidating and silencing unwanted disclosures of information about public officials,Footnote 56 even as commentators warn against its use as a “weapon” to suppress such criticism.Footnote 57

C. Key Institutional Players

The judicial system has also lost the public’s trust. As a class, Chinese judges have been discredited by a number of suspicious rulings in many influential cases.Footnote 58 These actions have tarnished the reputation of the judicial systemFootnote 59 and resulted in some judges losing their lives at the hands of those who sought revenge against their “unjust” decisions.Footnote 60 As in the other cases discussed here, the judiciary is rife with endemic corruption that has ruined many judges’ reputations.Footnote 61 Under these circumstances, the judiciary has failed to serve its role as the community’s final safeguard of social justice and moral principles, clearly sending the message that conduct that goes against the public interest may well go uncaught and unpunished by the law.

It is the failure of China’s judicial system that best explains the systemic collapse of reputation as social control within Chinese society. During the milk scandals and food crises, the judiciary refused to carry out thorough investigations that would clarify legal responsibilities, provide victims appropriate remedies, and punish responsible offenders. As a result, it failed to establish a clear deterrent for future violations. The country’s escalating environmental crises exhibit the same kinds of patterns. Environmental regulations are vague and weakly enforced because of judicial dependence to the Party.Footnote 62 State authorities continue to protect China’s state-owned enterprises and other major corporations that contribute to local revenues when they are involved in litigation,Footnote 63 while victims remain helpless before courts controlled by party cadres.Footnote 64 When major polluters still make considerable profits despite the costs imposed by courts, there is no reason for others to comply with the law.

In sharp contrast, the Party State continues to manipulate the judiciary from the backstage.Footnote 65 In a sense, the Party is the general director of all China’s reputational dramas, having successfully excluded other institutional players from having an equal role in reputational networks. First, the Party controls most professional associations and institutions responsible for assessing professional performance and service quality. For instance, the Chinese Writers’ Association is a quasi-official organization whose chief leaders are appointed as government officials; being dependent, it cannot objectively evaluate professional performance. Ms. Wang Xuemei’s resignation from her positions as chief expert of China’s top prosecution office and vice-chairman of the Chinese Forensic Medicine Association out of despair with what she saw as the lack of scruples within her profession provides another example of the Party’s pervasive influence in professional associations.Footnote 66

Of course, the Party cannot effectively control how influential international prizes given by institutions operating outside China are awarded. However, while the Party generally welcomes prizes and awards that are seen as improving China’s collective reputation or identity with acclaim, it will take strong action to confine the influence of an honour or award when it is politically sensitive and goes against the Party’s position. The government’s very different reactions to Liu Xiaobo winning the Nobel Peace Prize and Mo Yan winning the Nobel Prize for Literature illustrate this point only too well.

Second, the Party’s well-known suppression of free speech also clearly impedes the dissemination of information critical to an objective evaluation of reputation. Although the Chinese government has improved such protections by codifying several laws promising free speech, political censorship remains prevalent.Footnote 67 Recent measures taken by President Xi’s new administration to rein in online free speech has enhanced the Party’s long tradition of tight censorship.Footnote 68 Of course, limited information only leads to biased judgments and cautious social interactions among the public, and public records cannot be corrected when there are basic constraints on the public’s freedom of speech. Indeed, the milk scandal in 2008 probably could have been prevented if the initial incident four years earlier been fully reported and investigated, and the offenders seriously punished for their wrongdoing.

Third, the Party has developed mechanisms to promote its own value systems and moral standards. Special courses designed to cultivate socialist and nationalist ideologies are still compulsory in school and university teaching. Although new generations growing up with the internet disbelieve these ideologies, they are still officially kept and are not to be challenged openly. The state continues to promote and reward people for following official values such as loyalty to the Chinese state (or the Party), hard work, and self-sacrifice.Footnote 69 These standards are often too high for most people to follow in daily life. Moreover, most party cadres’ actual conduct, including that of many leaders, rarely conforms to official values, who would rather cash in on political power whenever possible even as China devolves into a predatory state.Footnote 70 The public is clearly aware of this, which undermines the Party State’s credibility.

The Party has been relatively successful in manipulating reputation in order to stabilize its rule, despite the failures mentioned above. However, by attempting to control information, institutions, and moral standards the Party has also suppressed the essential role of reputation as a vehicle for promoting important public goods such as mutual trust, social cooperation, and economic efficiency. The Party cannot create these goods by manipulating complex social signals for their own interests – Clippinger’s metaphor of the peacock’s tail, which is such a reliable signal because it is beyond the peacock’s capacity to control, makes this point incredibly clear.Footnote 71 Nor can it change them in contexts where the goals reputation aims to promote conflict with the interests of the Chinese Party State. Nevertheless, it has not stopped the government from using, misusing, and abusing reputation as an instrument to maintain the political status quo, and to hold on to power, at all costs.

D. Use, Misuse, Abuse, and Bankruptcy

The Party is adept at propagandizing and brainwashing the masses by way of examples good and bad, real and fictional. In these cases, the Party manipulates reputation as a tool for suppression, an action that has largely undermined other social functions. Plenty of examples exist in China, including individuals like Liu Wencai and Zhou Fuchun, who were depicted as representatives of a vicious landlord class that had mercilessly exploited and suppressed farmers before 1949.Footnote 72 The Party also uses the good reputation and honour of political leaders, military martyrs, and moral models to cultivate a collectivist spirit and obedience to communist rule. By doing so, the Party has been able to use reputation as a motivating force for numerous political campaigns.

