Thursday, February 25, 2016

Democracy Part 33: On Democratic Legitimacy in Theory and Implementation--Considering Jerome A. Cohen, “A Looming Crisis for China’s Legal System: Talented Judges and Lawyers are Leaving the Profession, as Ideology Continues to Trump the Rule of Law”

(Pix © Larry Catá Backer 2016)

Issues of democratic legitimacy of the Chinese political, constitutional. legal and economic order are fairly common in the West.  Indeed there are legislative institutions in the U.S. Congress whose sole business is the production of such critique (e.g., the U.S. Congressional-Executive commission on China). 

But there are differences in the way one can go about making those critiques, each of which might produce substantially distinct insights. In the West, for example, it is common to apply what I call the outside-in approach.  That starts from the set of premises extracted from global consensus or the reading of democratic traditions among influential states, and then projects those into China, comparing how the Chinese approach stacks up against these outside models.   A less common approach, but one sometimes used by comparative scholars is what I call the inside-out approach. This starts by a rigorous examination of the system to be examined, both the theory and practice of governance, and then projects those out against a set of foreign markers. The outside-in approach tends to reveal more about the foreign system projected inward and the extent of global harmonization, along with the character of that harmonization. The inside-out tends to provide greater insight into the working of the system examined and the extent to which the gaps between theory and implementation reveal weakness, including coherence in form or function that might be advanced through a study of foreign systems. 

Jerome Cohen, Professor of Law at New York University, one of the great scholars of China in the United States,  has recently produced a marvelous essay that for me highlights what may be some effects that follow the choice of methodology (Jerome A. Cohen, “A Looming Crisis for China’s Legal System: Talented Judges and Lawyers are Leaving the Profession, as Ideology Continues to Trump the Rule of Law,Foreign Policy (February 22, 2016)).  The essay provides a powerful consideration of the consequences of the current Chinese approach to legal reform and its suggestion of the underlying structural deficiencies of the current normative Chinese political order.  These judgments are made against an application of the standards of universal legal values which China has endorsed.  The essay suggests the value of an outside-in approach.  But it also exposes the possibilities for a distinctive approach and another potentially rich vein of analysis using an inside-out approach.

It is in this light that Flora Sapio, Jean Mittelstaedt, Shaoming Zhou, Sun Yuhua, Jade White, and I thought it might be useful to consider Professor Cohen's excellent article. To that end each of us prepared a short engagement with distinct sets of insights developed by Professor Cohen (Introduction here).

The responses may be accessed here, along with a Chinese language summary of the comments:
Part I: Larry Catá Backer
Part II: Flora Sapio
Part III: Jean Mittelstaedt
Part IV: Shaoming Zhou
Part V: 中外学者中国法治改革的关注与讨论.
Part VI Sun Yuhua
Part VII White Jade; (English Version HERE)

This post includes Larry Catá Backer's response. 

Considering Jerome A. Cohen, “A Looming Crisis for China’s Legal System: Talented Judges and Lawyers are Leaving the Profession, as Ideology Continues to Trump the Rule of Law” (Foreign Policy (February22, 2016))

Larry Catá Backer
February 25, 2016

I very much enjoyed and learned much from reading Jerome A. Cohen, “A Looming Crisis for China’s Legal System: Talented Judges and Lawyers are Leaving the Profession, as Ideology Continues to Trump the Rule of Law,” Foreign Policy February 22, 2016. The essay is rich with insight that is both important and worthy of serious discussion. I take this opportunity to briefly engage with some of the useful insights elaborated in that essay. To that end I will focus on what for me were key elements in the points made and insights drawn from the essay.  Professor Cohen's excellent essay provides a useful springboard for an inside-out analysis of the crisis he examines from the outside in.  Professor Cohen's analysis is useful as well for illustrating the important differences that arise through the mere choice of analytic methods. But it is useful as well for suggesting similarities.  Both approaches arrive at similar conclusions. Both acknowledge roughly similar outlines of issues that suggest gaps between truth and fact that suggest remaining deficiencies of legal implementation.  Yet these similarities in ending points are reached from substantially different frameworks; and those differences are critically important for considering the best path toward reform, that is for the substance and methodologies, for the scope and approach, to reform that may be suitably considered in the local context. It also suggests that too exclusive a reliance on any one limits the ability to enrich understanding.  Lastly, the differences in analytical approach also suggests the value of cultivating sensitivity to these differences not just in the analysis of China but of the United States as well. 

