Luo Xiang on Purchasing Women and Children

Luo Xiang, "Proposal to Increase the Penalties for the Crime of Purchasing
Women and Children"[1]
 
Introduction by David Ownby, Translation by Freya Ge
 
Introduction
 
Luo Xiang (b. 1977) is a Professor of Law at Beijing University, and is well-known for his online lectures on legal issues which have attracted huge audiences in China, particularly among young people (here is one example from Bilibili, a popular video platform, where Luo has some 13 million followers).  His appeal derives in part from his folksy sense of humor and his story-telling abilities, but there is a broad interest in Chinese society concerning what the law is and how it should function.  I remember spending a summer in Taibei in the 1990s when the American television drama L.A. Law was popular.  The show ran in Taiwan as well, with Chinese subtitles, and was followed by fifteen or twenty minutes of commentary by a law professor from a local university explaining the nuances of the legal issues discussed on each episode.  I recall being amused because L.A. Law was, of course, less about the law and more about office politics and romance, but the professor was completely serious. 
 
China in the 2020s is of course quite different from Taiwan in the 1990s, but the “rule of law” remains a much discussed topic in a society where the rules are often arbitrarily enforced.  Xu Jilin praises Luo Xiang as a public intellectual helping to rebuild the idea of “public” in contemporary China, by which he means that Luo is talking to millions of young people about what law and fairness mean in everyday life in ways that make sense to them.  He is providing a common language that might contribute to the formation of an eventual consensus on basic social and political issues.
 
The text translated here was prompted by the recent controversy over the case of the mother of eight who was discovered by a local Vlogger in January of this year chained to an outbuilding to her Fengxian home.  The woman was found to have been abducted and then purchased by the father, and to have mental—as well as dental—health issues as well (click here for Sun Liping’s commentary on the case, and here for an overview by NPR).  Local authorities predictably tried to cover up the story, but the Internet exploded with rage and indignation. 

Part of the rage and indignation focused on China’s legal system, because penalties for the abduction and purchase of women—or children—are quite low:  three years imprisonment in cases without “aggravated circumstances,” or even less if the purchaser wound up “treating his purchases well” (or course, the sentences could be harsher if the situation demanded it).  As a professor of law and a frequent commentator on legal issues, Luo Xiang naturally weighed in, demanding an increase in legal penalties for such acts.
 
In fact, Luo’s text is a response to a similar intervention by Che Hao 车浩 (b. 1977), his colleague at the Beijing University Faculty of Law, who argued against raising the penalties (both Che’s argument and Luo’s riposte can be read here; in fact Che’s argument may be a response to an earlier intervention by Luo).  My impression is that Che is not of course in favor of the abduction and purchase of women and children, but that he is offering a lawyerly response to a popular demand to change the law, pointing out what is logical and illogical about the demand, what the possible consequences might be.  As interesting as Che’s arguments may (or may not) be, the issue is highly technical, and thus of interest to legal specialists, to whom I will leave the chore of translation.
 
As a response to Che Hao, Luo Xiang’s arguments are highly technical and legalistic as well, and if he were not a well known public intellectual, we would not have chosen to translate his text.  In fact, the entire text has been translated and is available here, but my impression is that this is a product of machine translation (a perfectly good place to start!) and many passages of the text remain at best ambiguous.  What we publish here is an excerpt, which conveys some of the flavor of Luo’s arguments—and his style of argumentation—in ways we hope our readers can appreciate.  His argument can be readily summed up in a nutshell:  whatever the technical issues involved, those who violate the laws concerning protected plants and animals often receive heavier penalties than those who abduct, sell, and/or purchase women and children.  This cannot be right.
 
Translation by Freya Ge
 
Preamble: I have always advocated increasing the penalty for the crime of buying and selling abducted women and children, so that similar crimes receive similar penalties, so this has nothing to do with the events of the day.
 
In the past few days, whether to increase the penalty for the crime of purchasing abducted women and children has once again become a public topic.
 
I am very grateful for the different perspectives shared with me by friends and by my colleague, Professor Che Hao, of the Beijing University Faculty of Law.  Such criticism is very valuable, because criticism can lead us to have a deeper understanding of the problem.
 