Yet the Party’s misuse of a person’s reputation has ultimately resulted in the loss of credibility over the long run. Many official accounts of China’s outstanding revolutionary patriots are now being questioned. The historian Wu Si has challenged the official account of Chen Yonggui, the illiterate Vice Premier promoted by Mao in 1973 for his moral dedication to party policy, only to be accused of posthumously defaming Chen.Footnote 73 Many Chinese netizens and historians have also grown suspicious of popular moral martyr Lei Feng, who they see as a fiction of communist political propaganda.Footnote 74 Even Mao has a posthumous reputation problem, his past political policies deserted, past political movements denied, and political allies punished after death.Footnote 75 In contrast, there are now considerable efforts within Chinese civil society to posthumously restore the reputations of those who were politically degraded and wronged.Footnote 76

The Party is also seen as abusing its power to bestow awards and titles like that of National Martyr (Lie Shi, 烈士). For example, the Shanghai government’s decision to award the honour to six innocent policemen killed by Yang JiaFootnote 77 came under severe criticism by many Chinese netizens who saw the killer as a great hero in the fight for social justice,Footnote 78 and for the fact that the awards failed to fit explicitly into one of the five prescribed nomination categories.Footnote 79 The same thing happened five years later when two dead urban management agents called Chengguan (城管), who were killed in their office by a street vendor, Xia Junfeng, who claimed he was acting in self-defence but which was not proved in court, were nominated for the title. Although the killer was executed four years later, he received great sympathy from Chinese society,Footnote 80 who believed that his death was a calculated attempt to support local authorities against a rising number of direct challenges by civil society,Footnote 81 a perception supported by the fact that the crucial witnesses for the defendant were not permitted to testify.Footnote 82 Xia’s death sentence, together with many others like his, has proven a key reason for the judiciary’s tarnished reputation.

Problematic court decisions influence social behaviour in ways that cannot be predicted in the decision-making process until it is too late. No example better illustrates this point than the traumatic death of two-year-old Wang Yue, who lay helplessly in a busy market street after she was seriously injured in a hit-and-run accident while 18 cold-hearted bystanders looked on until she was run over by a second vehicle. This incident shocked the world with its callous lack of compassion.Footnote 83 But while shocking, the bystanders should not be treated too harshly. Indeed, offering help has become rather risky and Chinese Samaritans have been treated unjustly as a result of their kind actions.

The disappearance of the Good Samaritan from Chinese society can be traced to the 2006 Peng Yu case in Nanjing. Mr. Peng is popularly believed to have helped take an old lady who fell down before him at a bus station to a hospital. However, the same lady later accused him at the local court of being responsible for her fall. The verdict against Peng marked a turning point in China’s moral decline. It has frustrated benevolent action by forcing bystanders to consider the potential risk of civil and even criminal accusations. Footnote 84 Recently, a local judicial leader tried to justify the decision in Peng Yu by suggesting that the case was in fact different from the way it was reported.Footnote 85 By that time, however, the damage to the Chinese community had already been done.

A professional institution with a good reputation can perform important governance functions. For example, David Zaring offers a detailed account of the critical role reputation plays in the US Food and Drug Administration’s success in regulating the American drug market.Footnote 86 Institutional reputation, as Zaring points out, can “incentivize a regulator to achieve their mission against outside pressure” and create a virtuous circle in which doing a good job supports a good reputation and vice versa.Footnote 87 In contrast, China’s dairy association, forensic association, and other professional institutions have all failed to create this positive feedback loop. While they should have taken the initiative to tackle public issues like the milk scandals by offering to help investigate and evaluate the situation, the Party’s manipulation of these organizations has made it difficult to develop proper professional standards and evaluation reports. No doubt, Ms. Wang Xuemei’s resignation alerts us to the extent to which their authority has been misused, abused, and bankrupted.Footnote 88

States also develop institutional reputations. Although free speech advocates do not recognize the legal protection of institutional or collective reputation,Footnote 89 concern for its reputation in the international community is often an important incentive for states to comply with international law and other recognized norms.Footnote 90 Moreover, a good international reputation can also increase public support for a government at home, and can therefore justify political rule. This has proven to be a strong motivation for the Chinese Communist Party to fight corruption. But the battle is widespread and systematic,Footnote 91 and so far has born little fruit. The revelations following Xi Jinping’s most recent initiatives, including the trials of Zhang Shuguang and Liu Zhijun, Footnote 92 indicate just how deep, and how pervasive, the problem of corruption is in Chinese society.

The Chinese state authority often tries to cover up serious events that would damage its reputation if they were exposed. Local officials have diligently covered up corruption, public health crises, grassroots riots, and even natural disasters. And although China’s central government tries to play a neutral, benign role before the public in such circumstances, it is also forced to protect party cadres, who are vitally important to maintaining its rule. The Party’s harsh censorship of the AIDs crisis in Henan, which arose because local officials sought to create a “blood economy” in the region, clearly illustrates the central government’s role in suppressing dissent while protecting top officials, none of whom were held to account in this case.Footnote 93

In this sense, the Chinese state’s reputation has been hijacked by corrupt officials and party cadres who mostly pursue their own self-interest. Local officials know that the more disparaging a public issue might be, the better protection it may receive from their superiors,Footnote 94 as both share the goals of protecting the Party State and preserving current patterns of social stratification. Not very long ago, a popular panic over bird flu reminded the public again of the SARS epidemic 11 years ago. In doing so, it recalled the fact that the government deliberately hid critical information from its own people and the rest of the world,Footnote 95 and that, for the state authority, its loss of control of the situation proved a disgrace even worse than its failure to contain the epidemic.

III. Good reputation: on which standards?

The majority of the Chinese population unquestioningly equates the reputation and honour of the Chinese state authority with the reputation and honour of the nation.Footnote 96 As a result, individuals who have disclosed information that may hurt the Party have been regarded as unfaithful to the whole community, even if the disclosure promotes the public interest in the long run. Two internationally recognized Chinese whistleblowers during the SARS epidemic, Ms. Gao Yaojie and Mr. Jiang Yanyong, have been treated harshly and censored for brave acts that saved tens of thousands of lives.Footnote 97 Similarly, Ms. Wang Qianyuan, a Duke University student at the time, and her parents were constantly harassed in China and the US because she chose to openly express personal opinions different from the majority of Chinese students, who then clashed with supporters of Tibetan independence at Duke before the 2008 Beijing Olympic Games.Footnote 98 Even young students studying abroad, who should be more open-minded, have found it difficult to tolerate free political expression when it comes to defending China’s collective reputation and honour.

