Juridical tautology: "illegal crime"
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The news is flooded with stories about Hui Ka Yan 许家印 (MSM Xǔ Jiāyìn), one of China's wealthiest individuals, Chairman and Party Committee secretary of Evergrande Group, the mega real estate corporation that is currently going belly up, being arrested on suspicion of "illegal crimes". That expression sounded so strange that I had to find out what the Chinese expression was.
Turns out that it is "wéifǎ fànzuì 违法犯罪". Since this phrase occurs frequently in Chinese texts (221,000,000 ghits), it is a firmly established expression in the common legal lexicon of China. It is not a slipup. Furthermore, the English translation "illegal crime" is frequently met in official Chinese media accounts.
Nonetheless, Bing Translator tried valiantly to make sense of the mallocution by translating it as "breaking the law and committing crimes". To show how deeply ensconced "illegal crime" is in the collective Chinese legal mind, let us look at the concept of its opposite, héfǎ fànzuì 合法犯罪 ("legal crime"; 87,800 ghits) (!!), as it is discussed in this Baidu webpage.
As the webpage explains (but doesn't condone), if the PRC government does something that is technically illegal, but the action "benefits The Unit" and doesn't personally benefit the officials committing the offense, then it's considered to be a legal offense.
Here's an excerpt from the article (Google translated) that discusses the topic in more detail：
—–
“Legal” here does not mean being allowed by the law, but includes three meanings:
First, the government, as the defender of the law and also the de facto legislator, actually goes out of its way to exploit loopholes in the law. The current law has clear penalties for businessmen's fraudulent behavior. However, when the government, which should not be engaged in commercial activities, not only openly conducts commercial activities, but also engages in semi-open fraud, the law seems to be caught off guard and has no preparation for corresponding crimes and penalties.
Secondly, although this kind of behavior obviously tramples on market ethics, business ethics, and even social morality, it has become the default general rule in the industry. Otherwise, it will become a "street rat".
Third, and most importantly, in China, power is greater than law, and the government represents legitimacy. Any behavior that is in the interest of the government, as long as no official is found to be personally profiting from it, is legitimate even if it is contrary to existing laws, and will gain social acquiescence and compliance.
—–
Courtesy of Mark Metcalf.
Gulp! (Mis)rule of law?
Selected readings
- "'Hurt(s) the feelings of the Chinese people'" (9/12/11)
- "Grab / Mixed bag of crimes that 'hurt the feelings of the Chinese people', part 2" (9/18/23)
- "Rule of / by law" (10/20/14)
Philip Taylor said,
September 29, 2023 @ 3:34 pm
‘ the action "benefits The Unit" ’ — what is "The Unit" in this context ?
Olaf Zimmermann said,
September 29, 2023 @ 3:44 pm
"The Unit" is shorthand for "community" as in "Community, Identity, Stabillity".
Have some soma.
Moonfest said,
September 29, 2023 @ 7:28 pm
The CCP is a bunch of illiterates led by an illiterate.
The other similar terms they like to use are “依法施政”, “依法治國”.
John Swindle said,
September 30, 2023 @ 1:23 am
In English we have the expression "criminal offense," contrasting with "civil offense." Taken literally the first is a tautology and the second an oxymoron. They don't map neatly to the Chinese terms under discussion, but they can remind us that languages are like that. This fact in itself needn't hurt our feelings.
It might be interesting to compare the terms used in the PRC with those used in other Chinese-speaking polities, especially Taiwan. Do they have "illegal crimes" there?
J.W. Brewer said,
September 30, 2023 @ 8:28 am
Conceptually, the "legal crime" idea seems somewhat analogous to the doctrine of justification in Anglo-American criminal law. E.g., intentional homicide is presumptively a crime, but it's not a crime if e.g. the killer was acting in self-defense. Some such defenses to criminal liability do have a "it served the public interest under the circumstances better than the alternative would have" basis. For example, it is generally illegal to go onto someone else's property with bulldozers and knock down a bunch of their trees without permission, but if firefighters do it in order to create a firebreak which will hopefully slow the progress of an approaching wildfire, it's not-illegal. (Whether the landowner is at least entitled to compensation afterwards for the value of the trees that were sacrificed to the public good may vary from place to place.)
