The relationship between the individual and the judicial system is an essential dimension in every society. Lawyer Matthias Schroeder provides inside knowledge on the situation in China. He was born in Beijing and this is where he practices law today. Schroeder sees a system that most Chinese citizens find perfectly adequate. While the law firm founder certainly recognizes the weaknesses of China’s current legal system, political influence on most disputes is minimal. The much-dreaded injustice is largely felt by those least involved in politics. In our CEO Talk, Schroeder describes why the majority of Chinese citizens, who have been socialized in China, are actually quite content with the legal system. After all, it is now already much more developed than it was during the previous generation.
But the constant development of laws also brings new challenges for the Communist Party. It changes thinking and raises the bar. One example is the new data protection law. It mandates in detail what China’s economy is allowed to do with customers’ data, or rather, what they are no longer allowed to do. However, it is only a small step from here to the question of what the state actually intends to do with citizens’ data. “The genie is out of the bottle,” says Schroeder.
Many experts agree that China’s data protection in the commercial area is now overtaking even that of the EU and US. The government just isn’t afraid to get its hands dirty. In today’s analysis, we look at the ongoing regulation of algorithms. Chinese citizens will be able to access data points and assessments on their preferences stored by service providers. This is a right that many Germans would also like when it comes to their data stored by Google, Amazon and Facebook.
Have a pleasant week!
Disclaimer. This interview excerpt was translated into English and is not considered an official translation by any party involved.
Matthias Schroeder is a triplet and yet quite unique: a German lawyer who was born in Beijing and grew up mostly there. The reason is simple. The parents of the 46-year-old were East German diplomats. They played tennis with George Bush and his wife Barbara in Beijing in the 1970s. After all, the former U.S. president was the unofficial U.S. ambassador to Beijing at the time. Schroeder lived here all his life – the only one of the three brothers.
The 1.97 meters tall, athletic lawyer studied law in Cape Town and Berlin and, after one or two stops in China, set up his own law company in Beijing: Ding Schroeder & Partner. He also operates the website Law-China.de. Outside his work, he is part of the board of the German Society for Speed Reading and is also a fitness trainer. Schroeder is also the only German lawyer in China who appears in court. In short: Schroeder knows how the law in China works.
Mr. Schroeder, is China a constitutional state?
That depends on your definition of a constitutional state. I understand it as a state under the rule of law, in which the law prevails and not individual persons. That’s how Chinese leaders would put it. I’d be a little more careful. But still, China is changing. The governance by officials is gradually being replaced by the rule of law, in other words, it shifts towards the definition of a constitutional state we Europeans tend to have.
What is still missing on the way in that direction?
In Germany, the legislator himself is bound by the law. In China, not yet to the same extent. Even the party is not slavishly bound by the law. In Chinese law, you can still experience surprises, because court judges can not yet interpret the law in everyday life as freely as here in Germany. One major difference: in Germany, a judge can definitely stand up to the legislature with their interpretation of the law, whenever it may not be to his liking. That is still a rare thing in China.
In China, the judges wait until the party tells them how to interpret the law.
In any case, he cannot rush a verdict without first having to review it himself. We have also had cases where the initial court has referred the case to the Court of Appeal before a final decision was made, so as not to issue a decision with which the next higher court disagrees. While this is pragmatic, it has delayed the trial by almost a year.
So as a lawyer, you look at the party or the next instance first?
Yes. That’s because that’s what judges do as well. And yet, in other respects, the leeway is even greater than in Germany. Whereas in Germany every detail is covered in extensive commentary literature – the German Civil Code is over 100 years old – most Chinese laws are much more recent and the literature is not as extensive. Chinese judges, therefore, ask lawyers to collect precedents and present them to the court for guidance. This gives one an opportunity to point out this and that and be met with openness, even gratitude. After all, Chinese judges are lawyers and not politicians. Basically, they want to discuss legal matters, not political ones, especially since the level of legal texts is becoming more reliable.
Is this development towards more reliability happening because people are putting pressure, want more legal clarity?
I would put it this way: The state says it has a monopoly on settling disputes when people are no longer able to come to an agreement themselves. If the state can’t quite manage that, people become discontent. This creates social unrest, which the state doesn’t want. So there is pressure for development, for laws and procedures citizens perceive as unfair.
Often the state and the party have other interests than the people. How does this come together?
It is a constant balancing act between the party’s desire to achieve its goals and the people’s desire for justice. Neither interest can prevail unhindered.
But aren’t the state and the CCP growing in power then?
Yes and no. In civil disputes, for example between neighbors, this is no longer the case. In other areas, the relationship between community and individual, the state is taking a closer look.
How do people react to this?
It only bothers them when it affects them personally. One rarely encounters an abstract sense of being affected in China. There is no outcry here when general measures are taken. The control of information flow, but above all economic prosperity, play a major role. If people are largely free to do whatever they want, then they are less interested in constitutional issues and find it easier to deal with the occasional imposition by the authorities. Something we underestimate when looking at it from an outside perspective is that in everyday life, civil law has a much higher value, and it is much less politically burdened than we think.
Do the Chinese have a different sense of justice than Germans?
In the West, at least this is my experience, the individual’s sense of justice is stronger. People are quicker to shout, “But that’s unfair!” In China, my experience is that the question of whether something is fair is delegated to the lawyer because the sense of equity is not as developed. Just like how you leave it for your doctor to decide how sick you are. Or to the mechanic whether the car engine is broken.
Why is that?
People in China still live more in roles. They are sons or fathers. Teachers or students. Managers or assistants. They are also addressed that way and then behave accordingly. It even goes as far as that grown people only tell their parents what normally children would tell their parents. It’s about the role, not about feelings.
