How China’s laws and social credit system actually work, explained by Jeremy Daum

Domestic News

Jeremy Daum, a scholar of Chinese law who runs the China Law Translate website, appeared on the Sinica Podcast to discuss common misconceptions about legal systems in China.

law in china
Illustration for SupChina by Derek Zheng

Below is a complete transcript of the Sinica Podcast with Jeremy Daum.

Kaiser Kuo: Welcome to the Sinica Podcast, a weekly discussion of current affairs in China produced in partnership with SupChina. Subscribe to SupChina’s daily Access newsletter to keep on top of all the latest news from China from hundreds of different news sources. Or check out all the original writing on our site at supchina.com. We’ve got reported stories, editorials, regular columns, as well as a growing library of podcasts. We cover everything from China’s fraught foreign relations to its ingenious entrepreneurs, from the ongoing repression of Uyghurs and other Muslim people in China’s Xinjiang region to the tectonic shifts underway as China rolls out what we are calling the Red New Deal. It’s a feast of business, political, and cultural news about a nation that is reshaping the world. We cover China with neither fear nor favor.

I’m Kaiser Kuo coming to you from Chapel Hill, North Carolina.

My guest today is Jeremy Daum, who is a senior research scholar in law and a senior fellow at the Paul Tsai China Center. Ordinarily, Jeremy is based in Beijing and he’s presumably heading back like many other people intend to once all of this is over and China eventually reopens. Meanwhile, he is hanging out and doing his important work from his U.S. home in Michigan. Jeremy works on criminal procedure law, but people in the China field probably know him best for the yeoman’s work that he’s done tirelessly for many, many years now, chinalawtranslate.com, which he founded I believe eight or nine years ago and to which he is still contributing editor. It’s a fantastic repository of very fluent English translations of important Chinese legal documents covering everything from civil administrative law to criminal procedural law, environmental law, labor law, intellectual property law, internet-related law and regulations, and even somewhat niche areas like disability law.

Three years ago or so, Jeremy suddenly became a go-to authority on China’s social credit system, challenging many of the ideas that had been popularized in the media and that to his consternation — and mine — persist today. We’ll give him a chance to set everyone straight on what that is and isn’t, and we’ll talk about a number of other issues related to law and how the study of China’s legal system contributes to our overall understanding of China.

My sense is that this is especially important right now because China is in the midst of some major changes, a really gigantic sea change, really. And that will make itself really manifest through the promulgation and enforcement, presumably, of new laws and regulations that basically affect every sector of society. So, in a very real sense, today’s show does fall under this rubric of “thinking about thinking about China,” which we’ve been doing in the last few shows. We’ll talk about why it is that an understanding of law and its place in Chinese politics and society remains as important, perhaps even more important than ever.

Jeremy is someone with a good grasp of how narratives about China and especially on law are formed among observers of China, and how they’re deployed. And really, he’s one of the people I often turn to for his deeply informed and very savvy views of what’s happening. Jeremy Daum, welcome to Sinica.

Jeremy Daum: Thanks so much, Kaiser, I appreciate the good, kind introduction. And the shout-out to China Law Translate.

Kaiser: We’ll start off, actually, by talking about China Law Translate, because it’s something that I think people really need to know about. But weirdly, this is your first time on the show. We’ve actually talked about having you on forever. We were together on a panel in Germany, I think at some point, was that 2019 or something, right?

Jeremy: Yeah, in Berlin. About social credit. That’s right.

Kaiser: So, I definitely want you to talk, though, first about China Law Translate — about how it started, about how many individuals have actually contributed translations, how you run the thing. And also, importantly, how people can get involved. Anything else that our listeners ought to know about your great enterprise.

Jeremy: Yeah, I never intended it to be such a preoccupation of my time. Basically, I had realized that people were making translations of Chinese law and they weren’t do it as collaboratively as they could. And I tried to create a platform — it’s Wiki style, s anybody who logs on can begin to translate sentence by sentence using the site software. It turns out that it’s a fairly niche thing to be able to translate Chinese law. I don’t think I appreciated how limited the talent pool that is able to do it is. You need to have an understanding of both Chinese law and the U.S. law to get the terminology right. And so, we haven’t had a huge number of consistent translators, but we have people who join us for while and work on some documents or contribute things. But we’ve managed to get quite a community of followers because it turns out, there’s a real need for translations of these legal materials.

Kaiser: Yeah, absolutely, there is. Great. Am I correct in saying that you started it about eight or nine years ago?

Jeremy: That feels about right, with COVID time is a bit of a blur. Yeah, add two or three years to everything. The last few don’t count. But, yeah, I think that’s about right.

Kaiser: Okay, great. Let’s jump in now with the real questions. And I’m going to start with something that I’m sure you’ve encountered from people perhaps, even from people who, really ought to know better, from people in the China space. Why bother with trying to understand Chinese law when there isn’t rule of law in China, in the first place? I mean, does law even matter? I mean, how do you answer that when you’ve heard it as you doubtless have? Why does law matter when it comes to China?