1. “In China, politics continues to control law” (Jerome A. Cohen, “A Looming Crisis for China’s Legal System, supra.). This is a curious opening statement. First in all states politics continues to control law. That is the essence of all political systems and especially the democratic republics of the West which are grounded on an ideology that presupposes a vigorous relationship between politics—from the selection of representatives to legislative ad executive offices—to the lobbying which is a means of direct engagement in a political process that produces law. Second, if politics does not control law then what does? In our global orders one notes three distinct possibilities. The first is rooted in God; that is the essence of theocratic systems. The second is natural law; but even natural law requires the political acts of consensus and acceptance. The third are systems of traditional law or the systems of law, divorced from executive authority, that was the basis for some of the multi-systemic governance orders of the medieval period in European history. Third, the statement may imply another—the common charge, especially among Western commentators, that China does not have a legitimate system grounded in sound constitutional principles that ought to constrain its political choices through the “law” of the constitution. Ironically this is itself a political argument, and one grounded in the belief that there is a natural law of political organization in which only one form of democratic system is legitimate and towards which all states must be made to embrace. Americans, especially, appear to be fond of this notion, and its underlying ideology, that their form of constitutional governance is the one to which all ought to aspire. Yet a number of commentators have suggested this this notion of the legitimacy of constitutional constraint, and its underlying ideology, are choices among many, and that it becomes harder to engage in a sophisticated analysis of China’s domestic legal order by starting with the overlay of the ideology of a foreign legal order.

2. “The current leadership has rejected many of the universal legal values that China accepted — at least in principle — under communist rule in some earlier eras” (Jerome A. Cohen, “A Looming Crisis for China’s Legal System, supra.). This is also an interesting statement in some respects. Let us take it apart and consider its premises. First the reference to the current leadership is a curious way of referring to the officials who were appointed to their positions in accordance with the governance structures of their system. It implies illegitimacy and amplifies the suggestion of illegitimacy in the first sentence. That illegitimacy is grounded in the statement at the heart of the sentence—that this leadership, these individuals, have rejected many of the universal values which the Chinese state has accepted. Here further amplification of lawlessness and of personal rule at the heart of the illegitimacy argument that lamentably tends to be the starting point of any Western analysis of Chinese legal and constitutional systems. But the statement it itself redolent with irony. For to support this implication if illegitimacy—it relies on the international commitment of individuals who the Chinese themselves have indicated themselves may have committed the error of cult of personality that the State and Party apparatus has sought to constrain in the years since 1978. Indeed, on the basis of the premises implied in the statement, the very commitments of the state made during the period of quasi personal rule might themselves be less legitimate in terms of the ideology against which these actions are judged, than the actions of the individuals who are the object of criticism in this sentence. As to those universal legal values, one encounters two problems. The first is the easiest. Just as the United States has failed to embrace a number of universal values, those in the International Covenant on Economic, Social and Cultural Rights, so has China refused to adopt the International Covenant of Civil and Political Rights. It is the latter from which many of these “universal values” might have been drawn. Just as the Americans would—and should—reject the notion that the American legal and constitutional system is illegitimate for failure to transpose the International Covenant on Economic, Social and Cultural Rights, so it is odd that China is criticized and its system deemed illegitimate for refusing, in turn, to recognize the International Covenant on Civil and Political Rights. The second touches on interpretation—that China has embraced universal values touching on legality is plain enough, though as a political matter and internal to its constitutional order. But these values, in turn, must be interpreted in accordance with the constitutional traditions of the state in which they are embedded. That last point, again ironically, is also a universal value and one much employed by European democracies through a number of doctrines, for example the “margins of appreciation” doctrines of the European Court of Human Rights.