For us, it used to be similar
And when you are asked what fairness is, you are asked who you are, what you expect from the world and what you want. That’s much more than a role. In domestic relations lawsuits, we have resorted to conducting such negotiations between lawyers, because individuals could not contribute much at all to the question of fairness and equitable resolution.
Will people discard this role-playing as they move on, or is it too deeply embedded in their culture?
That is a difficult question. What is cultural, thus sits deeper, and what is social development and shifts more easily. It’s hard to separate. Perhaps one observation helps: In the past, people defined themselves more by their role; today, more and more Chinese define themselves by consumption, i.e. what clothes or watches they wear and what car they drive.
So the roll is getting weaker.
Yes, or it will be consumer roles. In the West, at least, things are already different. Here, people actively try to avoid role clichés. I don’t claim to be a lawyer, I work as a lawyer, I want to say I’m much more than that, more diverse. I’m also a fitness instructor. I also have a taste in art. But I’m not as deep in a consumer role as in China. The goal is even to avoid a role. The Chinese middle class isn’t quite there yet. You see that more in Japan or South Korea. With strange results: many resorts to wearing Hello Kitty in order not to conform, although this creates new conformity again.
The party, however, needs people playing a role.
At least it is easier to control ants than a bag of fleas. Or in terms of people: Controlling atheists is harder than controlling fervent followers of a religion. That’s why the CCP needs the spiritual superstructure.
At the same time, China’s success is based on trial and error. On pragmatism established by Deng Xiaoping in particular. How does this play out?
The common ground is that for all its pragmatism or political faith, it needs a helmsman to keep the ship from running ashore. For China, Russia in the 1990s is an example of what can happen when a country goes off course.
It is clear that the party thinks this way. But does the population also think so?
It’s not something that is sought or craved. But it makes life easier. You sleep more peacefully, you need less energy when you’re told how to see the world. That’s why many, probably even the majority, don’t mind when the party has their way.
But many also want to have their say. Many people in Hong Kong or in Xinjiang, for example.
Certainly. That is important. But they are still minorities. The majority of society doesn’t look their way because it doesn’t affect them. On the contrary, provocatively speaking, the minorities even disturb the flow of the majority’s current. You can criticize this point of view. But you shouldn’t underestimate it when it comes to the human rights violations in Xinjiang and Hong Kong. The majority does not want to deal with it, it even finds it disturbing. Confucius once said: What is the fate of the child of a foreign mother to me? Such sentiments go against our Western understanding of compassion, but possibly describe Chinese society.
Does this indifference also apply to data protection?
The awareness of Chinese authorities collecting too much data is not yet widespread. This is also due to censorship, but even more so because most people only question such developments when they personally experience the disadvantages. The disadvantages in China are currently mainly felt by dissidents, NGOs, journalists and lawyers. By ordinary citizens, less so.
But aren’t these disadvantages becoming apparent to the social scoring system currently being established?
Possibly. But it’s hardly developed yet. It does not yet play a role in the daily lives of most Chinese citizens. And it can also have the opposite effect. It could happen that this scoring system triggers a race for conformity, for being the model student. At least that’s what the party is hoping for, and it’s not entirely wrong. The biggest problem with data collection is that people can be manipulated with the data. This is as true in the West as it is in China. In China, it is politically motivated, in the West it is economic. It’s not about values, but maximizing profits. When you see Amazon making better suggestions for gifts than your wife or husband, you see where the path is headed – even in China. It’s about leading people in a certain direction without them realizing it. Social scoring, on the other hand, is very transparent.
Won’t people fight back sooner than it might seem now? How much longer can the state keep the lid on it?
I studied law in systemic change in South Africa and conducted field research in various African societies. The question was how strong democratic institutions must look like? The answer was surprising: it’s not so much how the institutions are structured, but that people want to deal with them. There’s no point in introducing democracy to a country where people don’t want to or can’t make decisions about developments that don’t specifically affect them. But that is the essence of democracy.
Of course, every dictator is happy about the result of this study and says “See, we have to rule for another 30 years”.
That may be so. But a research result cannot be reprehensible just because someone can misuse it. More importantly, it is the socialization of the people that matters first, and only then the structure of the institutions. This is why the responsibility lies with the people. This responsibility is very closely linked to their understanding of what a human being is.
Is the new Chinese data protection law that just came into effect a sign that the concept of a human being is changing in China?
If there was no need for this among the population, the legislator would not have bothered. But you have to look at it in a more nuanced way. It’s not yet about data as a whole. What bothers people right now is how private companies handle the data, not so much how the state handles it. But that’s an important step nonetheless. The state wants to prevent the handling of data in business from unsettling consumers; nothing more. The new idea here is, and it is a powerful one, that people should be able to decide for themselves who earns money with their data and how. As I said, this relates to consumption for now, but the genie is out of the bottle. Even if the state says it can use the data in the case of national security.
What’s it like in Germany?
The German Basic Law states that the free democratic basic order cannot be abolished by any law or constitutional amendment. That does not exist in China. A big difference.
So there is a different balance in the relationship between the individual and the community in China than in the West?
Yes, it tends more towards the community. However, this does not only come from the top, from the dictators but also has to do with the fact that people in China possibly see themselves quite differently, more as part of a community. In Europe, on the other hand, people do not see themselves as part of a community, but rather as an individual or as part of another minimal community, a smaller, more unique group, but not so much as part of a people.
Did this issue also play a role in the fight against Covid?
A lot of people say that. But in reality, it is more complex than that. Basically, a Chinese person may not care as much whether he infects another Chinese or not. Before Covid, the Chinese people may have worn masks to protect themselves, not to protect others. But when it is mandated, when it is a matter of the community, it is much easier for individuals to submit. It is less perceived as compulsion than as a duty. It’s not as much of a matter of empathy.
This makes it easier for authorities to enforce even unpopular measures.
