China v. China: The Paradox in Regulating Food and Product Safety

Since 2007, melamine-dairy products, lead-paint toys, clenbuterol-pork, and a long list of other defective products have raised concerns about the Chinese food and product safety regulatory system. This dissertation examines the conflicting ideologies of uniformity and flexibility within this regulatory system and its relationship to Chinese philosophical tradition.The discussion is divided into six chapters. Chapter 1 provides an overview of the study. Chapter 2 details the flexibility derived from Confucianism, Daoism, and Buddhism, and the uniformity based in Legalism of the Chinese legal culture. Chapter 3 then explores the law and rule-making powers which embraces both centralization of uniformity and decentralization of flexibility within the current Chinese legal structure. Chapter 4 reviews the Chinese food and product safety law on paper, which reflects a conflict between market economic policy relying on self-regulated forces and supervisory control relying on administrative forces. Chapter 5 examines Chinese food and product safety law in action regarding the battle between the administrative and economic roles of government officials under the political dictatorship of uniformity and laissez-faire administration of flexibility. Chapter 6 reviews the paradox and concludes.This study finds that although the Chinese legal system emphasizes communist dictatorship on paper, the Chinese food and product safety regulatory system relies on a laissez-faire administrative structure that embraces flexibility combining Confucian self-regulation, Daoist non-interference, Buddhist unwritten tradition, Legalist negation of morality, and capitalist self-interest-driven ideologies.Flexibility is a form of freedom. These flexibility settings allow China to achieve rapid economic growth with diversity, but these settings also limit the food and product supervision to rely on an internal management system of the Party. Under this self-regulatory structure, economic activities are not subject to the constraints by written rules of law, unwritten rules of ethics, independent checks and balances, and public supervision by freedom of expression. Corporations may do whatever they want. The problem, therefore, cannot be solved by more law and more regulation, rather depends on self-transformation of the Party to adopt the fundamental concepts of the rule of law, such as reasonableness and justice, which were also promoted by Confucius.