People's cognitive abilities are limited, so we should not accord unlimited value to positions we ourselves consider important. In worldly matters, we must wean ourselves from our addiction to dogmatic thinking, which, even as it caters to human pretension and arrogance, has been shown by history to be a disastrous form of prejudice and folly.
 
We must accept that there may be reasonable elements in any opposing position. After all, we are not philosopher kings, and we are unable to grasp true knowledge (episteme) as we emerge from our caves and look directly into the sun.  We can only live in the world of phenomena and our inadequate opinions (doxa). 
 
It is important for scholars to distance themselves from fanatical voices, and sometimes if he refuses to play to the peanut gallery, a scholar will more readily display  his academic courage and conscience. For people of the law, Tocqueville's teachings ring loud and clear: 
 
“When people give rein to their passions and are carried away by their ideals, they may feel that the jurists place an invisible constraint over them to pacify them. Without fanfare, jurists use their aristocratic habits to counter democratic instincts; they use their reverence for ancient things to counter democracy's love of the new; they use their caution to counter democracy’s fondness for the grandiose, their love of norms to counter democracy's contempt for institutions, and their habits of calm to counter democracy’s impetuousness.” 
 
After carefully reading Professor Che's criticisms, I still stick to my original opinion, which is to increase the penalty for the crime of buying and selling abducted women and children, and to see buying and selling as the same crime, worthy of the same punishment… 
 
Human, Animals and Plants
 
Another important reason I have argued over the years for raising the penalties for the crime of buying and selling trafficked women and children is the  comparison one can make with crimes having to do with animals and plants. 
 
Paragraph 1 of article 341 of the Criminal Code concerns the crime of harming valuable or endangered wildlife—the illegal hunting and killing of valuable and endangered wildlife under special state protection, or the illegal purchase, transport, and sale of valuable and endangered wildlife under special state protections, or products derived therefrom.  Those found guilty of such crimes shall be sentenced to imprisonment or criminal detention of not more than five years, plus applicable fines; in more serious cases, the sentence will be imprisonment of not less than five years but not more than ten years, plus applicable fines; in exceptionally serious cases, the sentence will imprisonment or criminal detention of not less than ten years, plus applicable fines or confiscation of property. 
 
From a legal standpoint, valuable and endangered wildlife fall into three categories: first, wild animals that are under first- and second-level state protection as specified in the List of National Key Protected Wildlife; second, wild animals listed in Appendices I and II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora; and third, any of the above examples that are artificially domesticated and reproduced. 
 
Please note that the standard for committing the crime of harming valuable and endangered wildlife is independent of the severity of the offense, in the sense that as long as the animal in question is a second-class protected animal, even if only one such animal is harmed, this constitutes a crime. Sometimes the purchase of a first-class protected animal is particularly egregious, as in the case golden monkeys, giant pandas, etc., and the same is true of everyone's recent favorite, the leopard:  the purchase of one leopard merits a sentence of more than ten years in prison along with a fine or the confiscation of property.
 
Critics will say that people who buy parrots are not buying them to be wives who will produce children, but rather to be pets that they will care for and enjoy. Consequently, nothing in such behavior constitutes damage to the animal itself, and even less is it a question of the harm done to the basic legal rights of individuals in terms of sexual exploitation, corporal damage, or loss of freedom.  In the case of those who purchase parrots, the purchaser basically does not engage in more serious crimes after the purchase is completed, and the entire judgement of the situation is concerned solely with the act of purchase.  This is the nature of this crime. 
 
To my mind, this discussion is inadequate. Valuable and endangered wild animals have not only ornamental value, but may also be used as foods or to make medicine, both of which are forms of value.  If you purchase an animal for the purpose of making medicine, this will naturally damage the interests of the animal. We should of course note that, according to legal principles, if you kill the animal after purchasing it, this still falls within the category of the crime of endangering precious and endangered wild animals and is not viewed as a separate crime.  This is different from raping a woman you have purchased, which is a case of separate crimes. 
 
