William P. Alford & Yuanyuan Shen, Have You Eaten, Have You Divorced? Debating the Meaning of Freedom in Marriage in China, in Realms of Freedom in Modern China 234 (William C. Kirby ed., 2004).
Abstract: A great deal of discussion about freedom in the People's Republic of China has proceeded on certain assumptions about the role of the state and about law's place in helping define it. At the heart of these assumptions is the idea that the cause of freedom in China will best be advanced through the state's retrenchment and a concomitant ceding of power to non–state actors, particularly with respect to economic and social matters. This notion is perhaps most obvious in calls for the promotion of greater economic freedom via both the "privatization" of state– owned enterprise and an increasing reliance on market forces, but it also informs the view that such measures are or soon will be leading to a marked growth in political freedom. And it undergirds the conviction of most observers that what is termed the rise of civil society will perforce enhance personal freedom in China. As the noted Chinese scholar Liu Junning observed in a recent essay extolling Hayek, "almost all of those who shape public opinion in China are liberals [as] classical liberalism now dominates China's intellectual landscape." Law occupies a prominent position in this vision, being increasingly seen in both academic and policy circles as critical to the attainment for Chinese of fuller economic, political, and social freedoms. In part, the prominence accorded law is attributable to its perceived potential, however imperfectly realized to date in the PRC, to facilitate the above described transfer of power from state to society by limiting the spheres of life over which the former has authority and providing constraints as to the manner in which such authority is to be exercised. No less importantly, law is extolled for the vital role it has to play, once the state has receded, in establishing the proverbial "level playing field" on which a new society is to be grounded. In contrast to the avowedly political and highly particularistic manner in which the Chinese state historically reached into citizens' lives, law is commended for being facilitative, rather than determinative, providing a neutral framework through which citizens, each endowed with the same rights and each entitled to invoke the uniform procedural protection that formal adjudication is intended to provide, may work things out for themselves.