The community’s strong sense of collective reputation and honour has also been called on to check the poor behaviour of Chinese overseas tourists. Because they are seen to be “losing China’s face” abroad, many poorly behaved tourists have gained bad reputations at home as reports of their conduct have come back to China. Some can even be seriously harassed by agitated internet users who are more than willing to protect China’s global reputation. For example, a picture of a boy’s name scrawled on an ancient Egyptian temple drew so much online criticism for the harm done to the reputation of the Chinese people that his parents were forced to apologize publicly on the internet after the family’s private information was made public and they were repeatedly stalked and bullied.Footnote 99 The Party has also gotten involved in the issue, with China’s Vice Prime Minister Wang Yang warning Chinese tourists to respect foreign culture and conventions while travelling abroad.Footnote 100

The collective effort to protect China’s reputation overseas stands in stark contrast to the clear divisions that exist between the state authority and ordinary citizens on many domestic issues. Increasing disparities in wealth and decades of rapid development have resulted in an increasingly diverse society. These groups often subscribe to very different moral standards and result in very different moral judgments. The emergence of an enlarging civil society, and of an online community of netizens in particular, exemplifies this trend. Netizens are now a formidable force in the country. The skyrocketing growth in internet usage means that most Chinese now have access to more information from different sources and can exchange ideas more easily. This access to world media outlets has made them more critical of government accounts of events. For example, appreciation of people like Yang Jia, Xia Junfeng, Jiang Yanyong, and Gao Yaojie among netizens clearly defies official accounts of their stories. They have even openly challenged the central government’s efforts to silence dissident artist Ai Weiwei by donating large sums of money within only a few days in order to pay out his court-ordered penalty for “tax evasion”.Footnote 101 Although liberals are still a minority in China, the concepts of individual rights, democracy, equality, and liberty are increasingly shared and appreciated.Footnote 102

At the same time, individualism and materialism have supplanted official socialist ideologies as the dominant ethos of many Chinese communities today. Many of the deepening divisions in Chinese society can be attributed to the single-minded pursuit of money, particularly among party cadres and business elites, whom many believe conspire together for illegal and immoral gain.Footnote 103

These social divisions have proven to be a major limitation on the constraining force of reputation as social control in China. Part of the problem is that the aggressive pursuit of short term benefits and easy money has destroyed the social stability needed to make the long-term investment in developing a good reputation a rewarding endeavour. For most people, the rewards from a good reputation are simply too weak and too far away to reject the temptation of almost instant gain. Indeed, in a society where free riders, opportunists, and lawbreakers accumulate vast wealth and rise in social rank, and lairs are respected as wise and intelligent, who would bother to cultivate a good reputation? Moreover, the fragile state of China’s political affairs has prompted an increasing number of intellectual and economic elites to leave China, or to consider doing so.Footnote 104 And many top officials and party cadres are following suit.Footnote 105

Rapid urbanization is another major contributing factor to the malfunction of reputation as social control. The migration of billions of farmers from rural farms to big cities over the last three decades has distanced them from the communities in which they built their credibility and from the traditional morals and patterns of life on which they were built. For instance, many migrants have extramarital affairs when they face long periods of separation from their spouses.Footnote 106 Although marital fidelity is still an important reputational issue in rural communities, traditional morality has lost its hold as people try to cope with the harsh realities of urban life. The social mobility provided by rapid urbanization has made it possible to shake off these moral burdens by leaving one’s past far behind.

Mistresses also play another role in other spheres of Chinese society in that having one (or more) indicates a local official’s or rich entrepreneur’s social status and wealth. Indeed, without one his fellows may well treat him with contempt.Footnote 107 This example points to the larger truth that the real social norms and mores of small networks of wealthy, powerful people are often very different from those openly acknowledged in public.Footnote 108 These “hidden rules”Footnote 109 – hidden because they are indecent and offensive to official ideology – are incredibly important in Chinese society. And these groups have “a type of reputation” for enjoying luxurious lifestyles that many Chinese want to copy in order to achieve success.

Finally, while the Party State itself has evolved into a large and heterogeneous group of political interests unable to speak with one coherent voice, its members still share a basic interest in protecting the status quo by all means and at all costs. This includes the use, misuse, and abuse of a wide network of professional institutions that would otherwise stabilize the social order in serious public crises. This malpractice has bankrupted those professions, in particular the Chinese judiciary, and lowered the morals of the Chinese community.

There is, however, a silver lining. Once the Party takes its hands out of a social sector, or is unable to control it, reputation can regain its constraining force and promote the public good once more. For example, empirical research has shown that, as in other countries, online reputation is a reliable regulatory mechanism in China’s laissez faire virtual market.Footnote 110 The internet is probably the only sector in present China that the state authority has no capacity to fully control, and this has allowed good service providers with fair reputations to freely compete in a market where information circulates freely and there are sufficient alternatives for customers. Reputation’s controlling force is expeditious and effective in the online buyer-seller relationship because a bad reputation eventually means bad business.Footnote 111

IV. Conclusion

The positive role of reputation in controlling social behaviour has been crippled in many Chinese social sectors by a lack of professional credibility and mutual trust. Clearly, the negative impact of the Party State’s absolute monopoly on power has been a key element of this sad saga; its monopoly of influence over many social sectors, in particular over the judiciary and the public media, has helped bankrupt them and brought them to serve the political end of retaining Party rule. However, the most fundamental reasons accounting for the inability of reputation to perform its role as a method of social control in the country relate to the Chinese community’s own increasingly diversified mores and values, a result of rapid economic development, the emergence of different social interests groups, and the collapse of communist ideology. This is because conflicts between standards of conduct undermine their regulatory force and moral persuasiveness, which in turn dilutes credibility and trust among other members of a community.

The study of the failure of reputation as social control in China also yields a number of important findings relevant to the issue of reputation beyond the Chinese context. First, social stability is a precondition for reputation to function as a form of social control, since one cannot claim the benefits of a long-term investment in one’s reputation in an unstable social environment focused on short-term interests. Second, a fair judiciary serves as the last safeguard of social justice, and bring wrongdoers in line with accepted norms by punishing misbehaviour. Third, free access to and the free circulation of information is essential for reputation to work as a regulatory mechanism, as it ensures the availability of the data needed for people to evaluate others’ deeds and reputations. Finally, monopoly is a natural enemy of reputation as social control, creating inequality among players and leaving insufficient space for meaningful choice, both of which undermine the binding force of reputation as a constraint on action.