Yes, because the Chinese don’t ask as many questions: Why me of all people? Instead, they fulfil their role as citizens when it is required – with a naturalness that amazes people in the West.
Under these conditions, what are the major legal challenges of the coming years?
China has created an enormous amount of laws in the past few years. They have a completely new corporate law. They have a completely new civil code, a new tax code. Now they are building data protection legislation. The biggest challenge now is the incredibly fast technological development. For example, how do I legally deal with artificial intelligence or its sub-sector, autonomous driving? This has to be regulated, and there is hardly any precedence in the West. This is new territory that is changing every day. Many issues in the digital economy are also new. Our legal thinking is dominated by the mindset that a product is manufactured and can then be sold with added value. Like a car, for example.
And today?
Today, we produce digital products that are developed once and can then be duplicated and sold millions of times almost free of charge. As a result, individuals or companies suddenly become incredibly rich without having to work or sacrifice their lives. Bill Gates is the pioneer of this development. Is this fair? Is it in the interest of the community? Chinese and Western lawyers are currently dealing with these questions in parallel. The tech crackdown in China has a lot to do with this question. It will be very exciting to see what different or common results lawyers will find. And one thing is already clear: the diversity of solutions will increase due to the new player China.
What makes China different?
The Chinese government clearly sees that in Western democracies, large corporations also have increasing political power and can undermine existing jurisdiction. The Chinese state does not want to grant corporations this power. In the West, people are more phlegmatic about this.
So China is going for a planned economy?
This has nothing to do with a planned economy. It is about regulating the compatibility of the economy with the general public. This is not only a new territory for China but also a new territory for the world. Marx and Engels are of little help here. Instead, one can only go step by step, groping through the river. Outdated concepts like planned economy tend to slow things down.
What does the Chinese leadership want?
It wants controllable prosperity in a society with as few imbalances as possible. China is feeling its way towards this and is not immune to setbacks. It is a blind flight for which there is no theory.
Is that what fascinates you about China?
I’m interested in the differences in cultures. You learn a lot more about yourself when dealing with people who are culturally and socially distant than by always talking to your own people about your own things.
You can watch the full conversation in German here.
The manipulation of our rather simple human brains by artificial intelligence is currently the big topic among futurologists and regulators. Now China is setting new standards as part of its data protection offensive. A new draft law provides for an enormous strengthening of citizens’ rights against manipulative algorithms. However, as always, the provisions only apply to business, not the government. The stated goal of the bill is to “uphold mainstream values”. Digital services are supposed to ” vigorously disseminate positive energy, and advance the use of algorithms upwards and in the direction of good”.
On Friday, the Cyberspace Affairs Commission and the Department of Justice posted a draft bill online. The ministry is calling on the public to comment by September 26. An English translation by the DigiChina initiative at Stanford University can be found here.
Privacy specialist Kendra Schaefer of research service Trivium thinks the proposed rules are even stricter than those in Europe. “As far as I’m concerned, this policy marks the moment that China’s tech regulation is not simply keeping pace with data regulations in the European Union but has gone beyond them,” she wrote on Twitter.
Specifically, the draft provides for the following rules, all of which will be tough nuts to crack for Internet services:
An algorithm is actually a calculation path in individual steps. In computer science, the term is used for program sequences. Derived from this, the term currently stands for a new concept in the world of data regulation. Computer programs evaluate data and use decision paths to present customized content to users. So it’s an algorithm that recommends the next book for us to read on Amazon. Often, it matches readers’ tastes quite well.
China’s internet services, however, have advanced the application of algorithms to a piece of art. “Like its international counterpart TikTok, Douyin is famous for its powerful recommendation algorithm,” writes expert Helen Toner of Georgetown University’s Center for Security and Emerging Technology. In fact, a good part of the internet giant’s business model is based on clever data mining. The new regulation will definitely make their business more difficult.
Mobile games from providers like Tencent let players win and lose in designated patterns. In this way, they create the greatest possible motivation to keep at it. They don’t do this in the same way for everyone but adapt the motivation curve to individual reactions. One person might be driven to stick with it by winning frequently, but for another, it would be boring because they are looking for a greater challenge. Also, special offers for “valuable” items in the games like “jewels” that can be used to buy benefits often come right when the sales opportunity is greatest.
Even the offers and special deals on shopping sites like Tmall do not appear randomly. They appear when the algorithm hopes to lure the customer particularly effectively. For digital content without fixed costs, on the other hand, the algorithms systematically sound out the individual customer’s willingness to pay. The kings of data collection, however, are search engines like Baidu and Google. They know exactly what users are interested in via their search queries, and they know what they want to buy long before they actually place an order. They already know in spring the planned travel destinations for the summer. They then base their advertising on this. The philosopher Noah Yuval Harari calls the organizational form of the future world “Dataism”.
The EU and the US also want to regulate the handling of data and algorithms. In practice, however, they are currently finding it more difficult than China to put the private sector on a short leash. In the EU, too, the regulation of “manipulative artificial intelligence” is indeed under discussion. But there are no plans here for as deep an insight into the inner workings of the platforms as there is in China.
In the overall picture of data protection, however, the EU is still ahead. Because, as always, the Chinese rules only affect the free economy. The state can do whatever it wants with citizens’ data. The EU’s draft AI regulation, on the other hand, even proposes to make a social scoring system explicitly illegal. In fact, for China’s government, introducing such a system is one of the most important ongoing projects. To use an AI to turn citizens into well-behaved citizens. In short, to manipulate them.
So while China is in the process of giving its citizens sharp tools against data-collecting companies, the state explicitly – and increasingly exclusively – reserves the use of those tools. The instruments of rule are supposed to be in the hands of the party. Researcher Toner nonetheless thinks the sweeping Chinese rules are a huge step forward. “It will be fascinating to see how they work out in practice.” What works, she says, will probably be widely adopted.
