Those Wise Restraints that Make Men Free: Legal Reform with Chinese Characteristics

May 2, 2011 § 1 Comment

By Rebecca Liao

Since the late 1930s, the President of Harvard University grants degrees to the graduating law school class with the following exhortation: “You are ready to aid in the shaping and application of those wise restraints that make men free.” The quote comes from John Maguire, professor at Harvard Law School from 1923-57; it is also on a plaque in the main stairwell of the law library in the hopes that graduation day would not be the fist time students came across the idea. At first blush, “wise restraints” seems to simply be a more poetic name for law. If law school and legal practice teaches us anything, however, it is that the law is much more than its ostensible elements because it is very rarely clear. It is an infrastructure based on words and renovated with only partial visibility of the existing structure. Since the law is not self-evident and self-supporting, it relies on other sources to identify what it is: yes, history and divination of intent are popular, particularly on the United States Supreme Court, but lower courts more commonly look to “policy,” which is just shorthand in the legal profession for the social goals behind enactment and implementation of the law, how the law should relate to others in its space, and, more fundamentally, the social and moral values the law touches upon. These are the “wise restraints” on the operation of a society—law is merely their codification. For a society in which the rule of law is taken for granted, they serve a chiefly utilitarian purpose, their influence on law is incremental and most evident in the outcome of cases. For a society just building the rule of law, there is no buffer between them and how that society is run. Defining these “wise restraints” therefore becomes a frequent and essential exercise.

The People’s Republic of China embraces restraints, many of them wise. A religious devotion to economic growth has facilitated an equally expansive development of corporate law. The Chinese Communist Party (CCP)’s public relations campaign releases prominent dissidents, such as lawyer Xu Zhiyang, under guarantee, which allows them to leave police custody while their movements are monitored for about a year. Labor unrest, one of the most potent challenges to stability and government legitimacy, is often the most successful form of protest: the Shanghai truckers who blockaded one of China’s largest container ports two weeks ago in anger over high fees and gas prices won fee concessions from Shanghai authorities without encountering riot police. Posters in major cities encouraging people to not spit and litter and the inelegant, piecemeal adaptation of foreign criminal procedure are both part of the Chinese drive to further modernize and self-improve. Though less visible, a flourishing publishing industry and rise of the avant-garde artist community, untouched by censors, have placed China squarely in the mix of the international intellectual conversation. Above all, the Chinese are consensus-minded. The government’s recent espousal of “harmony” touches a deep chord in Chinese relationships, from the family unit to the individual’s interaction with the state: peace and stability at all costs, happiness and contentment not required. None of these “wise restraints” have done their job perfectly, but they exist and are permanent residents, at least for the time being.

Interestingly enough, the statue of the philosopher who popularized the idea of social harmony was removed from Tiananmen Square two weeks ago, after a mildly controversial four-month stay. While few in China disagree with his teachings of ethical behavior, respect for elders and obedience to authority, Confucius ran into trouble with Chairman Mao, who blamed his “everything in its place” philosophy for China’s pre-Liberation feudal system. Confucius has enjoyed a revival since the rejection of Maoist ideology, but placing a 17-ton statue of his likeness across from Mao Zedong’s portrait was too much for a few influential leaders in the Central Party School. As a symbol of China’s imperial past, Confucius is understandably as passé for the Chinese as the hutongs in Beijing that are making way for modern buildings.

What the party leaders surely realize, though, is that Confucianism has never been, and never will be, a trend. Its ethical and cultural teachings are part of the Chinese DNA. If the leaders are looking to reform a country and claim credit, they ought to learn from someone who has experience leaving an indelible and beneficial ideological imprint.

Confucius and his contemporaries from the Hundred Schools of Thought worked during the turbulent Spring and Autumn Period and the Warring States Period, both fraught with fierce political struggle and regional warfare. That intellectual output flowered when survival was the prime concern is curious. During such bleak periods, ideas about social order tend to fall into the freedom or order camps—a very practical and quick system for finding solutions to urgent problems. What the philosophers of this period were able to do was reframe the problem from one of finding “wise restraints” designed to increase the chances of survival to “wise restraints” that promote far more important ideals. Both approaches have the same goal: a harmonious society, but the latter aims to put in place a mechanism that pays dividends over the long term instead of reacting to immediate concerns based on the instinct for self-preservation. Modern China and the CCP are entering the phase of development in which the long-term perspective is the only one that makes sense.