Footnotes

*

LL.M., Ph.D. (Faculty of Law, University of Groningen, the Netherlands); M.A. (Law) (Southwest University of Political Science and Law, China); B.A. (English Literature) (Henan Normal University, China). Research Fellow, European and Economic Law Department, Faculty of Law, University of Groningen. The author would like to thank the Centre for Asian Legal Studies (CALS) at the National University of Singapore for the invitation to present a first draft of this paper at the Young Scholars Workshop of Asian Legal Studies: New Issues and New Scholarship in December 2013, as well as Professor Pauline Westerman from the Faculty of Law, University of Groningen, for her valuable comments on the same. Most importantly, this research would not be possible without the financial support of the research project “Legal Cases on Posthumous Privacy and Reputation (1980-2010)” organized by the Netherlands Organisation for Scientific Research (NWO).

1. Giora Szenes etc. v. The Broadcasting Authority, HCJ 6143/94 (1999), s. 12, online: State of Israel, Judicial Authority <http://elyon1.court.gov.il/files_eng/94/260/061/A01/94061260.a01.pdf>.

2. To enforce “civility rules”, in Post’s term. See POST, Robert C., “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 710.

3. KAZER, William, “China’s Red Cross Tries to Rebuild After Self-Inflicted Disaster” China Real Time (30 April 2013), online: China Real Time <http://blogs.wsj.com/chinarealtime/2013/04/30/chinas-red-cross-tries-to-rebuild-after-self-inflicted-disaster/>.

4. PEI, Minxin, China’s Trapped Transition: the Limits of Developmental Autocracy (Cambridge Mass.: Harvard University Press, 2006).

5. As my anonymous reviewer pointed out, the use, misuse, and abuse of reputation for social control by the Party or the Party-State certainly deserves an independent paper for a full discussion.

6. MCNAMARA, Lawrence, Reputation and Defamation (Oxford: Oxford University Press, 2008) at 31 and 33.

7. Supra note 2.

8. CRAIK, Kenneth H., Reputation: A Network Interpretation (New York: Oxford University Press, 2009).

9. Bowman regards reputation as a synonym for honour. See BOWMAN, James, Honor: A History (New York: Encounter Books, 2007) at 38. Also see Post’s explanation of reputation as honour. Post, supra note 2 at 699–707.

10. See Post’s discussion of reputation as dignity. Post, supra note 2 at 707–719.

11. BRENNAN, Geoffrey and PETTIT, Philip, The Economy of Esteem: An Essay on Civil and Political Society (New York: Oxford University Press, 2004). See also WHITFIELD, John, People Will Talk: The Surprising Science of Reputation (London: Duckworth Overlook, 2011) at 75–79.

12. See Post’s discussion of the relationship between the three conceptions of reputation with personal identity. Post, supra note 2 at 703–704, 715–717 & 735–737.

13. Although it has been addressed by reputation studies generally as well as by economics, so far reputation as social control (or governance) has not been treated by scholars in a systematic and multi-disciplinary manner.

14. ROACH ANLEU, Sharyn L, “The Role of Civil Sanctions in Social Control: A Socio-legal Examination” (1998) 9 Crime Prevention Studies 21 at 24, online: National Criminal Justice Reference Service <https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=175511>.

15. See Whitfield, supra note 11 at 7.

16. Post, supra note 2.

17. COOK, Karen S., HARDIN, Russell, and LEVI, Margaret, Cooperation Without Trust? (New York: Russell Sage Foundation, 2007) at 34–35, 84 and 190 (arguing that reputation is important for mutual trust and social cooperation, and is both backward- and forward-looking).

18. Online purchases based on binary reputation systems offers the best example. See DELLAROCAS, Chrysanthos, “Analyzing the Economic Efficiency of eBay-like Online Reputation Reporting Mechanisms” (October 2001) MIT Sloan Working Paper No. 4181-01, online: SSRN <http://papers.ssrn.com/abstract=289968>.

19. See Whitfield, supra note 11 at 6–7.

20. GUTMAN, Amy, “Introduction” in Amy GUTMAN, ed., Multiculturalism: Examining the Politics of Recognition (Princeton: Princeton University Press, 1994), 3 (arguing that social recognition is a vital human need in life).

21. For example, Stalin wrote out his great rival Leon Trotsky from public records to claim political legitimacy. See MACMILLAN, Margaret, The Uses and Abuses of History, 3rd ed. (London: Profile Books, 2009) at 25. Another example is China’s refusing many political dissidents publicity in order to contain their social influences.

22. See Whitfield, supra note 11 at 7.

23. See SUNSTEIN, Cass R., On Rumors: How Falsehoods Spread, Why We Believe Them, What Can Be Done, 1st ed. (New York: Farrar, Straus and Giroux, 2009).

24. See Craik, supra note 8 at 23-28.

25. Gossip can be a means to create and communicate reputations. See Whitfield, supra note 11 at 63. People tend to believe in gossip, especially when it proves their previous biases and prejudices. See Sunstein, supra note 23 at 5 and 15 (discussing the American context).

26. For instance, the Dutch government’s Cito test, a national evaluation of all primary schools across the country, has an important impact on Dutch parents’ school choice decisions.

27. For instance, denial of the Holocaust is a crime in many European countries, which is seen as the collective defamation of the Jewish society. See e.g. LECHTHOLTZ-ZEY, Jacqueline, “The Laws Banning Holocaust Denial” (2012) 9 GPN Bulletin, online: Genocide Prevention Now <http://www.genocidepreventionnow.org/Home/GPNISSUES/GPNBulletinLAWSAGAINSTDENIALSpecialSection9/tabid/164/ctl/DisplayArticle/mid/971/aid/470/Default.aspx>.

28. For a detailed account of how law is separated from politics and claims authority in exchange for legitimizing politics, see SELZNICK, Philip and NONET, Philippe, Law and Society in Transition: Toward Responsive Law (New Jersey: Transaction Publishers, 2001).

29. See IRAMI, Raymond, “Give the Dead Their Day in Court: Implying a Private Cause of Action for Defamation of the Dead from Criminal Libel Statues” (1999) 9 Fordham Intellectual Property, Media and Entertainment Law 1083 at 1098–1099 (arguing “[s]till, some invasion of privacy causes of action do primarily involve loss of reputation and may inevitably lead themselves into a defamation action.”).

30. Many countries, including the Netherlands, have had to limit the maximum purchase of baby milk power per customer so that there will be sufficient supply for local customers. WONG, Edward, “Chinese Search for Infant Formula Goes Global” The New York Times (25 July 2013), online: New York Times <http://www.nytimes.com/2013/07/26/world/asia/chinas-search-for-infant-formula-goes-global.html>.