Jeremy: Yeah, regrettably, I have heard that. Law matters. We say that China doesn’t have rule of law, but has rule by law. That’s the go-to phrase everyone likes to say. But even with rule by law, meaning that there’s a series of rules, everyone’s expected to follow as opposed to rule of law, where people have rights and equality before the law and the right to challenge every other party, including the government through the law. But if it’s just rule by law, understanding what rules are put forward, matter. I have found that when you go through all of the volumes of regulations and laws that come out every week in China, less surprises you about what’s happening in China. A lot of it is telecast in these documents. They pretty bare what’s going to happen.

Kaiser: That’s great, Jeremy, but there will be people who are going to point to Xinjiang and to the hundreds of thousands, perhaps upwards of a million, according to many reports, of people who were detained in what you yourself have described as extra-legal fashion. I mean, a lot of folks would note this and say, “Well, now, isn’t that pretty much all the evidence you need that law just simply doesn’t matter to this dictatorial party state.”

Jeremy: Yeah, I think it’s an example of why law does matter actually. In looking at the Xinjiang situation, when I’d first heard about it, I was able to go to the relevant documents and find that while detention was extra-legal, and that there was no legal basis for actually depriving people of their physical liberty, locking them up, there was all of the indication of what the policies were going to be there for ethnic discrimination. There were these de-extremification or de-radicalization regulations that gave a list of what behaviors would be considered to be radical and needing to be addressed by the state. And that included things like abnormally long beards. And it was clearly, designed to be all inclusive and to make it so that everybody showing any religious tendencies could be considered to have a problem with radicalization. But moreover, being able to analyze the law and say that this detention was at extra-legal, was something that China responded to.

China wants to be in compliance with its own laws. It can change its laws at any time, of course, but it wants to maintain that fig leaf of legality. And so, the documents were revised at some point, although inadequately, to fully justify detention and explanations were given. But it did — having a domestic legal basis to question what was happening, allowed us to ask questions more directly and clearly, and to get answers sometimes.

Kaiser: So, a couple of things to take away from that out, and China does telegraph intention in a lot of the regulation and the rights. And that’s one reason to pay very close attention to what it says. And the other is that, as you say, China wanting to be viewed as a country where rule of law is practiced, does seem to take to heart some of the criticisms when you hold it up to its own professed standard of law, right?

Jeremy: Both domestically and internationally, they like to be viewed as governed by law. It’s been a big part of the Xi Jinping presidency is trying to make the legal system fully established. People sometimes like to say, “Well, the law in China just whatever the Party wants.” Well, okay, then let’s research the laws and see what the Party wants. A huge volume of materials are produced from regulatory agencies to the National People’s Congress on a wide variety of areas, like you mentioned, we translate on China Law Translate. And when you follow them, you can often predict what’s going on in China.

It’s a country that runs very much on five-year plans and roadmaps. And if you follow these, you can almost check off which regulation is satisfying, what requirement of each five-year plan.

Kaiser: An excellent point. So, a lot of the critique… So, on the subject of Xinjiang still, a lot of the critique of China’s Xinjiang policy, a lot of the reporting, a lot of the sanctions that have been imposed by the United States government over Xinjiang have focused on the application of surveillance technology in China, in Xinjiang, and then, more broadly, in China. This whole tech angle seems to have become a really big piece of the whole Xinjiang story. You have spent a lot of time reflecting on the American understanding of technology in China. And it’s a topic that, I, of course, am very interested in as well, perhaps on route to a conversation about that thing that you’ve become so famous for, the social credit system — actually, we might make a couple of stops along the way toward that topic — but maybe, you could first share a few of your observations about American anxieties over Chinese technology as it relates to Xinjiang, and to other issues.

Jeremy: I mean, technology is becoming a big part of every story. We have new technologies that are changing the way we interact with the world around us. And we have technologies that are shaping the way we behave and the way we interact with the world. I think, though, that fundamentally, the story of Xinjiang is not a technological one. It’s a story of ethnic hatred and discrimination. And that is an older story than any technologies. Now, technologies are being applied in new ways that need to be monitored, and people should be aware of those. So, I’m not saying these are non-stories, like some things like Social Credit System, which have largely been created out of whole cloth. But I don’t think that the key to Xinjiang is the technological angle. I think in some extent, people cover it that way because it keeps it relevant and new: The world has so many crises right now, that throwing on this angle makes it a little more unique and reads through some of the crisis fatigue. And I think the other thing is, it makes it more relatable. I think we all have anxiety about being monitored. We all have anxiety about how technology could be used against us because these are issues that we’re facing in every country. And it makes it a little more relatable than the abstract concepts of genocide, which are happening in other parts of the world. But seems like something that happens over there, not to people like me. So, I think that to get people engaged, this tends to be an angle that’s focused on.

Kaiser: So, you’re not overly fond of this idea of techno authoritarianism that word that’s been bandied around a lot.