The renowned social scoring expert Rogier Creemers from Leiden University, meanwhile, is disappointed that the draft does not address a known weakness of Chinese regulations. The fines for violations are set far too low. The maximum fine is 30,000 yuan (4000 euros). The internet giants only laugh at this. Tencent, for example, reported 123 billion yuan in profits last year (16 billion euros).
The cap goes back to a rule from 1996. At that time, the legislature collected it for fines against companies. But regardless of this easily repairable design flaw, the law sets a strict legal framework for algorithms for the first time and is also pioneering work worldwide.
In the year 2034, the United States and China become embroiled in a series of military conflicts that escalate into a devastating tactical nuclear war. Other countries – including Russia, Iran, and India – get involved. Suddenly, the world is on the verge of World War III.
This is the scenario described in 2034: A Novel of the Next World War an engrossing work of speculative fiction by NATO’s former supreme commander, Admiral James Stavridis, and Elliot Ackerman. The book is part of a growing chorus now warning that a clash between the world’s current rising power and the incumbent one is almost unavoidable. Graham Allison of Harvard University has dubbed this phenomenon the Thucydides Trap, recalling the ancient Greek historian’s observation that, “It was the rise of Athens and the fear that this instilled in Sparta that made war inevitable.”
True, throughout history, when a rising power has challenged a ruling one, war has often been the result. But there are notable exceptions. A war between the US and China today is no more inevitable than was war between the rising US and the declining United Kingdom a century ago. And in today’s context, there are four compelling reasons to believe that war between the US and China can be avoided.
First and foremost, any military conflict between the two would quickly turn nuclear. The US thus finds itself in the same situation that it was in vis-à-vis the Soviet Union. Taiwan could easily become this century’s tripwire, just as the “Fulda Gap” in Germany was during the Cold War. But the same dynamic of “mutual assured destruction” that limited US-Soviet conflict applies to the US and China. And the international community would do everything in its power to ensure that a potential nuclear conflict did not materialize, given that the consequences would be fundamentally transnational and – unlike climate change – immediate.
A US-China conflict would almost certainly take the form of a proxy war, rather than a major-power confrontation. Each superpower might take a different side in a domestic conflict in a country such as Pakistan, Venezuela, Iran, or North Korea, and deploy some combination of economic, cyber, and diplomatic instruments. We have seen this type of conflict many times before: from Vietnam to Bosnia, the US faced surrogates rather than its principal foe.
Second, it is important to remember that, historically, China plays a long game. Although Chinese military power has grown dramatically, it still lags behind the US on almost every measure that matters. And while China is investing heavily in asymmetric equalizers (long-range anti-ship and hypersonic missiles, military applications of cyber, and more), it will not match the US in conventional means such as aircraft and large ships for decades, if ever.
A head-to-head conflict with the US would thus be too dangerous for China to countenance at its current stage of development. If such a conflict did occur, China would have few options but to let the nuclear genie out of the bottle. In thinking about baseline scenarios, therefore, we should give less weight to any scenario in which the Chinese consciously precipitate a military confrontation with America. The US military, however, tends to plan for worst-case scenarios and is currently focused on a potential direct conflict with China – a fixation with overtones of the US-Soviet dynamic.
This raises the risk of being blindsided by other threats. Time and again since the Korean War, asymmetric threats have proven the most problematic to national security. Building a force that can handle the worst-case scenario does not guarantee success across the spectrum of warfare.
The third reason to think that a Sino-American conflict can be avoided is that China is already chalking up victories in the global soft-power war. Notwithstanding accusations that COVID-19 escaped from a virology lab in Wuhan, China has emerged from the pandemic looking much better than the US. And with its Belt and Road Initiative to finance infrastructure development around the world, it has aggressively stepped into the void left by US retrenchment during Donald Trump’s four-year presidency. China’s leaders may very well look at the current status quo and conclude that they are on the right strategic path.
Finally, China and the US are deeply intertwined economically. Despite Trump’s trade war, Sino-American bilateral trade in 2020 was around $650 billion, and China was America’s largest trade partner. The two countries’ supply-chain linkages are vast, and China holds more than $1 trillion in US Treasuries, most of which it cannot easily unload, lest it reduce their value and incur massive losses.
To be sure, logic can be undermined by a single act and its unintended consequences. Something as simple as a miscommunication can escalate a proxy war into an interstate conflagration. And as the situations in Afghanistan and Iraq show, America’s track record in war-torn countries is not encouraging. China, meanwhile, has dramatically stepped up its foreign interventions. Between its expansionist mentality, its growing foreign-aid program, and rising nationalism at home, China could all too easily launch a foreign intervention that might threaten US interests.
Cyber mischief, in particular, could undercut conventional military command-and-control systems, forcing leaders into bad decisions if more traditional options are no longer on the table. And Sino-American economic ties may come to matter less than they used to, especially as China moves from an export-led growth model to one based on domestic consumption, and as two-way investment flows decline amid escalating bilateral tensions.
A “mistake” on the part of either country is always possible. That is why diplomacy is essential. Each country needs to determine its vital national interests vis-à-vis the other, and both need to consider the same question from the other’s perspective. For example, it may be hard to accept (and unpopular to say), but civil rights within China might not be a vital US national interest. By the same token, China should understand that the US does indeed have vital interests in Taiwan.
The US and China are destined to clash in many ways. But a direct, interstate war need not be one of them.
Charles C. Krulak, a retired four-star general, is a former commandant of the US Marine Corps and former president of Birmingham-Southern College. Alex Friedman is the co-founder of Jackson Hole Economics and a former chief financial officer of the Bill & Melinda Gates Foundation.