For all the stratospheric annual growth rates and whispers of a new superpower, it is important to remember that China was able to achieve both through near uninhibited capitalism. The income gap has, as a result, increased well beyond sustainable levels, and the name of the game in Chinese society is survival. Most Chinese citizens work incredibly hard and sacrifice an inordinate amount, only to be deprived basic needs such as education, health care, and sanitary living conditions. Their efforts are the baseline necessary to tread water; upward social mobility further requires backdoor dealings and ruthless competition, both of which are manifest in the rampant corruption in governmental entities and corporations. Economic development has afforded Chinese citizens more contact with the outside world, and their sophistication and frustration are estimable challenges to the stability of the country and the legitimacy of CCP rule. Between addressing social problems and quashing dissent, the latter is the far easier short-term solution. The CCP’s paranoia over the false alarm that was the “Jasmine Revolution” revealed a fragile and unsteady psychology behind its displays of power. As is the case with many in China, the party’s position is at once enviable and precarious.

Even the staunchest free-marketeers will admit that laissez-faire does not preclude the rule of law, for law is meant to quell the rage of survivalist instinct. The arbiter of these laws is different depending on the narrative of social relations. Let’s start with one more palatable to the Chinese government: in a Hobbesian worldview, the benevolent dictator ensures order and prosperity for his subjects. In order to be effective, this dictator needs to be rational in the economic sense, maximizing self-interest while realizing that happy citizens are in his best interest. The catch is this: a rational dictator should discover at some point that absolute power corrupts absolutely, not just in terms of its effect on personhood, but because it maintains the illusion that it exists. Absolute power is a fantasy with a short shelf-life. It eventually isolates the dictator to the extent that he loses touch with reality. To maintain his efficacy, he needs to first subject himself to a mechanism for keeping abreast of the state of things and how best to address them. That is, he has to admit the limits of his knowledge and authority to absorb a necessary diet of new ideas.

If the end game sounds a lot like a system of checks and balances, it is. While unthinkable on a macro level, the Chinese government has begun to implement such a system in certain pockets of the law, most prominently in criminal procedure. The recent crackdown on human rights lawyers, artists and other political activists has demonstrated, however, that where such procedures have been imperfectly drafted, no attempt has been made to amend them, and where they provide for police discretion, judgment calls are never challenged or reviewed.

Ai Weiwei’s detention is a good example of these shortcomings in the pre-trial phase of prosecution. Ai has been in detention for nearly a month now without any notification of his whereabouts or the specific charges leveled against him. The Criminal Procedure Law states that a person may be held for up to thirty days only in limited circumstances. Notice of detention is not required if the police believe that it would interfere with their investigation. Despite assurances by the Lawyer’s Law that suspects have the right to meet with their attorneys without exception, the CPL allows investigators to prohibit such a meeting if the case involves “state secrets”. Invariably, the police find all exceptions applicable in sensitive cases of a political nature. Neither the judiciary nor the procuracy (prosecutors) are able to review these decisions.

In the case of lawyer Li Zhuang, who had been sentenced a little less than two years ago for “lawyer’s perjury” (encouraging a client to give false testimony) and tried again last month for enticing a witness to fabricate evidence, his appearances in court strongly suggest that the judge, prosecutors, and police acted in concert to ensure a guilty verdict. In both trials, no live witnesses were called—the only evidence was written witness statements, which cannot be cross-examined to test for veracity or coercion. During the sentencing phase of the first trial, Li angrily yelled out upon receiving his sentence that he had been framed and was recanting his confession, leading many Chinese legal experts to believe that he had confessed under false guarantee of reduced jail time. The judge did not further investigate. Before Wen Qiang, Chongqing’s corrupt police chief, appealed his guilty verdict, Judge Wang Lixin, who presided in the trial, posted his diary to the official website of the Supreme People’s Court. In it were accounts clearly showing that trial prep responsibilities were being coordinated in meetings between himself, the attorney general, and the police chief that took place before the trial commenced.

A legislator, an enforcer, an interpreter—a robust system of law may not require all three roles, but it certainly requires all three perspectives. For how complete can the law be without someone to create and prune it, someone to clarify it, and someone to implement it? Where one or more perspectives are toothless, their adoption is the next step in developing the “wise restraints that make men free,” one level of abstraction above ingrained social values, one level below a self-governing system of laws that makes a benevolent and functional government possible. These restraints can only be established if a society trusts their potential to bring about growth and longevity. Reform must present a new face to a country unsympathetic to it. For the CCP, reform should be understood as a long-term strategy that works with reality, that realizes no state can be all-knowing without a means of outside education and improvement, and no lawyer can be cowed into silence for long.

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