It is true that there are more laws dealing with human beings, meaning more effort is made to protect them.  However, in terms of basic punishment, there is a serious imbalance between the penalties incurred for the purchase of women and children and those incurred for the purchase of valuable and endangered wild animals. 
 
In fact, the purchase of valuable or endangered wildlife products, such as tiger skins, can merit a sentence of more than ten years. Paragraph 2 of Article 341 of the Criminal Code deals with the crime of illegal hunting, and stipulates that whoever violates the laws on hunting, and engages in such practices in prohibited areas, during prohibited periods, or using prohibited weapons or methods so as to damage wildlife resources, can, in severe cases, be sentenced to a maximum of three years of imprisonment, criminal detention, or public surveillance, or can be subject to a fine. 
 
In legal terms, “serious cases” refer to those in which more than 20 wild animals are damaged in prohibited hunting areas or periods or using prohibited tools and methods in violation of the laws on hunting. 
 
The wild animals under discussion here are also known as the “three types of valuable animals 三有动物 [i.e., those possessing important ecological, scientific, or social value ].  According to the “List of Terrestrial Wild Animals having Great Ecological, Scientific and Social Value under State Protection,” there are some 2,000 species included in this group, including even 110 species of insects. Hunting is completely prohibited in many cities, which means, to put it bluntly, that catching twenty animals (such as toads) in the city constitutes illegal hunting. 
 
What about the purchase of such animals? The purchaser could be charged with the crime of concealing the proceeds and benefits of a crime. Of course in this case, the criminal threshold is not 20 animals, but 50. The law stipulates that those who knowingly purchase illegally hunted wild animals in quantities of 50 or more shall be punished for concealing the proceeds of a crime. 
 
The basic punishment for this crime is imprisonment, criminal detention, or public surveillance for a period not exceeding three years; in extreme cases, the guilty party shall be sentenced to a period of not less than three years but not more than seven years and shall also be fined. The purchaser could be also be tried for the crime of illegal hunting, purchase, transportation, and sale of terrestrial wildlife, as added to the eleventh amendment to the criminal code (defined as “in violation of the regulations on the protection and management of wild animals, including illegally hunting, purchasing, transporting, or selling terrestrial wild animals that grow and breed naturally in the wild for the purpose of eating, outside of those cases stipulated in Paragraph 1, and when the crime is of a serious nature).  The penalty is again imprisonment, detention, or public surveillance for a period of no more than three years, or a fine. 
 
It should be noted that as long as the purchase was made so that the animal could be eaten, consumption does not have to occur, and whether the animal flies away after the purchase, or if the purchaser becomes emotionally attached to the animal and decides not to eat it, the act remains criminal. 
 
Now let’s look at plants.  Article 344 of the Criminal Code concerns the crime of endangering key nationally protected plants, and states that whoever, in violation of state regulations, illegally cuts down or destroys precious trees or other plants enjoying state protection, or who illegally purchases, transports, processes, or sells precious trees or other plants enjoying state protection, shall be sentenced to imprisonment, criminal detention or public surveillance for a period of not more than three years, and shall also be fined; in serious cases, the sentence is increased to a period of not less than three years but not more than seven, with accompanying fines. 
 
Regardless of whether it is a sale or a purchase, whether it is a plant or a plant product, any transaction is considered the same offence and is punishable by a sentence of up to seven years. 
 
Man is the end, and not solely the means.  Human dignity is above that of all animals and plants.  Kant once said: "Every person has the right to ask his compatriots to respect him, and in the same vein, he should also respect all other people. Humanity itself is a kind of dignity, in the sense that people cannot be used by others as simple tools but must rather be seen as the end. This is the basis of human dignity. This is what makes man different from other animals in the world which function as mere tools, in that same way that man is also different from inanimate objects."
 
The Question of Purchasing with Good Intentions 
 
Critics point to the possibility of purchases made with good intentions, like “Dr. Schultz in ‘Django Unchained,’ who bought Django from a slave trader and let Django stay with him, so that Django temporarily escaped from captivity and torture. Is buying Django a worse crime than enslaving him?" 
 