Copyright: Project Syndicate, 2021.
www.project-syndicate.org
The relationship between the individual and the judicial system is an essential dimension in every society. Lawyer Matthias Schroeder provides inside knowledge on the situation in China. He was born in Beijing and this is where he practices law today. Schroeder sees a system that most Chinese citizens find perfectly adequate. While the law firm founder certainly recognizes the weaknesses of China’s current legal system, political influence on most disputes is minimal. The much-dreaded injustice is largely felt by those least involved in politics. In our CEO Talk, Schroeder describes why the majority of Chinese citizens, who have been socialized in China, are actually quite content with the legal system. After all, it is now already much more developed than it was during the previous generation.
But the constant development of laws also brings new challenges for the Communist Party. It changes thinking and raises the bar. One example is the new data protection law. It mandates in detail what China’s economy is allowed to do with customers’ data, or rather, what they are no longer allowed to do. However, it is only a small step from here to the question of what the state actually intends to do with citizens’ data. “The genie is out of the bottle,” says Schroeder.
Many experts agree that China’s data protection in the commercial area is now overtaking even that of the EU and US. The government just isn’t afraid to get its hands dirty. In today’s analysis, we look at the ongoing regulation of algorithms. Chinese citizens will be able to access data points and assessments on their preferences stored by service providers. This is a right that many Germans would also like when it comes to their data stored by Google, Amazon and Facebook.
Have a pleasant week!
Disclaimer. This interview excerpt was translated into English and is not considered an official translation by any party involved.
Matthias Schroeder is a triplet and yet quite unique: a German lawyer who was born in Beijing and grew up mostly there. The reason is simple. The parents of the 46-year-old were East German diplomats. They played tennis with George Bush and his wife Barbara in Beijing in the 1970s. After all, the former U.S. president was the unofficial U.S. ambassador to Beijing at the time. Schroeder lived here all his life – the only one of the three brothers.
The 1.97 meters tall, athletic lawyer studied law in Cape Town and Berlin and, after one or two stops in China, set up his own law company in Beijing: Ding Schroeder & Partner. He also operates the website Law-China.de. Outside his work, he is part of the board of the German Society for Speed Reading and is also a fitness trainer. Schroeder is also the only German lawyer in China who appears in court. In short: Schroeder knows how the law in China works.
Mr. Schroeder, is China a constitutional state?
That depends on your definition of a constitutional state. I understand it as a state under the rule of law, in which the law prevails and not individual persons. That’s how Chinese leaders would put it. I’d be a little more careful. But still, China is changing. The governance by officials is gradually being replaced by the rule of law, in other words, it shifts towards the definition of a constitutional state we Europeans tend to have.
What is still missing on the way in that direction?
In Germany, the legislator himself is bound by the law. In China, not yet to the same extent. Even the party is not slavishly bound by the law. In Chinese law, you can still experience surprises, because court judges can not yet interpret the law in everyday life as freely as here in Germany. One major difference: in Germany, a judge can definitely stand up to the legislature with their interpretation of the law, whenever it may not be to his liking. That is still a rare thing in China.
In China, the judges wait until the party tells them how to interpret the law.
In any case, he cannot rush a verdict without first having to review it himself. We have also had cases where the initial court has referred the case to the Court of Appeal before a final decision was made, so as not to issue a decision with which the next higher court disagrees. While this is pragmatic, it has delayed the trial by almost a year.
So as a lawyer, you look at the party or the next instance first?
Yes. That’s because that’s what judges do as well. And yet, in other respects, the leeway is even greater than in Germany. Whereas in Germany every detail is covered in extensive commentary literature – the German Civil Code is over 100 years old – most Chinese laws are much more recent and the literature is not as extensive. Chinese judges, therefore, ask lawyers to collect precedents and present them to the court for guidance. This gives one an opportunity to point out this and that and be met with openness, even gratitude. After all, Chinese judges are lawyers and not politicians. Basically, they want to discuss legal matters, not political ones, especially since the level of legal texts is becoming more reliable.
Is this development towards more reliability happening because people are putting pressure, want more legal clarity?
I would put it this way: The state says it has a monopoly on settling disputes when people are no longer able to come to an agreement themselves. If the state can’t quite manage that, people become discontent. This creates social unrest, which the state doesn’t want. So there is pressure for development, for laws and procedures citizens perceive as unfair.
Often the state and the party have other interests than the people. How does this come together?
It is a constant balancing act between the party’s desire to achieve its goals and the people’s desire for justice. Neither interest can prevail unhindered.
But aren’t the state and the CCP growing in power then?
Yes and no. In civil disputes, for example between neighbors, this is no longer the case. In other areas, the relationship between community and individual, the state is taking a closer look.
How do people react to this?
It only bothers them when it affects them personally. One rarely encounters an abstract sense of being affected in China. There is no outcry here when general measures are taken. The control of information flow, but above all economic prosperity, play a major role. If people are largely free to do whatever they want, then they are less interested in constitutional issues and find it easier to deal with the occasional imposition by the authorities. Something we underestimate when looking at it from an outside perspective is that in everyday life, civil law has a much higher value, and it is much less politically burdened than we think.
Do the Chinese have a different sense of justice than Germans?
In the West, at least this is my experience, the individual’s sense of justice is stronger. People are quicker to shout, “But that’s unfair!” In China, my experience is that the question of whether something is fair is delegated to the lawyer because the sense of equity is not as developed. Just like how you leave it for your doctor to decide how sick you are. Or to the mechanic whether the car engine is broken.
Why is that?
People in China still live more in roles. They are sons or fathers. Teachers or students. Managers or assistants. They are also addressed that way and then behave accordingly. It even goes as far as that grown people only tell their parents what normally children would tell their parents. It’s about the role, not about feelings.