Jeremy: Yeah, I just think that that phrasing conflates a few different issues. One is the use of technology by authoritarian governments, which is an interesting phenomenon and worthy of study. I don’t want to dismiss that, but it conflates it with the idea of tyrannical technology where the technology itself, somehow through the way that it mediates information or through the way our behaviors online can be micro-conditioned and controlled that this creates a new kind of tyranny. And this is also a concern that many people are talking about and looking at, but I don’t want to conflate the two. With or without the technology, agendas like what’s happening, like the forced cultural assimilation in Xinjiang would continue.

Kaiser: Right. So, it’s not often that you’re going to hear conservatives in the U.S. speak admiringly about the Chinese leadership. Okay, maybe, Donald Trump used to. But last fall, you had Tucker Carlson, for example, on Fox doing a segment on China’s crackdown, on big tech companies and on online gaming where he basically, lamented our inability to act with that kind of decisiveness. I mean, obviously, we have very, very different systems, but at present the U.S. and China are both. I mean, let’s face it, we’re both bedeviled by many of the same problems when it comes to the power of big tech companies. We got privacy violations, opaque algorithms, near monopolistic control of these very, very important sectors just based on the power of the damn network effect, right? You got these populations that are just easily whipped up into frenzies by activating emotion, which is one of the currencies of social media. But realistically, is there anything really that the U.S. can learn from the Chinese approach from the way that China has pretty quickly rolled out formal regulation to try to curb the power either through antitrust or through other mechanisms?

Jeremy: Yeah, it’s such a great question. I used to get asked by both by Chinese colleagues and by American colleagues about China. Is there anything that we should be learning from China? And I used to sometimes, feel hard pressed to think of something. It’s actually, gotten a little easier in the tech regulation sphere. But beyond that, and I’ll get into some more specifics in a second, but let me just say that, I think when you look at another country’s laws, there’s always something to be learned about your own system. I love to say that the reason you do comparative legal research isn’t just to learn about the country you’re studying, but because you take that and reflect back on your own system and why we’re doing something the way we do it.

I often will remark on a situation under Chinese law and be like, “That’s crazy, why they do it that way?” Then, I go research how we do it, and we do it the exact same way. But without that fresh perspective, without feeling like I’m looking at something foreign, I might not instinctively say, “That’s crazy.” I might just accept it. So, fake news is an interesting example. This term existed in Chinese documents long before Donald Trump started saying it. And it’s interesting to me because this is clearly a problem that we have in both countries — this misinformation and disinformation. And in China, we know that it’s a country that is not shy about censorship. And censorship hasn’t resolved the problem of fake news there, including, some fairly draconian punishments for spreading rumors online and things like this.

So, we can look at China. There’s people who talk about the way to control fake news here would be to impose some censorship or responsibility for people spreading misinformation. But we see that in China’s system that hasn’t stopped the problem, even with a censorship-friendly system, that’s not resolving the issue.

But more recently, in terms of privacy regulations and use of algorithms, we have seen China taking a much more proactive approach towards regulating new technology, especially as used by business. And there are some people who want to phrase this is reining in big tech. And, of course, there’s a component of that. The party will rein in anything that becomes a threat, but it really is also, about what it says it’s about, protection of individual’s privacy, limits on the use of biometric information, including facial recognition.

And in the U.S., we’ve taken the opposite of approach, allowing business to push the limits and only drawing lines once we feel those limits have passed. And that’s been to foster business, but we really have been going through it blind. And I think we’re all starting to realize now how important a comprehensive legislative approach is going to be.

Kaiser: Yeah, for sure. So, there really are things that we can learn. Obviously, as gridlocked as we are, it’s going to be pretty hard to implement anything, even something that does seem to have bipartisan consensus — the problem of big tech. But, hey, whatever.

Jeremy: Yeah. And when we say, learn from China. That doesn’t mean, “Oh, look, China’s got a fantastic law. We need to embrace it.” It means we can look at their law, look at what they’re doing, decide whether we agree with it. And if not articulate why and think of a system that will work better for us. But learning from the examples of other, be it the Europeans with GDPR or China with its new data protection regimen, it only makes sense to look at what others are doing.

Kaiser: Great. So, a second, or I guess, a third stop before we get to social credit. One of the areas that you’ve worked on in the past and that you’re still interested in is, juvenile law. When you look at the way China has in the past year, passed these new regulations on, on quite a number of things that actually, have an impact on children in particular, on after school tutoring and cram schools and on online gaming, also maybe aspects of culture that authorities deem objectionable, like, toxic online fandoms and even, so-called “sissy men” among the idols of Chinese pop culture. What do these things tell us about how the state sees its role and the role of law in family life?

Jeremy: Yeah, I think it’s a changing target. And this is a really interesting area to look at. I should say, that over the last three or four years, China has functionally overhauled its system of children and the law, mainly through the revision of three big laws, the Law on the Protection of Minors, the Law on Preventing Juvenile Delinquency, and the Family Education Law.