3. “Today, for example, to talk freely about constitutional reform, even within the sheltered confines of universities and academic journals, is not a safe enterprise. And discussion of judicial independence from the Communist Party at the central level is a forbidden subject” (Jerome A. Cohen, “A Looming Crisis for China’s Legal System, supra.). One arrives here at the heart of the argument of illegitimacy, the consequences of which will be the subject of the rest of the essay. But the statement first fails to understand the framework and structures of Chinese constitutionalism, and second it judges that system not by fidelity to its own normative principles, but by the normative principles of a (to the author’s mind universal and superior) set of normative principles (those “universal legal values” referenced in the preceding sentence). It also does not contextualize discussion fairly. As the recent efforts by students at Georgetown University to chill discussion about the legacy of the late Justice Scalia suggests, both the United States and China have been moving toward de facto (if not entirely de jure) structures of sometimes severe control of discussion of fundamental political issues within “the sheltered confines of universities and academic values.” Yet there is something important here—to the extent that such a suppression of conversation itself runs counter to the values and principles of Chinese constitutional norms, then it ought to be a subject of strong criticism. And indeed, it is possible to make that argument on the basis of the principles that constrain both the State and the Chinese Communist Party. But it is the comparative not the internal, argument that is advanced here. And that is to be regretted, not because the comparative element ought itself to be avoided, but because the failure to arrive at the comparative discussion without a strong basis in the self understanding of the systems being compared, might well weaken the value of judgments that comparison might suggest.

4. “Yet there is discreet, if passive, resistance. Legal professionals are not happy, but they dare not speak for fear of losing their jobs. Some are simply giving up. In Beijing, reportedly, many judges have recently resigned in order to find other work, as lawyers, in business, or in academia” (Jerome A. Cohen, “A Looming Crisis for China’s Legal System, supra.). The obvious point first—it is ironic that having suggested that it has become difficult to speak of judicial independence in academia, that judges and other legal professionals are resisting by entering academia. If the object was to move to a societal space where discussion is possible, then these departing judges and legal professionals have chosen badly. If it is meant to register disapproval, it may have only limited effect. It is also possible to suggest that some of the reasons for the resignations may stem precisely from the consequences of judicial reform itself: for example, imposing greater risks on judges for decisions subsequently overturned, a fear of continued (and unlawful) interference by state and CCP cadres, and changing the structures of the judicial function in the ordering of trials. Thus passive resistance may go toward the form of the reforms rather than a discussion of them. And that discussion may not be public says nothing about whether discussions within the CCP itself are suppressed. This is an important distinction. If the CCP’s drive toward greater intra-Party democracy is effective, a good measure would be the extent to which these discussions are being had within the Party. As important, the lawfulness of the discouragement of public discussion might be usefully considered in light of the CCP’s core obligation to hear the people and them provide responses—the so-called mass line. Both mechanisms provide an excellent vehicle for discussion and criticism—to the extent that the Chinese state or Party apparatus are not living up to the requirements of their obligations. But that discussion is not made here, and need not, in any case, inevitably require the further implication illegitimacy. And, indeed, the rest of the essay appears to move quite usefully toward this sort of engagement. in the

5. The discussion, in the middle paragraphs of the essay, touching on the emerging structures of Chinese legality are both elegant and useful. The long march toward the construction of deep rule of law structures within China, and over a very short period of time (as the life spans of states are sometimes measured), suggests both the embrace of the universal values with which the essay started, but with Chinese characteristics, which the essay resists. And it becomes clear why: the problem is precisely the Chinese characteristics of the universal principles, especially as applied.