For us, it used to be similar
And when you are asked what fairness is, you are asked who you are, what you expect from the world and what you want. That’s much more than a role. In domestic relations lawsuits, we have resorted to conducting such negotiations between lawyers, because individuals could not contribute much at all to the question of fairness and equitable resolution.
Will people discard this role-playing as they move on, or is it too deeply embedded in their culture?
That is a difficult question. What is cultural, thus sits deeper, and what is social development and shifts more easily. It’s hard to separate. Perhaps one observation helps: In the past, people defined themselves more by their role; today, more and more Chinese define themselves by consumption, i.e. what clothes or watches they wear and what car they drive.
So the roll is getting weaker.
Yes, or it will be consumer roles. In the West, at least, things are already different. Here, people actively try to avoid role clichés. I don’t claim to be a lawyer, I work as a lawyer, I want to say I’m much more than that, more diverse. I’m also a fitness instructor. I also have a taste in art. But I’m not as deep in a consumer role as in China. The goal is even to avoid a role. The Chinese middle class isn’t quite there yet. You see that more in Japan or South Korea. With strange results: many resorts to wearing Hello Kitty in order not to conform, although this creates new conformity again.
The party, however, needs people playing a role.
At least it is easier to control ants than a bag of fleas. Or in terms of people: Controlling atheists is harder than controlling fervent followers of a religion. That’s why the CCP needs the spiritual superstructure.
At the same time, China’s success is based on trial and error. On pragmatism established by Deng Xiaoping in particular. How does this play out?
The common ground is that for all its pragmatism or political faith, it needs a helmsman to keep the ship from running ashore. For China, Russia in the 1990s is an example of what can happen when a country goes off course.
It is clear that the party thinks this way. But does the population also think so?
It’s not something that is sought or craved. But it makes life easier. You sleep more peacefully, you need less energy when you’re told how to see the world. That’s why many, probably even the majority, don’t mind when the party has their way.
But many also want to have their say. Many people in Hong Kong or in Xinjiang, for example.
Certainly. That is important. But they are still minorities. The majority of society doesn’t look their way because it doesn’t affect them. On the contrary, provocatively speaking, the minorities even disturb the flow of the majority’s current. You can criticize this point of view. But you shouldn’t underestimate it when it comes to the human rights violations in Xinjiang and Hong Kong. The majority does not want to deal with it, it even finds it disturbing. Confucius once said: What is the fate of the child of a foreign mother to me? Such sentiments go against our Western understanding of compassion, but possibly describe Chinese society.
Does this indifference also apply to data protection?
The awareness of Chinese authorities collecting too much data is not yet widespread. This is also due to censorship, but even more so because most people only question such developments when they personally experience the disadvantages. The disadvantages in China are currently mainly felt by dissidents, NGOs, journalists and lawyers. By ordinary citizens, less so.
But aren’t these disadvantages becoming apparent to the social scoring system currently being established?
Possibly. But it’s hardly developed yet. It does not yet play a role in the daily lives of most Chinese citizens. And it can also have the opposite effect. It could happen that this scoring system triggers a race for conformity, for being the model student. At least that’s what the party is hoping for, and it’s not entirely wrong. The biggest problem with data collection is that people can be manipulated with the data. This is as true in the West as it is in China. In China, it is politically motivated, in the West it is economic. It’s not about values, but maximizing profits. When you see Amazon making better suggestions for gifts than your wife or husband, you see where the path is headed – even in China. It’s about leading people in a certain direction without them realizing it. Social scoring, on the other hand, is very transparent.
Won’t people fight back sooner than it might seem now? How much longer can the state keep the lid on it?
I studied law in systemic change in South Africa and conducted field research in various African societies. The question was how strong democratic institutions must look like? The answer was surprising: it’s not so much how the institutions are structured, but that people want to deal with them. There’s no point in introducing democracy to a country where people don’t want to or can’t make decisions about developments that don’t specifically affect them. But that is the essence of democracy.
Of course, every dictator is happy about the result of this study and says “See, we have to rule for another 30 years”.
That may be so. But a research result cannot be reprehensible just because someone can misuse it. More importantly, it is the socialization of the people that matters first, and only then the structure of the institutions. This is why the responsibility lies with the people. This responsibility is very closely linked to their understanding of what a human being is.
Is the new Chinese data protection law that just came into effect a sign that the concept of a human being is changing in China?
If there was no need for this among the population, the legislator would not have bothered. But you have to look at it in a more nuanced way. It’s not yet about data as a whole. What bothers people right now is how private companies handle the data, not so much how the state handles it. But that’s an important step nonetheless. The state wants to prevent the handling of data in business from unsettling consumers; nothing more. The new idea here is, and it is a powerful one, that people should be able to decide for themselves who earns money with their data and how. As I said, this relates to consumption for now, but the genie is out of the bottle. Even if the state says it can use the data in the case of national security.
What’s it like in Germany?
The German Basic Law states that the free democratic basic order cannot be abolished by any law or constitutional amendment. That does not exist in China. A big difference.
So there is a different balance in the relationship between the individual and the community in China than in the West?
Yes, it tends more towards the community. However, this does not only come from the top, from the dictators but also has to do with the fact that people in China possibly see themselves quite differently, more as part of a community. In Europe, on the other hand, people do not see themselves as part of a community, but rather as an individual or as part of another minimal community, a smaller, more unique group, but not so much as part of a people.
Did this issue also play a role in the fight against Covid?
A lot of people say that. But in reality, it is more complex than that. Basically, a Chinese person may not care as much whether he infects another Chinese or not. Before Covid, the Chinese people may have worn masks to protect themselves, not to protect others. But when it is mandated, when it is a matter of the community, it is much easier for individuals to submit. It is less perceived as compulsion than as a duty. It’s not as much of a matter of empathy.
This makes it easier for authorities to enforce even unpopular measures.