And each of those approaches it from a slightly different angle. The Law on the Protection of Minors goes through every aspect of society explaining what their duties are in terms of protecting the health, rights, and dignity of minors. The Juvenile Delinquency Law shifts to the behavior of the minors themselves and talks about what behavior is unacceptable. And the Family Education Law goes a step further and enters into the family sphere and starts telling parents what the right way to raise children is, to educate your children, and creates involvement for all of society.

And making these a question of law makes it so that these are duties, not just about children, but these are duties to society regarding your children, which means the state can get involved and can enforce when there’s violations. So, when guardians fail to perform their duties to protect their minors, now the state is creating a more robust system for investigating that and even removing children from their parent’s custody. This is, seems like it might be a far stretch from what you were talking about with the video game regulations.

Kaiser: No, no, no, not at all.

Jeremy: But this is exactly where it comes from, right?

Kaiser: Right, right, right.

Jeremy: Once the state starts to regulate in this area for mainly things like preventing sexual abuse, they also start to talk about, well, what you is the best interest of a child? That’s the international standard. What is a healthy childhood? And the regulations can’t help, but contain some subjective judgements about what that is.

So, in the Family Education Law, which is describing how parents should educate their children for a holistic well-child approach, it also includes things like the first item of content for family education should be love of Party, love of the socialist system, a feeling of pride in the international Chinese community.

And so, that’s an overt imposition of values for political ends. But there’s also much more subtle things like a clear preference for parents — biological parents — to be the guardians of their children, and to be raising their children, not just to have grandparents doing it or left behind children being left behind with a caretaker. While those things are legally allowed, of course, the law starts expressing preferences for what they see as a family unit. And even for the role of what a mother should be and what a father should be.

And from that, it’s easy to get to things like a video game ban. Suddenly, you have ideas about what a model family looks like. I recently described; China loves to work in hierarchical systems from central to provincial down to county levels. And everything. There’s a hierarchy for every department under the relevant ministry. And it’s like families are now fitting into these hierarchies. We didn’t have a clear role for where families and their goals of educating their kids fit in. And now, we’re putting them in. And we’re explaining how every department relates to that work within a family.

Kaiser: Is the causal direction of this though, from culture to politics or from politics to culture?

Jeremy: Wow. It’s a hard question. I’m not sure I can even separate the two.

Kaiser: Yeah.

Jeremy: I think that for years contrary to what a lot of people, I hate to say in “the West,” but certainly, in the U.S. have thought about China. China has been reluctant to get into this culture wars area within families. We love to think of China as governing a lot of aspects of personal life. But the truth is, that even in areas there, we view as more acceptable for state intervention, like that physical, domestic violence, the state has been reluctant to get involved, to go into that family domestic sphere. And once the door has opened a little, suddenly, it’s pushing other values. China has politicized culture. I mean, I suppose we have as well. But what I mean by that is that, in political discourse, in China, the idea of building a spiritual civilization and trying to create a system of values held by the citizens in the form of these core socialist values has been an active goal.

And I think that that trend is playing out in part in these regulations about how children should be protected, how they should be raised, and how they should behave.

Kaiser: Yeah, and it’s really one of the things that marks China — I mean, it’s just, it’s one of the major points of departure from Western jurisprudence. And it’s something that often, I think, sticks in the craw of a lot of American observers, especially American observers. It’s fascinating also how this has played out the kind of paternal role of the Chinese state and of Chinese law during the COVID-19 pandemic, right? I think this is one of those questions that everyone has pondered at one point or another, why do the East Asian states — not just China, but Japan, South Korea, Taiwan, Vietnam — why have they all seemed to fare better than most? Certainly, not all. And there are many exceptions in the west as well, New Zealand, for example. But why have they seemed to exhibit maybe a higher state capacity, or a more governable population? And the culture question always comes up, right? And this is one of the topics that I really want to explore a lot in these series that I’m doing.

Jeremy: Yeah, it’s a hard question. And I’ve been in the U.S. for most of the COVID pandemic. I left, when it was just getting started, out of fear of being isolated from my family in the U.S, if travel shut down as it did. But I’m always reluctant to allow cultural explanations for things. Culture means a lot of different things to different people. There’s high culture, low culture, big culture, and small meanings of culture. But the idea that there’s inherent traits within a culture always strikes me as…

Kaiser: Essentialist, yeah.

Jeremy: Yeah. I mean, give me three generations with the population and I’ll change their culture.

Kaiser: Right.

Jeremy: Our memory span goes as far back as our grandparents and rarely before, and if values are passed down, they’re passed down. But I think, it’s easier than people think to restructure a culture. So, I tend to have a little bit of a rejection when people start raising Confucian explanations and the like.