31. ZHANG, Shirley, “Import-Export Taxes and Duties in China” China Briefing News (11 March 2013), online: China Briefing News <http://www.china-briefing.com/news/2013/03/11/import-export-taxes-and-duties-in-china.html>; Amy QIN and Edward WONG, “China Fines Milk Powder Suppliers Over Pricing” The New York Times (7 August 2013), online: New York Times <http://www.nytimes.com/2013/08/08/business/global/08iht-milk08.html>.

32. SHARMA, Shefali and ZHANG, Rou, China’s Dairy Dilemma: The Evolution and Future Trends of China’s Dairy Industry (Minneapolis: Institute for Agriculture and Trade Policy, 2014), online: Institute for Agriculture and Trade Policy <http://www.iatp.org/documents/china%E2%80%99s-dairy-dilemma-the-evolution-and-future-trends-of-china%E2%80%99s-dairy-industry>.

33. Such enterprises are excluded from the law enforcement of China’s anti-monopoly law. See HUANG, Yonget al., “China’s 2007 Anti-Monopoly Law: Competition and the Chinese Petroleum Industry” (2010) 31 Energy Law Journal 337.

34. WATTS, Jonathan, “Chinese Baby Milk Blamed for 50 Deaths” The Guardian (21 April 2004), online: The Guardian <http://www.theguardian.com/world/2004/apr/21/china.jonathanwatts>.

35. YARDLEY, Jim and BARBOZA, David, “ WarningsDespite, China’s Regulators Failed to Stop Tainted Milk” The New York Times (27 September 2008), online: New York Times <http://www.nytimes.com/2008/09/27/world/asia/27milk.html>.

36. “China Jails Tainted Milk Activist” BBC News (10 November 2010), online: BBC <http://www.bbc.co.uk/news/world-asia-pacific-11724323>.

37. Xi, MA and Chun, YAO, “Criticism of Domestic Melamine Standards ‘Misinterpretations’” China Daily (10 July 2012), online: People’s Daily Online <http://english.peopledaily.com.cn/90882/7870567.html>.

38. LUO, Yiyun, When Apology and Product Recall Is Not Enough: A Study of News Coverage of Meng Niu Dairy Crisis Management Strategies In The 2008 Chinese Milk Scandal (MA Thesis, University of Miami, 2010) [unpublished] at 35, online: University of Miami <http://scholarlyrepository.miami.edu/oa_theses/> (analyzing in much detail nationalist strategy in Meng Niu’s crisis management).

39. MOORE, Malcolm, “Chinese Milk Executive Says She Was Scapegoat for Crisis” The Daily Telegraph (8 February 2009), online: The Daily Telegraph <http://www.telegraph.co.uk/news/worldnews/asia/china/4558457/Chinese-milk-executive-says-she-was-scapegoat-for-crisis.html>.

40. See Yardley and Barboza, supra note 35.

41. JACOBS, Andrew, “China Sentences Zhao Lianhai, Activist in Milk Scandal” The New York Times (10 November 2010), online: New York Times <http://www.nytimes.com/2010/11/11/world/asia/11beijing.html>.

42. This is particularly true in the context of China’s transformation into a decentralized predatory state. Pei, supra note 4 at 132–166.

43. Even when they are available, they are still not accessible to the majority of Chinese patients. See e.g. LIU, Yongjunet al., “Development of foreign Invested Hospitals in China: Obstacles and Coping Strategies” (2013) 2:3Journal of Hospital Administration 142, online: <http://www.sciedu.ca/journal/index.php/jha/article/view/2567>.

44. See Cong’s analysis of high social status of doctors in China. CONG, Yali, “Doctor-Family-Patient Relationship: The Chinese Paradigm of Informed Consent” (2004) 29:2Journal of Medicine and Philosophy 149 at 161.

45. MINTER, Adam, “Violent Crimes in China’s Hospitals Spread Happiness” BloombergView (29 March 2012), online: BloombergView <http://www.bloombergview.com/articles/2012-03-29/violent-crimes-in-china-s-hospitals-spread-happiness>; TAKADA, Kazunori, “Bribery Serves as Life-Support for Chinese Hospitals” Reuters (23 July 2013), online: Reuters <http://www.reuters.com/article/2013/07/23/us-china-hospitals-bribery-idUSBRE96M12Y20130723>

46. BURKITT, Laurie, “China Fears Rise in Doctor Attacks” The Wall Street Journal (22 October 2012), online: The Wall Street Journal <http://online.wsj.com/news/articles/SB10000872396390444592704578066364234583312>.

47. Besides bribe and gift taking, sexual molestation has ruined many teachers’ dignity. See i.e. “Eight Student Molestation Cases in China Reported in 20 Days” EChinacities (21 June 2013), online: EChinacities <http://www.echinacities.com/china-media/8-Student-Molestation-Cases-in-Schools-China-Reported-in-20-Days>.

48. Even Western scholars have been criticized for their relationship to the Party. HOLZ, Carsten A., “Have China Scholars All Been Bought?” Far Eastern Economic Review (April 2007), online: China Digital Times <http://chinadigitaltimes.net/2007/04/have-china-scholars-all-been-bought-carsten-a-holz/>.

49. For instance, a sexist comment from a top forensic expert on a recent rape case in Beijing that severely agitated the public. “Professor Apologizes for Comments on Rape Case” China Real Time (17 July 2013), online: The Wall Street Journal <http://blogs.wsj.com/chinarealtime/2013/07/17/professor-apologizes-for-comments-on-rape-case/>.

50. See a discussion of such problems within Chinese academia by Xinglong Cao. CAO, Xinglong, “China’s Lax Law Harbors Academic Misconduct” (2010) China Law and Policy, online: China Law and Policy <http://chinalawandpolicy.com/2010/03/04/academic-misconduct-in-china-whats-law-got-to-do-got-to-do-with-it/>.

51. “In fact, it has almost be expected that as long as you are a government official, you are automatically corrupt.” Zarathustra, “In China, Among 100 Government Officials, 101 of Them Are Corrupt” Also Sprach Analyst (17 April 2012), online: Also Sprach Analyst <http://www.alsosprachanalyst.com/economy/china-corrupt-government-officials-bo-xilai-scandal.html>.