Obviously there are concerns that might arise if there are de facto justifications (the authorities will in practice not prosecute you) that are not formally recognized in the de jure law and/or if the public interest is confused with the narrow self-interest of those in power, but a little bit of the former (at a minimum) still happens in less arbitrary and barbaric regimes than that controlled by the CCP.
Cervantes said,
September 30, 2023 @ 8:47 am
Yes, the locutions in English go in the opposite direction but seem to be a contrapositive idea. E.g. justifiable homicide. Someone who took property without permission in order to prevent a catastrophe or save a life would not be prosecuted. The question of what makes an otherwise illegal act legal, or at least subject to prosecutorial discretion, may be debatable but it's certainly one that every society has to deal with.
Bloix said,
September 30, 2023 @ 3:10 pm
The word "homicide" does not imply criminality. A homicide is any death of a human being caused by the act or omission of another. Depending on the circumstances, a homicide might be a crime; it may be non-criminal, but expose the actor to civil liability; or it may have no criminal or civil consequences at all.
A "justifiable homicide" exposes the actor to no criminal consequences; it may or may not leave open the possibility of civil liability. Examples are killing in self-defense; killing to prevent death or serious harm to a third person, whether or not the decedent intended that harm; killing to quell a riot or insurrection.
A finding that a killing was a justifiable homicide is legally a finding that no crime was committed. So the expression "justifiable homicide" is not analogous to the expression "legal crime."
John Swindle – There is a distinction in law between criminal offenses and civil offenses. Criminal offenses are punishable pursuant to criminal law. Civil offenses are punishable pursuant to civil law. If I, while driving at night below the speed limit, hit and kill a pedestrian who was jaywalking, the prosecutor may determine that I committed no criminal offense, and have no criminal liability. However, the family of the decedent may bring a civil case against me for wrongful death, and may seek to win a monetary award against me for my civil offense.
Take the very recent judicial decision in the New York State case regarding Donald Trump's representations in connection with his businesses. The judge found that he had made false representations over many years regarding the values of their assets -representations submitted to bankers and insurance companies for the purpose of assisting them in establishing loan rates and premiums for coverage. Although these representations were false, they were not criminal offenses, and Donald Trump is not at risk of being sentenced to any prison time in connection with them. But they are civil offenses, which expose him to the risk of monetary fines and to the possibility that his permits to conduct various kinds of business in New York State – including real estate business, which is heavily related – will be cancelled.
Cervantes said,
October 1, 2023 @ 7:35 am
"So the phrase "justifiable homicide" is not analogous to the expression "legal crime."
You seem to be missing the point. Yes, it is exactly true that it is not a crime, but that is the point. An action that is treated as a crime in some contexts is not treated as a crime in others. That's what I'm saying. And that is the implication of the Chinese phrase in question, it's just that the implication runs in the opposite direction.
Yves Rehbein said,
October 1, 2023 @ 5:41 pm
Similar problematic terms that I cannot translate are German Willkür and Vorsatz.
The details of the etymology elude me, but I suspect a relation of Chur and Churfürst to shire and sheriff. It stands to reason that Wild-West mentality is perfectly in line with the topic – je suis le droit :)
The official relation to choose / choice is an old High German fiction which does not explain anything. A relation to *walhiskaz- (“welsh, foreign”) seems probable in an act of Willkür, i.e. an illegitimate act by an illegitimate entity of some kind. For example, we speek of "Wahl-Heimat", ostensibly the homestead-of-choice, and equally "Wahl-Berliner", where a stay abroad is chiefly implied.