Kaiser: Sure. I have that same instinct… but — it’s navigating that — because I could also make an argument that it’s harder than you think to restructure a culture. There’s people do not change overnight. And sometimes, it takes more than those three generations. We can look at China today and still find a lot of stubbornly resilient aspects of a very, very old culture. Yeah, I mean, that’s the thing. It’s both blindingly obvious that culture matters and just a blindingly, obvious that culture is malleable. Is it infinitely malleable? Probably, not. Is it more malleable than the essentialist say? Absolutely. It’s just that…

Jeremy: Right. I mean, you can’t fully disrupt the transmission of a culture except by things like removing somebody from their cultural surroundings.

Kaiser: That’s right.

Jeremy: Adoption is a great example of, you can see how quickly the idea. There’s nothing inherent about culture, is what I’m trying to say.

Kaiser:

Taking them away from their parents, putting those parents in reeducation camps, for example, that might…

Jeremy: Precisely. And there you have it, being implemented as it has been in other places, Canada and the US with indigenous populations intentionally for the purpose of disruption of culture and fairly successfully, unfortunately.

Kaiser: Yeah, very unfortunately. I mean, that is not whataboutism, this is just an apt comparison in this case. It’s not meant to obviously, exonerate China, what China is doing in Xinjiang.

Jeremy: Not at all. And it’s worth mentioning that I have heard not just about this, but about other past mistakes of the US. [the]Chinese side using the past mistakes of the U.S. to justify their current conduct. And obviously, that misses the regret and dismay that we have, in looking back at these things that we’ve done. The U.S. genocide of the native Americans and environmental protections. I’ve heard Chinese argued that as a developing nation, they should be allowed to pollute just as much as the US should do. And it’s a curious thing, because it raises the idea that as if we would all want to be doing these things, if we were allowed to, and I don’t think that…

Kaiser: I mean, the idea is that, it’s conferred and unfair advantage that is still being enjoyed and your regret means nothing, right?

Jeremy: Exactly. And we want a piece of that pie too.

Kaiser: Yeah, right, right, right. It’s an understandable if even still, to me, ultimately, objectionable position.

Jeremy: It’s more understandable with the environment than it is with force assimilation.

Kaiser: Sure, sure. So, Jeremy, you’ve developed something of a reputation as a myth buster, is this mainly because of the whole social credit thing? And why you suppose if that is the case that it’s this particular topic that would be the one to make you, as it were, go viral?

Jeremy: Yeah, I think the topic went viral more than I went viral with it. And I just wrote on its, its coattails a little bit. I think that I started doing a little bit of myth busting, or I used to call it China Snopes because when you’re living in China, it sometimes feels like the China you’re reading about in the English language media is very different than the place you’re actually living. And part of the mission of my work is to create mutual understanding between Chinese and American citizens and legal professionals.

And so, I didn’t originally see it as myth busting so much as trying to just address the realities and share what was really happening. And the Social Credit System was something that I was initially, looking into because as you mentioned, I study criminal procedure intensively. And I was looking to see if the Social Credit System was becoming a new back door of way of avoiding the criminal procedure laws to give punishments to people without going through courts. And I quickly found that it wasn’t that, but and I also found that almost everything I was reading was simply wrong. The idea that there were scores being given, evaluating citizen conduct, simply wasn’t happening. And it became for me a story about technology, more than a story about China or the U.S. This is to me, the ultimate example of misinformation, where people who don’t have opinions on China fully believe that there is a social credit score happening to all citizens in China.

Kaiser: So, let’s clear on this. I mean, there is a Social Credit System. There are pilot programs in multiple areas that have something that is without a policy described as a Social Credit System. So, what is it and what is it not, in where we are today in January 2022? What is its reality?

Jeremy: Yeah, the Social Credit System is real, but when I describe it to people, they’ll say, “Well, so you’re saying the Social Credit System isn’t real?” Because they have such a firm notion of what that phrase means.

Kaiser: Right.

Jeremy: What it really is, is sort of a regulatory credit check system. It’s primarily aimed at businesses, not at individuals. And social credit is pretty routinely defined as a measure of people’s compliance with laws and legal obligations. So, it’s not a holistic measure of all your behavior. It’s not an algorithmic formulation based on what you did online, what you bought, who your friends are, what you said, what you posted about. It measures whether or not you’ve received administrative punishments, criminal punishments, whether you’ve applied for permits, or a registered a business, things like this.

So, most of the information going into it is what they call public credit information, which is information created or collected by the government in the course of its normal business. So that’s to say that the creation of the idea of the Social Credit System didn’t involve collecting much more information.

What it did involve was sharing information between regulatory agencies, and they’re now making it so that if you violated say a food safety law… In the past, you might… The food safety regulators would know that that had happened, but it’s now available for the public to see in most cases. And also, other regulatory agencies will see this.