52. For instance, a local police chief was promoted soon after a court ruling disclosed the fact that he had bribed a superior leader. See KUHN, Anthony, “New Chinese Law Cracks Down On ‘Rumor Mongers’” National Public Radio (26 September 2013), online: NPR <http://www.npr.org/blogs/parallels/2013/09/25/226181016/new-chinese-law-no-rumormongering>.

53. A good illustration is the recent political trial of Chongqing Governor Bo Xilai. WONG, Edward, “Ex-Police Chief in China Scandal Aided Prosecutors” The New York Times (18 September 2012), online: The New York Times <http://www.nytimes.com/2012/09/19/world/asia/former-police-chief-wang-lijun-in-bo-xilai-scandal-aided-prosecutors.html>.

54. For the best analysis of the traditional social status of Chinese officials, see WANG, Yanan, Zhongguo Guanliao Zhengzhi Yanjiu (中国官僚政治研究) [The Politics of Chinese Bureaucracy] (Beijing: Shangwu Publishing House, 2011).

55. See CHIN, Yik Chan and LIU, Yanbin, “Truth, Fair Comments, Immunity and Public Opinion Supervision: Defenses of Freedom of Expression in Chinese Right to Reputation Lawsuits” (27 February 2013) SSRN Scholarly Paper at 11, 17, 38 and 66, online: SSRN <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2225735>.

56. LIEBMAN, Benjamin L., “Innovation Through Intimidation: An Empirical Account of Defamation Litigation in China” (2006) 47:1Harvard International Law Journal 33; YAN, Meining, “Criminal Defamation in the New Media Environment – The Case of the People’s Republic of China” (2011) 14 International Journal of Communications Law and Policy 1.

57. BANDURSKI, David, “Hunan Petitioner Jailed for ‘Defamation’” China Media Project (26 April 2012), online: China Media Project <http://cmp.hku.hk/2012/04/26/21887/>.

58. A telling example is the problematic execution of suspect Niu Shubin in 1994 which made the High People’s Court of Hebei the centre of a national scandal after it refused a retrial, even when the real killer confessed his killing of the victim. For Niu’s case and other similar controversial death penalty cases, see TREVASKES, Susan, The Death Penalty in Contemporary China (New York: Palgrave Macmillan, 2012) at 52.

59. For instance, the recent dismissal of Shanghai judges and court officials after video clips of them performing sex acts with a prostitute was uploaded online and watched by millions of Chinese. PERLEZ, Jane, “Chinese Judges Disciplined in Prostitution Scandal After Videos Circulate Online” The New York Times (7 August 2013), online: The New York Times <http://www.nytimes.com/2013/08/08/world/asia/chinese-judges-disciplined-for-cavorting-with-prostitutes.html>.

60. See e.g. JACOBS, Andrew, “Bank Guard Kills 3 at Chinese Courthouse” The New York Times (1 June 2010), online: The New York Times <http://www.nytimes.com/2010/06/02/world/asia/02china.html>.

61. Even the former Vice President of the People’s Supreme Court of China, Huang Songyou, was found guilty for misconduct, corruption, and taking bribes. WANG, Yuhua, “Court Funding and Judicial Corruption in China” (2013) 69 The China Journal 43 at 45. For a description of institutional corruption in Chinese judicial system, see LING, Li, “The “Production” of Corruption in China’s Courts: The Politics of Judicial Decision-Making and its Consequences in a One-Party State” (2011) USALI Working Paper Series, online: US Asia Law Institute <http://www.usasialaw.org/wp-content/uploads/2011/07/The-production-of-corruption-in-Chinas-courts.pdf>.

62. See GOETZ, Darcey J., “China’s Environmental Problems: Is a Specialized Court the Solution” (2009) 18 The Pacific Rim Law and Policy Journal 155.

63. Chinese judges often have second thoughts when delivering suitable judgments when private litigants accuse state-owned oil firms of pollution. See e.g. XIA, Jun, “Losses at Sea” Chinadialogue (28 July 2011), online: Chinadialogue <https://www.chinadialogue.net/article/show/single/en/4433>.

64. Goetz, supra note 62 at 163.

65. The Chinese Communist Party maintains control over judicial institutions, whose unchecked power has led to institutionalized judicial corruption. See Ling, supra note 61.

66. MOORE, Malcolm, “Leading Chinese Forensic Scientist Quits Just Days Ahead of Bo Xilai” The Daily Telegraph (18 August 2013), online: The Daily Telegraph <http://www.telegraph.co.uk/news/worldnews/asia/china/10250453/Leading-Chinese-forensic-scientist-quits-just-days-ahead-of-Bo-Xilai.html> [Moore, “Leading Scientist Quits”].

67. LONGANECKER, Mindy Kristin, “No Room for Dissent: China’s Laws Against Disturbing Social Order Undermine Its Commitments to Free Speech and Hamper the Rule of Law” (2009) 18:2Pacific Rim Law and Policy Journal 373.

68. These measures have included cracking down on influential public opinion leaders on micro-blogs and other social media. BUCKLEY, Chris, “Crackdown on Bloggers Is Mounted by China” The New York Times (10 September 2013), online: The New York Times <http://www.nytimes.com/2013/09/11/world/asia/china-cracks-down-on-online-opinion-makers.html>.

69. “China Appoints ‘Moral Models’ to Improve Citizens’ Moral Standards” People’s Daily Online (19 September 2007), online: People’s Daily Online <http://english.people.com.cn/90001/90776/6266474.html>.

70. Pei argued that China’s predatory state exists not only at the local level, but also at the central level, and that the unchecked state predation is dire. Pei, supra note 5 at 36–39. A stunning example is the in The New York Times that revealing the surprising family fortune of previous Prime Minister Wen Jiabao, who declared himself a clean political leader. BARBOZA, David, “Family of Wen Jiabao Holds a Hidden Fortune in China” The New York Times (25 October 2012), online: The New York Times <http://www.nytimes.com/2012/10/26/business/global/family-of-wen-jiabao-holds-a-hidden-fortune-in-china.html>.

71. CLIPPINGER, John Henry, “An Inquiry into Effective Reputation and Rating System” in Hassan MASUM, Mark TOVEY, and Craig NEWMARK, eds., The Reputation Society: How Online Opinions are Reshaping the Offline World (Cambridge, Mass.: MIT Press, 2011), 25.