Yes, because the Chinese don’t ask as many questions: Why me of all people? Instead, they fulfil their role as citizens when it is required – with a naturalness that amazes people in the West.
Under these conditions, what are the major legal challenges of the coming years?
China has created an enormous amount of laws in the past few years. They have a completely new corporate law. They have a completely new civil code, a new tax code. Now they are building data protection legislation. The biggest challenge now is the incredibly fast technological development. For example, how do I legally deal with artificial intelligence or its sub-sector, autonomous driving? This has to be regulated, and there is hardly any precedence in the West. This is new territory that is changing every day. Many issues in the digital economy are also new. Our legal thinking is dominated by the mindset that a product is manufactured and can then be sold with added value. Like a car, for example.
And today?
Today, we produce digital products that are developed once and can then be duplicated and sold millions of times almost free of charge. As a result, individuals or companies suddenly become incredibly rich without having to work or sacrifice their lives. Bill Gates is the pioneer of this development. Is this fair? Is it in the interest of the community? Chinese and Western lawyers are currently dealing with these questions in parallel. The tech crackdown in China has a lot to do with this question. It will be very exciting to see what different or common results lawyers will find. And one thing is already clear: the diversity of solutions will increase due to the new player China.
What makes China different?
The Chinese government clearly sees that in Western democracies, large corporations also have increasing political power and can undermine existing jurisdiction. The Chinese state does not want to grant corporations this power. In the West, people are more phlegmatic about this.
So China is going for a planned economy?
This has nothing to do with a planned economy. It is about regulating the compatibility of the economy with the general public. This is not only a new territory for China but also a new territory for the world. Marx and Engels are of little help here. Instead, one can only go step by step, groping through the river. Outdated concepts like planned economy tend to slow things down.
What does the Chinese leadership want?
It wants controllable prosperity in a society with as few imbalances as possible. China is feeling its way towards this and is not immune to setbacks. It is a blind flight for which there is no theory.
Is that what fascinates you about China?
I’m interested in the differences in cultures. You learn a lot more about yourself when dealing with people who are culturally and socially distant than by always talking to your own people about your own things.
You can watch the full conversation in German here.
The manipulation of our rather simple human brains by artificial intelligence is currently the big topic among futurologists and regulators. Now China is setting new standards as part of its data protection offensive. A new draft law provides for an enormous strengthening of citizens’ rights against manipulative algorithms. However, as always, the provisions only apply to business, not the government. The stated goal of the bill is to “uphold mainstream values”. Digital services are supposed to ” vigorously disseminate positive energy, and advance the use of algorithms upwards and in the direction of good”.
On Friday, the Cyberspace Affairs Commission and the Department of Justice posted a draft bill online. The ministry is calling on the public to comment by September 26. An English translation by the DigiChina initiative at Stanford University can be found here.
Privacy specialist Kendra Schaefer of research service Trivium thinks the proposed rules are even stricter than those in Europe. “As far as I’m concerned, this policy marks the moment that China’s tech regulation is not simply keeping pace with data regulations in the European Union but has gone beyond them,” she wrote on Twitter.
Specifically, the draft provides for the following rules, all of which will be tough nuts to crack for Internet services:
An algorithm is actually a calculation path in individual steps. In computer science, the term is used for program sequences. Derived from this, the term currently stands for a new concept in the world of data regulation. Computer programs evaluate data and use decision paths to present customized content to users. So it’s an algorithm that recommends the next book for us to read on Amazon. Often, it matches readers’ tastes quite well.
China’s internet services, however, have advanced the application of algorithms to a piece of art. “Like its international counterpart TikTok, Douyin is famous for its powerful recommendation algorithm,” writes expert Helen Toner of Georgetown University’s Center for Security and Emerging Technology. In fact, a good part of the internet giant’s business model is based on clever data mining. The new regulation will definitely make their business more difficult.
Mobile games from providers like Tencent let players win and lose in designated patterns. In this way, they create the greatest possible motivation to keep at it. They don’t do this in the same way for everyone but adapt the motivation curve to individual reactions. One person might be driven to stick with it by winning frequently, but for another, it would be boring because they are looking for a greater challenge. Also, special offers for “valuable” items in the games like “jewels” that can be used to buy benefits often come right when the sales opportunity is greatest.
Even the offers and special deals on shopping sites like Tmall do not appear randomly. They appear when the algorithm hopes to lure the customer particularly effectively. For digital content without fixed costs, on the other hand, the algorithms systematically sound out the individual customer’s willingness to pay. The kings of data collection, however, are search engines like Baidu and Google. They know exactly what users are interested in via their search queries, and they know what they want to buy long before they actually place an order. They already know in spring the planned travel destinations for the summer. They then base their advertising on this. The philosopher Noah Yuval Harari calls the organizational form of the future world “Dataism”.
The EU and the US also want to regulate the handling of data and algorithms. In practice, however, they are currently finding it more difficult than China to put the private sector on a short leash. In the EU, too, the regulation of “manipulative artificial intelligence” is indeed under discussion. But there are no plans here for as deep an insight into the inner workings of the platforms as there is in China.
In the overall picture of data protection, however, the EU is still ahead. Because, as always, the Chinese rules only affect the free economy. The state can do whatever it wants with citizens’ data. The EU’s draft AI regulation, on the other hand, even proposes to make a social scoring system explicitly illegal. In fact, for China’s government, introducing such a system is one of the most important ongoing projects. To use an AI to turn citizens into well-behaved citizens. In short, to manipulate them.
So while China is in the process of giving its citizens sharp tools against data-collecting companies, the state explicitly – and increasingly exclusively – reserves the use of those tools. The instruments of rule are supposed to be in the hands of the party. Researcher Toner nonetheless thinks the sweeping Chinese rules are a huge step forward. “It will be fascinating to see how they work out in practice.” What works, she says, will probably be widely adopted.
