Government beyond law: exploring charity regulation and spaces of order in China

Thesis

This thesis examines the regulatory landscape relating to private orphanages, both foreign and domestically run, in China, and the formal and informal relationships between such homes and government which structure this space of order. Part A introduces the contextual factors shaping the gradual socialisation and privatisation of charitable activity generally, and the child welfare-specific social, economic and cultural dynamics influencing the emergence of private orphanages. Parts B and C set out the ethnographic findings of field-work examining the practical operations of private orphanages, and a theoretical analysis of the various interactions occurring with government orphanages, and local and central officials. It is shown that the ostensible government monopoly on institutional care of orphans, established in law and policy and consistent with the objective of maintaining tight control over civic organisations and religious-based and foreign-led activities, is belied by a proliferation of private orphanages emerging to address gaps in state welfare provision. This has led to the emergence of a delicate balance between top-down official discourse, rhetoric and law, and bottom-up pragmatic considerations. Further, the prima facie 'missing role' of the state in law, regulation and policy-making is contradicted in practice by evidence of a complexity of highly paternalistic state-orphanage relationships occurring beyond the normative framework of official laws and policies. Such extra-legal state-society interaction is characterised by informal, flexible and paternalistic negotiations with local officials, and mediated by structures of power and capacity. 'Law beyond government' and 'government beyond law' are central features of the multidimensional maintenance of this space of order, and point to several defining points of distinction of law as a cultural notion in the Chinese context, including a marked preoccupation with legitimacy over legality and paternalistic discipline and discretion over impartial adjudication.

Authors: Kloeden, A; Anna Kloeden

• Publication date: 2011
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: non-governmental organisations; regulation; China; orphan and child welfare
• Subjects: Socio-legal studies; Comparative Law