72. A local museum was even built to exhibit Liu’s past cruelty and evil deeds. CHEN, Liang, “Fight to Clear Landlords’ Reputation” Global Times (2 September 2013), online: Global Times <http://www.globaltimes.cn/content/808079.shtml#.Uk62-fIw-2g>.

73. Chen Mingliang Yu Beijing Qingnian Baoshe Wu Shi Mingyuquan An, Yi Zhong Min Zhong Zi Di 8549 Hao 2003 (陈明亮与北京青年报社、吴思名誉权纠纷案, 一中民终字第8549号 2003) [Chen Mingliang v. Wu Si and Beijing Youth Newspaper, Beijing No. 1 Interim Court No. 8549, 2003], online: Qinquan <http://www.qinquan.info/138v9.html>.

74. “Questioning of Lei Feng’s Frugality Leads to Detention” The Wall Street Journal China (21 August 2013), online: The Wall Street Journal China <http://blogs.wsj.com/chinarealtime/2013/08/21/four-detained-for-questioning-lei-fengs-frugality/>.

75. As the founder of the communist China, to question Mao’s reputation would be to undermine the Party’s legitimacy in China. See MacMillan, supra note 21 at 69.

76. For instance, Lin Zhao has recently been commemorated and regarded as a “goddess of liberty” or a “saint” by many Chinese. XU, Yang and JING, Jing, “Restoring Sanity to Lin’s Story” Global Times (9 May 2012), online: Global Times <http://www.globaltimes.cn/NEWS/tabid/99/ID/708652/PageID/630966/Restoring-sanity-to-Lins-story.aspx>.

77. CHAO, Guoxing, “Shanghai Guanfang Didiao Xuanbu Ba Zaiyangjia’an Zhong Yuhaide Liumingjingyuan Pingwei Lieshi (上海官方低调宣布把在杨佳袭警案中遇害的六名警员评为‘烈士’)[Shanghai Authority Lowered Tune in Awarding the Dead Police Officers ‘Martyrs’ Killed by Yang Jia]” RFI (4 February 2009), online: The France Médias Monde <http://www1.rfi.fr/actucn/articles/110/article_11909.asp>.

78. PILS, Eva, “Yang Jia and China’s Unpopular Criminal Justice System” Human Rights in China (1 April 2009), online: Human Rights in China <http://www.hrichina.org/content/3702>.

79. XU, Nan and ZHU, Hongjun, “Bei Yulun Hulue de Yunan Jingcha (被舆论忽略的遇难警察) [The Police Victims Forgotten by Chinese Media]” Nanfang Zhoumo (南方周末) [Southern Weekend] (17 July 2008), online: The Nanfang Group <http://www.infzm.com/content/14733>.

80. JACOBS, Andrew, “Her Husband’s Execution, Then a Bag of Ashes” The New York Times (27 September 2013), online: The New York Times <http://www.nytimes.com/2013/09/28/world/asia/her-husbands-execution-then-a-bag-of-ashes.html>.

81. See ibid. The assumption was confirmed by a recent speech by Zhou Qiang, the Chief Justice of People’s Supreme Court of China. CAO, Yin, “Decisions Are Courts’ Responsibility: Top Judge” China Daily USA (12 March 2014), online: Chian Daily USA <http://usa.chinadaily.com.cn/china/2014-03/12/content_17341322.htm>.

82. JACOBS, Andrew, “Street Vendor’s Execution Stokes Anger in China” The New York Times (25 September 2013), online: New York Times <http://www.nytimes.com/2013/09/26/world/asia/street-vendors-execution-stirs-anger-in-china.html>.

83. FLOCK, Elizabeth, “Yueyue, Chinese Toddler Run over in Hit-and-Run, Believed to Be Stable” The Washington Post: Blogs (21 October 2011), online: The Washington Post <http://www.washingtonpost.com/blogs/blogpost/post/yue-yue-chinese-toddler-run-over-in-hit-and-run-believed-to-be-stable/2011/10/18/gIQAb83kuL_blog.html>.

84. MINTER, Adam, “China’s Infamous ‘Good Samaritan’ Case Gets a New Ending: Adam Minter” Bloomberg (6 October 2013), online: Bloomberg <http://www.bloomberg.com/news/2012-01-17/china-s-infamous-good-samaritan-case-gets-a-new-ending-adam-minter.html>.

85. Ibid.

86. ZARING, David, “Regulating by Repute” (2011) 110 Michigan Law Review 1003 at 1005.

87. Ibid at 1010.

88. Moore, “Leading Scientist Quits”, supra note 66.

89. For instance, Article 19 argued that reputation of state or nation and other public bodies are not protected by defamation law according to international law standards. See “Defining Defamation: Principles on Freedom of Expression and Protection of Reputation” Article 19 (1 July 2000), online: Article 19 <http://www.article19.org/resources.php/resource/1802/en/defining-defamation:-principles-on-freedom-of-expression-and-protection-of-reputation>.

90. The conventional wisdom in international law is that anticipating a loss of future gains, states will often comply with international rules even when it is not in their immediate interests. See a discussion of both the argument and counter-argument by Brewster. BREWSTER, Rachel, “Unpacking the State’s Reputation” (2009) 50:2Harvard International Law Journal 231.

91. See e.g. ROOT, Hilton, “Corruption in China: Has It Become Systemic?” (1996) 36:8Asian Survey 741 at 741–757; and WEDERMAN, Andrew, “The Intensification of Corruption in China” (2004) 180 The China Quarterly 895 at 895–921.

92. “Chinese Business Woman Latest to Be Charged in Rail Way Corruption Scandal” Reuters (9 September 2013), online: Reuters <http://www.reuters.com/article/2013/09/09/us-china-graft-ding-idUSBRE98803I20130909>.

93. As the successor of the former provincial governor Li Changchun, the current Chinese Prime Minister Li Keqiang had a role to play in covering-up this issue. The former was one of the eight members of China’s previous politburo, which is normally neither legally nor politically accountable to anyone. “AIDS in China: Blood Debts” The Economist (18 January 2007), online: The Economist <http://www.economist.com/node/8554778>.

94. Many grassroots officials have even tried to capitalize on local instability for personal gains. LEE, Ching Kwan and ZHANG, Yonghong, “The Power of Instability: Unravelling the Microfoundations of Bargained Authoritarianism in China” (2013) 118 American Journal of Sociology 1475, especially at 1493.