I admit that things like this happen, which is why I have always argued that the law should define what a crime is, but that ethics should be the basis for exemptions from legal punishments. 
  
If an action is guided by morality, it is certainly not a crime. For such cases, the proviso of Article 13 of the Criminal Code is completely applicable:  If the situation is clearly insignificant and the harm is not great, then the action will not be considered a crime.  The fact that his clause is rarely used in legal practice is not a problem with the law itself but with the application of the law. 
 
By analogy, under current legal conditions, I suspect that the act of purchasing rare animals for the purpose of releasing them or improving their welfare is unlikely to be treated with leniency. In that case should someone who purchases a wife with the intention of loving her “for better or for worse” expect leniency from the law?
 
Procedural Justice or Real-World Justice? 
 
On the issue of purchasing abducted women and children, one can clearly argue in terms of morality or in terms of utility. But important social problems have never been philosophical games confined to the scholar’s study, even if philosophy at some level sustains important social problems throughout the world. 
 
Kierkegaard once told a story about being in a theater when a fire broke out backstage. A clown came out to warn the audience, but they thought it was a joke and applauded. He told them again but they were keep laughing, and that's how the world ends. 
 
Life is full of jokes that make people laugh, but a lot of times we get caught up in the laughter and we forget to think, we forget why we laugh. Criminal law is the last resort in our effort to govern society, and it can ultimately solve very few problems. It is an unrealistic fantasy to imagine that the problem of buying women and children can be solved by increasing the punishment for individual crimes. But criminal justice still has to do its part. 
 
Camus's The Stranger describes a sad legal situation in which the accused becomes an outsider to the law. Camus's philosophy leads people to pessimism. He believes that people must search for meaning, but that the essence of life is meaningless. Therefore, man must reconcile with absurdity. 
 
However, I am fundamentally opposed to this philosophy because nihilism is not logically self-consistent. It is meaningless to say that life has no meaning if there is no meaning as a frame of reference. Even if we are unable to achieve the ideal result, they does not mean that the ideal is not valuable. Although all our efforts may be unproductive, even counterproductive, these efforts are still meaningful. The fact that we cannot draw a perfect circle does not mean that the perfect circle does not exist, but rather that we cannot achieve it. 
 
The law is constantly changing, and the rule of law is constantly moving forward. In 2015, the 9th amendment to the Criminal Code eliminated the exemption for the crime of purchasing women and children who had been abducted, and the State Council's “Action Plan against Human Trafficking (2021-2030)” also gives us hope. 
 
There are writers who have argued that cracking down on trafficking in women will lead to the disappearance of rural villages.  To this, I respond with a legal adage: “Fiat justitia ruat caelum”—if the sky must fall for justice to be done, so be it.
 
A passage from A Canticle for Leibowitz says:  “The craving for worldly security, for Eden, [is the very] ‘root of evil’…To minimize suffering and to maximize security were natural and proper ends of society and Caesar. But then they became the only ends, somehow, and the only basis of law—a perversion. Inevitably, then, in seeking only them, we found only their opposites: maximum suffering and minimum security.”[2]
 
Those who hold to utilitarianism should give this passage a good read. I have never denied the value of utilitarianism, but it must be subject to moral constraints, and the words of Kant ring in my ears yet again:
 
 “Morality does not teach us how to be happy, but how to be worthy of happiness.”
 
Notes 


[1]罗翔, “建议提高收买妇女儿童罪的刑罚,” originally published on Luo Xiang’s Bilibili channel, 罗翔说刑法, reprinted on 雅理读书, which is part of the Guanchazhe website. 

[2]Translator’s note :  Translation taken from an online version of the novel.  The first paragraph of the Wikipedia entry on the novel describes it as follows:  “A Canticle for Leibowitz is a post-apocalyptic social science fiction novel by American writer Walter M. Miller Jr., first published in 1959. Set in a Catholic monastery in the desert of the southwestern United States after a devastating nuclear war, the book spans thousands of years as civilization rebuilds itself. The monks of the Albertian Order of Leibowitz preserve the surviving remnants of man's scientific knowledge until the world is again ready for it.”