6. “Yet it’s not clear whether China can go on from here to build what we would recognize as a more predictable, reliable, and independent legal system” (Jerome A. Cohen, “A Looming Crisis for China’s Legal System, supra.). Here one can see the central insight of the essay. And it is a good one. But it also includes a curious perspective. That curious perspective is revealed in the phrase “”what we would recognize as”—not what the Chinese would recognize as, in accordance with the premises of their own native legal and constitutional orders, but what “we” would recognize. To my mind, that recognition must start first by “recognizing” the system from within its own principles and frameworks. And only then, and in that context, might the comparative element add something useful, something powerful, to the discussion. The object of that analysis—the predictability, reliability and independence of the judicial system—is as central to the Chinese system as it is to the American system. Both have encountered contradiction, and crisis, in the implementation of these principles. Yet one does not, merely because of the potential racism in police enforcement, in the corruption of criminal prosecutions and in the wealth based disparities of justice in the United States treat the American system as illegitimate. One would instead focus on reform—and target that reform to the closer connection between American ideals and American realities. The same ought to apply in any Chinese analysis, but tied to Chinese ideals and Chinese realities.

7. And in furthering that project there is as much to criticize about the realities of Chinese progress toward Chinese ideals as there might be in the progress of American progress toward American ideals. The essay powerfully points to some areas worthy of further interrogation: popular discontent, corruption, local protectionism, and guanxi. A useful point of comparison here might consider the way that the same sorts of discontents exist in the United States, are tolerated, produce risks or are effective in the U.S. context. The questions raised in the essay—powerful, insightful and well targeted—produce as much discomfort for me in the United States, as it ought to produce discomfort in China. The issue of judicial discontent, then, tell us that reform is an ongoing issue in China, but it does not necessarily provide us with a starting point for analysis within the context in which discontent arises, nor does it point to the sorts of objectives that might alleviate discontent. Indeed, it is not clear that Chinese judges would inevitably always seek the same solutions as their American counterparts, nor should they, except in matters of fidelity to the normative principles on which the state is founded.

8. “Despite his emphasis on “rule of law,” Xi wants local courts reliably to submit to the discipline of the central party and judicial officials. Despite his emphasis on “rule of law,” Xi wants local courts reliably to submit to the discipline of the central party and judicial officials. He doesn’t want local judges to be independent of the central government, but he does aim to stop the local influences that distort local judgments” (Jerome A. Cohen, “A Looming Crisis for China’s Legal System, supra.). This insight, powerful as a matter of comparison, nicely illustrates the difficulty of analysis form the perspective of an outsider which presumes that the world view of the outsider is entitled to deference as the grounding point for judgment. It goes to the issue taken up in the next paragraphs of the essay, the “relationship of the party to the legal system.” This distracts from am analysis that raises important issues that ought to be of real concern to China. Here is the problem—in a Party-State system like that in China, it is clear that the traditional Western separation of powers constructs do not work, or at least do not work in the same way. Instead, political leadership is vested in the CCP (which is itself constrained by its own constitutional ideology) and administered through the state apparatus. The courts are one manifestation of this state apparatus. To the extent that the courts engage in interpretation of the law generally, or make choices about policies implicated in the interpretation of law, it makes sense for such questions of law to be determined in consultation with the CCP. The equivalent in western systems would be the hypothetical question jurisprudence of some states and the role of the European court of justice. That this interpretative function is not a judicial function should be of no moment as long as it is not a means of disguising the exercise of unprincipled personal discretion. On the other hand, application of law in particular cases should lie at the heart of the protection of judicial independent. It is in the meeting point of law, judge and individual litigants that the political element of the state and Party ought to recede. But this understanding is as controversial in China as it would be elsewhere. Still, here we have a more productive router to analysis and criticism—within the normative parameters of Chinese constitutionalism, and from it outward. This might provide a more relevant critique of reform in action than any grounded on the simple logic of if it does not operate like ours it must be broken, which is the staple of Western criticism.