95. Again, the public health authorities waited three weeks to inform them of the infections in the Shanghai area. MINTER, Adam, “Bird Flu Mystery Recalls Chinese SARS Coverup” Bloomberg (2 April 2013), online: Bloomberg <http://www.bloomberg.com/news/2013-04-02/bird-flu-mystery-recalls-chinese-sars-coverup.html>.

96. Note also that many Americans regard the extraordinary revelation of Snowden as a major betrayal.

97. For their stories see WATTS, Jonathan, “SARS Hero Detained for ‘Re-education’” The Guardian (6 July 2004), online: The Guardian <http://www.theguardian.com/world/2004/jul/06/sars.china>. See also “How SARS Contaminated China’s Reputation” The Globe and Mail (20 March 2009), online: The Globe and Mail <http://www.theglobeandmail.com/commentary/how-sars-contaminated-chinas-reputation/article749737/>.

98. “Duke University Student Wang’s Father Says He Doesn’t Need Police Protection” Xinhua (23 August 2008), online: SinaChina <http://english.sina.com/china/1/2008/0423/155905.html>.

99. “China ‘Disgraced’ by Tourist Vandal Who Engraved ‘Ding Jihao Was Here’ Over Hieroglyphics at Egyptian Temple” Daily Mail (27 May 2013), online: Daily Mail <http://www.dailymail.co.uk/news/article-2331613/China-disgraced-tourist-vandal-engraved-Ding-Jihao-hieroglyphics-Egyptian-temple.html>.

100. KAPHLE, Anup, “Chinese Tourists’ Bad Manners Harming Country’s Reputation, Says Senior Official” The Washington Post (17 May 2013), online: The Washington Post <http://www.washingtonpost.com/blogs/worldviews/wp/2013/05/17/chinese-vice-premier-says-chinese-tourists-bad-manners-is-harming-china/>.

101. While electronic transfer was impossible, many travelled to his residence in Beijing to show support. They even donated by flying paper planes folded from 100 RMB notes over heavily guarded walls. JACOBS, Andrew, “Thousands Chip In to Help Dissident Artist Pay Fine” The New York Times (6 November 2011), online: The New York times <http://www.nytimes.com/2011/11/07/world/asia/thousands-chip-in-to-help-ai-weiwei-pay-fine.html>.

102. LORENTZEN, Peter and SCOGGINS, Suzanne, “Rising Rights Consciousness: Undermining or Undergirding China’s Stability?” (1 September 2011) SSRN Scholarly Paper, online: SSRN <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1722352>; Li Liangjiang, “Rights Consciousness and Rules Consciousness in Contemporary China” (2010) 64 The China Journal 47.

103. FRANK, Robert, “In China, They REALLY Hate the Rich” WSJ Blogs - The Wealth Report (11 December 2009), online: The Wall Streel Journal <http://blogs.wsj.com/wealth/2009/12/11/in-china-they-really-hate-the-rich/>.

104. Xiaoling PAN and Qingqing YAN, “Duoshao Jingying Zhengzai Yimin Haiwai, Tamen Xunqiu Shenme (多少精英正在移民海外 他们寻求什么) [Why Chinese Elites Moving Abroad and What They Seek ]” Nanfang Zhoumo (南方周末) [Southern Weekend] (6 June 2010), online: The Nanfang Group <http://www.infzm.com/content/45945>.

105. DEMICK, Barbara and PIERSON, David, “China Steps Up Efforts to Keep Officials from Leaving Country” Los Angeles Times (6 June 2012), online: Los Angeles Times <http://articles.latimes.com/2012/jun/06/world/la-fg-china-naked-official-20120606>.

106. HUI, Ning, “Lonely and Far From Home, China’s Migrant Workers Turn to ‘Temporary Marriages’ to Survive” Tea Leaf Nation (6 October 2013), online: Tea Leaf Nation <http://www.tealeafnation.com/2013/03/lonely-and-far-from-home-chinas-migrant-workers-turn-to-temporary-marriages-to-survive/>.

107. See JIANG, Chengcheng, “Love Don’t Cost a Thing: Can Educating Girls Alone Curb China’s Mistress Epidemic?” Time (6 October 2013), online: Time <http://content.time.com/time/world/article/0,8599,2072530,00.html>.

108. See, for instance, Osburg’s empirical study of the details of the lives of local political and business elites in Chengdu City. OSBURG, John, Anxious Wealth: Money and Morality Among China’s New Rich (Stanford: Stanford University Press, 2013).

109. See KUHN, Anthony, “Secret Jails Used to Enforce China’s ‘Hidden Rules’” National Public Radio (7 October 2013), online: NPR <http://www.npr.org/templates/story/story.php?storyId=128825986>.

110. ZHOU, Liána and ZHANG, Weiying, “Xinyue de Jiazhi: Yi Wangshang Paimai Jiaoyi Weili(信誉的价值：以网上拍卖交易为例) [The Value of Reputation: Evidence from Online Auctions]” (2006) 12 Jingji Yanjiu (经济研究) [Economic Research Journal] at 81–91.

111. In the regard, the relationship between law and reputation as social control should be further discussed, since it seems that reputation becomes more important in providing mutual trust and cooperation when there is no effective legal order. Or vice versa, individuals can cooperate with each even without mutual trust when there is good law in action. On this point, one may draw wits from Cook, Hardin, and Levi’s study of various means for cooperation without trust. See Cook, Hardin, and Levi, supra note 17.

* LL.M., Ph.D. (Faculty of Law, University of Groningen, the Netherlands); M.A. (Law) (Southwest University of Political Science and Law, China); B.A. (English Literature) (Henan Normal University, China). Research Fellow, European and Economic Law Department, Faculty of Law, University of Groningen. The author would like to thank the Centre for Asian Legal Studies (CALS) at the National University of Singapore for the invitation to present a first draft of this paper at the Young Scholars Workshop of Asian Legal Studies: New Issues and New Scholarship in December 2013, as well as Professor Pauline Westerman from the Faculty of Law, University of Groningen, for her valuable comments on the same. Most importantly, this research would not be possible without the financial support of the research project “Legal Cases on Posthumous Privacy and Reputation (1980-2010)” organized by the Netherlands Organisation for Scientific Research (NWO).