Kaiser: Your mention of the example of food safety reminds me of a really good metaphor that you used, or a really good example of why it is that a single unified numerical score applied to whether it’s a business or to an individual, wouldn’t be of much use to anyone, to law enforcement agencies, or to credit granting agencies or anyone? Can you tell that… I guess, that was really great. It’s like, what if you walked into a restaurant and…

Jeremy: Yeah, yeah, I tend to use food safety as an example, because it’s something that affects all of our lives and it is a big part of the actual Social Credit Systems, credit regulation. If you made a single unifying score out of a holistic data set, you’re turning big data into small data. You’re hiding the nuance of that data that you previously might have been unable to collect. So, the food safety warnings, the ratings that you see in windows in New York and other major cities around the world, A, B, C, D, or the smiley face to the frowny face. When you look at that, you want to know that that means something about the sanitation, the hygiene of the restaurant. You don’t want it to be a holistic measure of anything. I don’t want to know that this restaurant didn’t pay its taxes well last year or that the chef didn’t visit his grandmother enough. I want to know, is the food safe to eat? That’s what I’m looking for.

And so, what the regulatory agencies want to look for? They don’t want to know every detail about it. That’s not useful to them. What they want to know is about your compliance with laws. So, your compliance with laws in areas other than their jurisdiction might be relevant because maybe there is some general willingness to follow regulations. But most specifically, they want to know with your past conduct.

And social credit is based around the concept of credit regulation, which really just means you’ll be subjected to more scrutiny if you’ve been non-compliant in the past. If you have a history of non-compliance and less scrutiny, if you’ve been compliant. And it’s about allocation of regulatory resources.

Kaiser: What do you think is behind the misinterpretation of this when it started? I mean, I think that a lot of the blame seems to lie with a conflation of private initiatives from companies like Alibaba that actually, did try to assess your credit worthiness based on online activity. To what extent was it ever a part of any national or government-led social credit initiatives?

Jeremy: Yeah, in terms of where the misinformation started, there’s a lot of blame that can be spread to a lot of parties, both within and without outside of China. The Sesame Credit system, which was part of the Ali family, was a part of a different aspect under the social credit on parallel, where they were trying to create credit reports, meaning financial credit reports. A measure of your ability to pay back loans, the likelihood that you would repay loans.

Jeremy: And they tasked, the central authorities, the People’s Bank of China and the National Reform and Development Commission, put forward a plan for eight companies to start experimenting with non-financial measures, to measure the likelihood of repayment of loads. Because a lot of people in China are unbanked or underbanked.

They have never taken loans. They don’t have a mortgage. They don’t have credit cards. So, they needed other factors to determine whether they were a safe bet for a loan. And these companies didn’t really get it and created measures that were ultimately rejected.

The Sesame pay system, I’ve described it as a loyalty or rewards program with amazing swagger. It wanted to be more than that, but basically, what it measured was how much you bought on Taobao and how often you use the Alipay, and you got more points. And that’s why, it was rejected. There was a conflict of interest. You weren’t measuring loan risk.

Kaiser: Right. It was moral hazard, right? You don’t want to loan people on the basis of how freely they’ve spent, right?

Jeremy: Yeah, it wasn’t correlated to your ability to repay loans or your likelihood of repaying loans. It had a conflict of interest that you wanted to buy a certain company’s products become more likely. And financial, the closest actual lender corporately related to Sesame Credit, never considered it in giving their loans. And now, it claims, it doesn’t claim to be a credit reporting system. It just claims to be a rewards program. The conflation happened, because in part, the creators of Sesame Credit were talking it up. They were hyping it as an amazing ability to measure a person’s trustworthiness. But that’s not what they had been charged with doing. And it wasn’t overly useful.

Kaiser: But there are scores that are kept, right? I mean, there are point systems that are kept in some regard with respect to social credit. I mean, what is the truth of it? I mean, to what extent is this real in some of these pilot programs?

Jeremy: Yeah, and it’s one of the reasons that the mythos has continued. In some areas, usually local. But even places like Shanghai have created these point systems about trustworthiness. But the thing to understand is that, that’s not the meat of social credit. There aren’t consequences for these scores. The central authorities have made clear that no punishment should ever be given on the basis of such scores. That every punishment needs to be based on an existing law or regulation that calls for it. And the information that they can collect to formulate these scores is also limited. And specifically, excludes a lot of personal information like, religious faith and things like this, that we know are considered in other contexts, but aren’t part of social credit.

So, these have been what I’ve called more of a morality publicity or propaganda campaign, trying to instill the idea of credit worthiness and trustworthiness as values. But the enforcement aspects of social credit are all in terms of these regulatory credit regulation systems that I mentioned.

Kaiser: So, looking back on these years from now, what is going to be the story of social credit in the end? Do you think that you’ll succeed in having killed this mythology that’s been built up around it?

Jeremy: Yeah, I’ve given up that dream. It’s amazing, the idea of a social credit score, including memes that talk about, minus this many social credit points. Not only has it spread throughout people who aren’t generally concerned with China. It’s now actually, gone back to China. And you will see way more posts by people in Chinese talking about, “Oh, you’re going to lose social credit points.”