The renowned social scoring expert Rogier Creemers from Leiden University, meanwhile, is disappointed that the draft does not address a known weakness of Chinese regulations. The fines for violations are set far too low. The maximum fine is 30,000 yuan (4000 euros). The internet giants only laugh at this. Tencent, for example, reported 123 billion yuan in profits last year (16 billion euros).
The cap goes back to a rule from 1996. At that time, the legislature collected it for fines against companies. But regardless of this easily repairable design flaw, the law sets a strict legal framework for algorithms for the first time and is also pioneering work worldwide.
In the year 2034, the United States and China become embroiled in a series of military conflicts that escalate into a devastating tactical nuclear war. Other countries – including Russia, Iran, and India – get involved. Suddenly, the world is on the verge of World War III.
This is the scenario described in 2034: A Novel of the Next World War an engrossing work of speculative fiction by NATO’s former supreme commander, Admiral James Stavridis, and Elliot Ackerman. The book is part of a growing chorus now warning that a clash between the world’s current rising power and the incumbent one is almost unavoidable. Graham Allison of Harvard University has dubbed this phenomenon the Thucydides Trap, recalling the ancient Greek historian’s observation that, “It was the rise of Athens and the fear that this instilled in Sparta that made war inevitable.”
True, throughout history, when a rising power has challenged a ruling one, war has often been the result. But there are notable exceptions. A war between the US and China today is no more inevitable than was war between the rising US and the declining United Kingdom a century ago. And in today’s context, there are four compelling reasons to believe that war between the US and China can be avoided.
First and foremost, any military conflict between the two would quickly turn nuclear. The US thus finds itself in the same situation that it was in vis-à-vis the Soviet Union. Taiwan could easily become this century’s tripwire, just as the “Fulda Gap” in Germany was during the Cold War. But the same dynamic of “mutual assured destruction” that limited US-Soviet conflict applies to the US and China. And the international community would do everything in its power to ensure that a potential nuclear conflict did not materialize, given that the consequences would be fundamentally transnational and – unlike climate change – immediate.
A US-China conflict would almost certainly take the form of a proxy war, rather than a major-power confrontation. Each superpower might take a different side in a domestic conflict in a country such as Pakistan, Venezuela, Iran, or North Korea, and deploy some combination of economic, cyber, and diplomatic instruments. We have seen this type of conflict many times before: from Vietnam to Bosnia, the US faced surrogates rather than its principal foe.
Second, it is important to remember that, historically, China plays a long game. Although Chinese military power has grown dramatically, it still lags behind the US on almost every measure that matters. And while China is investing heavily in asymmetric equalizers (long-range anti-ship and hypersonic missiles, military applications of cyber, and more), it will not match the US in conventional means such as aircraft and large ships for decades, if ever.
A head-to-head conflict with the US would thus be too dangerous for China to countenance at its current stage of development. If such a conflict did occur, China would have few options but to let the nuclear genie out of the bottle. In thinking about baseline scenarios, therefore, we should give less weight to any scenario in which the Chinese consciously precipitate a military confrontation with America. The US military, however, tends to plan for worst-case scenarios and is currently focused on a potential direct conflict with China – a fixation with overtones of the US-Soviet dynamic.
This raises the risk of being blindsided by other threats. Time and again since the Korean War, asymmetric threats have proven the most problematic to national security. Building a force that can handle the worst-case scenario does not guarantee success across the spectrum of warfare.
The third reason to think that a Sino-American conflict can be avoided is that China is already chalking up victories in the global soft-power war. Notwithstanding accusations that COVID-19 escaped from a virology lab in Wuhan, China has emerged from the pandemic looking much better than the US. And with its Belt and Road Initiative to finance infrastructure development around the world, it has aggressively stepped into the void left by US retrenchment during Donald Trump’s four-year presidency. China’s leaders may very well look at the current status quo and conclude that they are on the right strategic path.
Finally, China and the US are deeply intertwined economically. Despite Trump’s trade war, Sino-American bilateral trade in 2020 was around $650 billion, and China was America’s largest trade partner. The two countries’ supply-chain linkages are vast, and China holds more than $1 trillion in US Treasuries, most of which it cannot easily unload, lest it reduce their value and incur massive losses.
To be sure, logic can be undermined by a single act and its unintended consequences. Something as simple as a miscommunication can escalate a proxy war into an interstate conflagration. And as the situations in Afghanistan and Iraq show, America’s track record in war-torn countries is not encouraging. China, meanwhile, has dramatically stepped up its foreign interventions. Between its expansionist mentality, its growing foreign-aid program, and rising nationalism at home, China could all too easily launch a foreign intervention that might threaten US interests.
Cyber mischief, in particular, could undercut conventional military command-and-control systems, forcing leaders into bad decisions if more traditional options are no longer on the table. And Sino-American economic ties may come to matter less than they used to, especially as China moves from an export-led growth model to one based on domestic consumption, and as two-way investment flows decline amid escalating bilateral tensions.
A “mistake” on the part of either country is always possible. That is why diplomacy is essential. Each country needs to determine its vital national interests vis-à-vis the other, and both need to consider the same question from the other’s perspective. For example, it may be hard to accept (and unpopular to say), but civil rights within China might not be a vital US national interest. By the same token, China should understand that the US does indeed have vital interests in Taiwan.
The US and China are destined to clash in many ways. But a direct, interstate war need not be one of them.
Charles C. Krulak, a retired four-star general, is a former commandant of the US Marine Corps and former president of Birmingham-Southern College. Alex Friedman is the co-founder of Jackson Hole Economics and a former chief financial officer of the Bill & Melinda Gates Foundation.
Copyright: Project Syndicate, 2021.
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