To stay on topic, I have to note wéi 違:
> 1. to disobey, to violate
違規／违规 ― wéiguī ― to violate regulations
> 2. † to leave; to depart; to go away from
> 3. † to be separated by (a distance of); to be apart by
> 4. † to dodge; to avoid
I of course do not believe in coincidence.
Egyptian Demotic wy might also mean "to be far" and in an extended meaning of wꜣj "release, setting free", in contrast to ḏtḥ "to imprison", and also "tax free", in opposition to ḥtr "taxable" (Chicago Demotic Dictionary: wy). Doesn't bother me though. I don't even believe that Sanskrit √vi reconstructs PIE *wi- "apart". No milky way Jose!
Bloix said,
October 1, 2023 @ 6:46 pm
Cervantes – no, I don't think i am missing the point. I think that others are holding tightly to a misunderstanding that does not permit them to see the point.
"Legal crime" in the Chinese usage is a contradiction in terms. As the Chinese leadership is not composed of idiots, we conclude that this is intentional – what it means is, something that is a crime for you but not for us. "Any behavior that is in the interest of the government, as long as no official is found to be personally profiting from it, is legitimate even if it is contrary to existing laws."
"Justifiable homicide" is nothing like that. Regardless of what some lay persons may think, the word "homicide" does not refer only to criminal activity. It means any death of a human being that is caused by another human being, whether the act that caused it is a crime or not. So "justifiable homicide," unlike "legal crime," is not a contradiction in terms.
"Homicide" alone is a broad term that encompasses many different kinds of events that have varied legal consequences. For example: murder (of various degrees)- criminal; manslaughter- criminal; wrongful death- not criminal, but civilly actionable; accidental death (e.g., a hunting accident, many workplace accidents)- not criminal (but possibly wrongful death); justifiable homicide (including self-defense and the defense of another)- not criminal. There is no contradiction between "justifiable" and "homicide."
I don't know why people find this so difficult, but whatever you may think, enforcement of the laws of the United States has not become so degraded as to have sunk quite to the level of that in the PRC.
Peter Taylor said,
October 3, 2023 @ 8:34 am
I believe that the confusion is English is restricted to certain jurisdictions, because others distinguish instead between offences (criminal) and torts (civil).
On the subject of illegal behaviour being functionally legal, the closest analogy in the US might be abuse of qualified immunity.
John Swindle said,
October 3, 2023 @ 9:00 am
@Bloix: My point is that if we're to criticize Chinese-language reports of crime and punishment, we should notice that English also has legal expressions that appear to be tautologies or oxymorons. That's not to say that they will remain opaque on examination.
If we think the Chinese Party and goverment are misusing the written Chinese language, we should find Chinese and not only English points of comparison.
If instead the idea is to criticize the Chinese legal system, feel free, as long as you're not in China, but notice where linguistic indignation fades into political indignation. (It's partly a matter of perspective; I'm American and would not be nearly so sanguine if someone were to suggest that Donald Trump, a political figure in my country, could not go fuck himself.)
Talvi Lai said,
October 27, 2023 @ 6:32 am
To my Chinese-speaking brain,
1. 违法犯罪 is a coordination phrase, not a noun-modifier phrase, like 报刊书籍 "Newspaper and books". That is, "illegal acts and crimes". Note that, while crimes are illegal by definition, illegal acts are not necessarily crimes: for example, smoking weed in China is a violation of law, but not a crime (though someone must have committed a criminal act in order to have someone else to be able to violate this law). This kind of asymmetricity in coordination phrases is not uncommon; cf. 调查研究 "survey and study" – you can't really study before you survey.
2. 合法犯罪 is a comical oxymoron, coined in reference to the term 违法犯罪 with high cooccurence. This term does not appear on Zhihu at all by a direct search. While the explanation above are plausible, it does not feel to me that this meaning is inherent in the word itself.
3. Whoever translates 违法犯罪 as a noun-modifier phrase has bad skills in at least one of the two languages involved.