Even though the people there know that’s not actually the system, they’re just doing it as an internet meme thing. It’s really amazing to watch disinformation or misinformation rather spread like this. And I think the reason that it has lasting power is so strong and the reason it’s so hard to correct people, even people who are in China looking into it, seeing that there isn’t a citizen score is because the idea of this ranking of this rating existed before China system.

I think we managed to connect this to a floating anxiety we had about a digital caste system being created. People love to compare it to an episode of black mirror which predates most of China’s system. And there’s other examples, the good place had a tallying system and this other pop culture and novels that have dealt with this. This idea was out there without a name. And I think, when we heard social credit, we were like, “Ah, that’s the name we’re looking for to put to this idea.”

Kaiser: That’s hysterical. So, you mentioned to me, actually, it’s gone so far as the EU and the UN are now actually, considering formal bands on using Social Credit Score or Social Scoring Systems. This is apparently, a direct response to claims in the popular media about China’s Social Credit System, isn’t it?

Jeremy: Yeah, I mean, governments are susceptible to misinformation as much as anyone. And maybe, it’s an example of what I was talking about as the value of comparative law in looking at China’s system, even though they were looking at it wrong, it did make them reflect on what they don’t want algorithms to do.

And the EU, yeah. I was told that in creating plans about the use of artificial intelligence, the two things, everyone was certain they wanted to prohibit were autonomous weaponry and citizen rating scores, like China’s Social Credit System.

And I think, they avoid in the actual documents mentioning China’s system, but they talk about citizen rating systems like that. And the UN recently, on an ethics and algorithms or ethics and AI document, I forget, also invoked this. And people were amazed with the UN, one that China then signed onto it. And they were like, this is all about stopping what you do. But China was not seeing it that way because they don’t actually, do that.

Kaiser: Right. Fascinating. A final topic for you. So, you wrote a great little essay as an opener to a piece about China’s new Plea Leniency System, which was introduced in 2018. While that that Plea Leniency System is interesting in itself and is something that we should talk about a bit. What I found a particular interest is, you make the case for engagement in the legal field, by looking at the way that Chinese jurisprudence has borrowed so heavily from the other countries. And this Plea Leniency System itself is a clear, direct borrowing from the U.S.

So, in its legal reforms, China has clearly for many decades now borrowed quite deliberately from the rest of the world. And maybe, even in particular, the U.S. Can you give us maybe, the potted version of this argument that you make? And along the way, maybe, give us some examples of how China’s legal reforms have borrowed from abroad and what the counterfactual might look like in a time where China no longer does that, where we don’t have engagement in the legal systems of these countries.

Jeremy: There’s so much to unpack there. It’s a great topic. I mean, first of all, I should clarify what I mean when I say engagement, because I have recently, been schooled and not being a person with an IR background that what most people mean when they talk about engagement between the U.S. and China is actually, opening markets and having commercial transactions.

And anyone who thought that that would lead to the reform of China, it’s not socialism. They didn’t understand, its capitalism, acts as to consumer goods is not going to start a revolution. What I mean by engagement is, people to people interactions.

Coexistence and acknowledging each other. China is a control model country. It’s often rigid in its controls, but it’s in the name of stability. And the best way for the government to name stability is through legitimacy, providing for its citizens. And that’s what it’s generally, trying to do. And they’ve tried to improve the laws to make a more sustainable economic and social situation.

I don’t mean to ignore examples like, Xinjiang where there’s other factors that play that have made an unacceptable situation. But generally speaking, China has looked to what other countries are doing. They have their legal system was essentially reinvented in 1979. It’s not very old. And they’ve had to very quickly put in place functional systems to become one of the world’s largest economies.

Previously, they saw themselves as being a student, trying to catch up with countries that were already economically developed and borrowing systems, not borrowing necessarily entirely. But like I said, adapting, seeing what they agreed with, what they didn’t agree with, what they thought could be feasible, what wouldn’t be feasible.

And that’s included criminal law, which the area where I’ve worked primarily. I’ve been in situations where I’ve been able to lecture a group of 300 or more prosecutors in China about what the U.S. does to handle plea bargaining cases. And I have trouble imagining a situation where the U.S. prosecutors would allow me to sit down and described them what China does, because they’re not interested.

So, China has looked abroad. Now, the reason I bring up the goal of stability is because as the US has become or appeared to become less stable, the attitude has shifted towards whether or not we have anything worth studying. And we of course do, and China will continue particularly individual scholars.

But the overall feeling has changed that the idea that the U.S. was advanced in every way, shape and form is no longer there. And China now, sees itself as in a position to start innovating in legal areas as well.

Kaiser: Fantastic. Jeremy, thank you so much for taking the time to join me here and what a really fun and enlightening conversation it’s been, man. Let’s do one more pitch for volunteer translators for China Law Translate. How does this process work? You say it’s like a Wiki. They can just go on and translate, just a little sentence at a time? Is that…

Jeremy: Yeah. Right now, you need to create an account because I do like to know who did the translations. So, once you’ve created an account, you’ll see that there’s a little language toggle in the bottom left of your browser. And under that, once you’re logged in will be a translate mode. And when you click that, these little dots appear after every sentence. And when you click one, a little very intuitive translated menu opens up where you see the original language and can type in the translation. And then, hit return.