9. “The party’s role in criminal justice has become particularly evident in the current anti-corruption drive. In dealing with its approximately 90 million members, the party has been more important than the formal criminal justice system. . . . There is little transparency, but what is clear is that the DIC process is entirely without constitutional or legal authority and is a blatant violation of the constitutional rights of the suspect” (Jerome A. Cohen, “A Looming Crisis for China’s Legal System, supra.). Here is the heart of the lawlessness argument that underlies much of the essay. Yet that argument is founded on two fallacies. The first is that the Chinese constitutional system must be read against the template of that of Western constitutions. And the second is that the constitutional authority of CCP cadres lies in the state and not the Party constitution. Unless one takes the position that the only possible organization of political power in states is the template embraced by Western states over the course of the last several hundred years, it is possible to recognize the constitutional element of this purportedly unconstitutional system. One might understand the Chinese State constitution as the expression of the basic line of the CCP in its leadership role over the administrative constitution of the state. Those principles, but not the constitution, may be equally applicable to the CCP, but as principle not as or through the organs of state. As such it may be possible, and perhaps even necessary, to construct parallel systems of discipline to conform to Chinese constitutional systems and to Chinese law. The bottom line—within the parameters of the Chinese constitutional system—there is substantial constitutional and legal authority for the operation of discipline and inspection committees. That raises the more important issue ignored in the essay—the analysis of the compliance by discipline and inspection committees with the constraints of law and constitution. It is possible for discipline and inspection committees to be both lawful and to require reform, and perhaps substantial reform, to ensure that they operate within the constraints of Chinese constitutional principles. That requires something Westerners are loathe to concede—the constitutional status of the CCP and its own constitution. But that also imposes an obligation to apply the CCP constitution constitutionally.

10. “Ironically, China’s constitution is, in many respects, a reasonably well-developed document — the problem lies in its lack of enforcement. Attempts have often been made to enforce it in the courts, but, despite periodic wavering, the party has rejected them. The constitution, according to its terms, is to be interpreted and applied by the Standing Committee of the National People’s Congress. Occasionally, human rights lawyers and activists have petitioned to obtain the Standing Committee’s interpretation, but it is not eager to undertake its authorized role” (Jerome A. Cohen, “A Looming Crisis for China’s Legal System, supra.). It is in light of these quite distinct starting points for analysis—one starting from within the normative parameters of a foreign jurisdiction and projecting its values and the other starting from the normative parameters of Chinese constitutionalism and then in a global context—that one sees how the point made here by the essay can be understood in two quite distinct ways. For the essay, the failures to adhere to a particular reading of the formal framework of the Chinese state constitution is indictment enough, and enough to prove the point of the essay—the lawlessness of current reforms (understood as the failures of law within global normative standards applied to China). The failure to comply with the state constitution is indeed a weighty matter, but the solution may not lie within the state constitution, but within the interplay between State and Party constitutions. That is a necessary element to analysis that disappears in the Western embrace of state constitution formalism.

11. “The immediate future looks dim for legal reform in China” (Jerome A. Cohen, “A Looming Crisis for China’s Legal System, supra.). This conclusion is inevitable if the ending point of any analysis is the identity of Western and Chinese constitutional models, forms and habits. It is less inevitable if one concedes the possibility of systemicity within Chinese constitutionalism. But it also requires a significant attention to the sometimes large spaces between the Chinese constitutional systems as it is emerging as a self referencing and coherent system, and its application from the highest levels of state to the most humble villages far from the capital. It is to that project that both Chinese and foreign commentators might most usefully devote their efforts.


Flora Sapio said...

It is always difficult to add something new to any essay written by Jerome Cohen. I still have a vivid memory of the day when – as a student in Italy – I accidentally found The Criminal Process in the People's Republic of China, 1949–63: An Introduction in the academic library where I used to work. Many years later, I would be invited to visit New York University School of Law, where I spent four fantastic and extremely enlightening weeks giving talks, and doing research side by side with the greatest names in the field of China Law Studies.