Kaiser: Sounds as easy it could possibly be. I hope that some of our listeners who are bilingual and who know the law would be eager to participate in this because it’s really for the common good. Thanks so much.

Jeremy: We’d love to have the participation. Thanks.

Kaiser: Jeremy, let’s move on to recommendations, but first, a very quick reminder that the Sinica Podcast is powered by SupChina. And if you like what we’re doing with this show or with any of the other shows in the Sinica Network, remember that the best way to support our work is to subscribe to SupChina Access, our daily email newsletter. Honestly, it’s just a great product. It’s a great newsletter. It’s right in the sweet spot. I think for listeners to the show who want more context across a nice broad range of coverage. It really does draw on hundreds of different news sources every day, as I always say in the intro. Okay. So, onto recommendations, Jeremy, what you got for us, man?

Jeremy: I know you don’t like us to have things directly related to our work, but mine is tangentially related.

Kaiser: Oh, it’s okay. That’s fine. That’s fine.

Jeremy: I’m going to recommend an old novel, The Fixer by Bernard Malamud. It’s the story of a person trapped in a criminal justice system in Russia. That was the first time in reading it. Sometimes, fiction is even better than true stories for letting you have the empathy and understanding a situation. And it helped me understand so much what being caught in the Chinese legal system can often be. And the fact that given that this isn’t a Chinese story, how universal some of these problems are.

Kaiser: Great. The Fixer, I will check that novel. I’m kind of jonesing for a good novel. So, that sounds really good. It’s setting what the period of Russia?

Jeremy: That’s a good question. It’s well Pre-Soviet.

Kaiser: Sounds good. I mean, I’ve been reading my… I just recently, reread The Brothers Karamazov. I don’t know why, but I did. I got to say, I’m not a crazy Dostoevsky fan. I mean, there are other Russian writers who I think I prefer. Give me Tolstoy over Dostoevsky. Anyway, I want to recommend for all of you aspiring Chinese chefs and really, even for people who cook Chinese food a lot, like I do, to just go back to the basics and relearn some of your fundamentals. I was feeling stuck and rut with my cooking, making yet another basic pork loin stir fried dish. One day when I decided, you know what? I’m just going to click on this video from Chris Thomas and his wife, Stephanie Li. They have the best YouTube cooking channel, which is called Chinese Cooking Demystified. Have you seen this, Jeremy? Do you know this?

Jeremy: I have not, but I’m writing it down now.

Kaiser: Yeah, Chinese Cooking Demystified. So, it’s just unpretentious and super common sense. It called, there are a couple who lives in Guangdong province, I think in the Pearl River Delta somewhere. And it’s so clear, BS free, and like real. It’s real. And one of the early episodes is just, some basic, super basic stir fry. And I decided I wanted to reboot and just follow their techniques for things like, oyster sauce beef with the ginger and scallions. Awesome.

Just a basic pork Julianne with green chilies. Everyone cooks this, but you can’t get more basic than that. And you know what? They were so solid and a weirdly refreshing change from my usual go at this, which I mean, I’m good. Everyone would taste mine and like it. But wow, it was great. And the whole family was really, pleasantly, surprised. And I’m now sold on the superiority of some of their basic techniques. No, seriously, check them out. They were really good on, it’s like heat control. And so, and it’s just, I just love how free of pretension it is. It’s just such like good, solid cooking. I mean, I’ve got done some of their more advanced stuff.

I mean, they have a great thing where you can basically make, chashao rou from scratch, like the chashao sauce you don’t buy, like pre-made chashaou sauce, but you make it yourself. I mean, the amount of stuff that goes into it is pretty astonishing. But I’ve done that. I’ve done a lot of their interesting stuff. Yibin reganmian and I’ve done theirs and stuff. It’s fantastic. But just go back to basics. It’s fun and really, it change my perspective on things.

Jeremy: I’m going to check it out.

Kaiser: Please do. Jeremy, man, thanks so much. That was a lot of fun.

Jeremy: Thanks for having me, Kaiser.

Kaiser: The Sinica Podcast is powered by SupChina and is a proud part of the Sinica Network. Our show is produced and edited by me, Kaiser Kuo. We would be delighted if you would drop us an email at sinica@supchina.com or… And by the way, thank you for all of people who’ve been writing recently. It’s just been excellent. I have some great guest recommendations, great top pick recommendations. So, keep it coming, keep it coming. Just as good, give us a rating and a review on Apple podcasts. This really does help people discover the show. Meanwhile, follow us on Twitter or our Facebook at SupChina news and make sure to check out all the other shows in the Sinica network. Thank you for listening. We will see you next meeting. Take care.