Five years after my visit to New York University School of Law, things have changed, and we have entered a different stage of legal reform. Until 1978, a time when legal legal reform was proceeding at a much slower pace than today, the effects of change could be felt mostly within China's borders only. Today, China has become a global player, one which soon will play an even more significant role in shaping global norms. This fact alone justifies the close attention foreigners are paying to each one of the events that are taking place in different areas of China's legal system as I write. We live in a highly interdependent world, and the dynamics active in China's financial system, property market, and in each one of the other areas of the law, will no doubt set in motion similar processes elsewhere. A butterfly flapping its wings in Beijing can cause a hurricane in the European Union, America, Australia, or anywhere else in the world. This is neither rhetoric not metaphor, but one of the most important scientific truths discovered by American Mathematician Edward Lorenz.

The field of China Law Studies has always been highly pluralistic, and interdisciplinary. An easy categorization would be one that divided the field between the “Optimists”, and “Pessimists”, classifying the style, topic, and personal preferences of each scholar under neatly drawn categories. Beyond such an easy (and perhaps artificial) categorization, and all the differences in methodology, nationality, topic of research that exist, a minimum common denominator can be found.

Jerry Cohen's article refers to this minimum common denominator in an indirect way, and I am taking upon myself the task of explaining what this minimum common denominator is, and why it is useful. Jerry Cohen's reference are indirect because knowledge about this minimum common denominator is shared by all those who work in the field of China Law Studies. Therefore, the minimum common denominator does not need to be mentioned in an explicit way – it is an integral part of our worldview. It is something all of us know in a very good way.

To oversimplify a very large and complex body of theory (and perhaps even popularize it, since I am writing for a broad audience), the beliefs we all share are that:

(1) Law is an engine of development, broadly understood.
(2) The 'vanguard' of legal development – where my use of this term refers to someone who opens up a new road, and has got no other political connotation – is given by all those who practice law, in different ways.

Law and Development theory has been criticized on many different grounds. Some critics, particularly the most virulent ones, have displayed a greater talent in working on the pars destruens, than on the pars construens of their critique. If we are to make sense of the world around us, if we are to understand what direction legal reform is taking in China, we need a framework of reference. Despite its flaws, the framework provided by Law and Development theory is the one most widely shared and adopted.

This does not mean that the framework is perfect. As Karl Popper and Thomas Kuhn taught us, science – a broad designation which includes not only the hard sciences, but the social sciences as well – is made by testing and revising theories. Sometimes, these theories may work flawlessly, and yield accurate predictions. But, other times they may yield predictions that differ from reality.

Flora Sapio said...

We are at a crucial stage in legal reform, and Law and Development theory postulated that China would embark upon a trajectory of change different from the path legal development has taken in the real world. This fact alone could raise many difficult questions. As this is a response to Jerry Cohen's opinion piece and Larry Backer's comments, this is perhaps not the best site where an answer to these questions may be attempted.

I will conclude this comment by saying that using theory to predict which path to development a legal system will walk is always very, very difficult. This difficulty does not stem from Law and Development Theory itself. It does not stem from any flaws of this theory. A theory that has survived for more or less forty years of continuous tests and criticism is, as facts prove, a theory which is useful and good. Neither does this problem stems from us – all those who out of intellectual curiosity chose to study how law is in China – or from any limitations in our field.

The difficulty of predicting what will happen in China's legal system ten years from now stems from a problem of an entirely different order. This problem was first raised by David Hume. Is is a problem to which the greatest minds of Western and Eastern philosophy have given only tentative solutions. This problem has a specific name. In Philosophy, it is known as the Problem of Induction. But that, perhaps, must remain the topic of a different discussion, one more suited to my teaching in Methodology.