Tuesday, February 23, 2016

Ruminations 61: Justice, Law, and Context; Flora Sapio on "Justice: Socialist Core Values, Symbols, and Performance"

The Lund University, Centre for East and South-East Asian Studies will be hosting an open lecture by Dr. Flora Sapio, entitled "Justice: Socialist Core Values, Symbols, and Performance" 24 February 2016

Flora Sapio, one of the most astute scholars of China in the West, a postdoctoral fellow at the Centre 2004-2006, and currently a researcher at the Centre on China in the World, The Australian National University. She is an internationally renowned authority on CCP legislation, Chinese criminal and criminal procedure law, and the author or the editor of Sovereign Power and the Law in China (Brill, 2010); The Politics of Law and Stability in China (Edward Elgar, 2014); Legal Reforms and Deprivation of Liberty in China (Ashgate, 2016), besides other works on criminal justice in China.

The presentation may be accessed at Dr. Sapio's web site, Forgotten Archipelagos here.

The abstract and my brief comments follow.

Justice: Socialist Core Values, symbols, and performance
Flora Sapio

Presentation given at Lund University, Centre for East and South-East Asian Studies
24 February 2016

Justice is a complex idea to analyse in any system. In the People's Republic of China, Justice (公正 gongzheng) is not only a concept in moral philosophy, or political philosophy strictu sensu. Even more importantly, it is one of General Secretary Xi Jinping’s Twelve Socialist Core Values, and a key component of the morality and customs of society. Therefore, while the idea of justice is embedded in the political-legal system, it can also be embodied in fields and activities that go beyond the narrower structures of politics and the law. In this sense, the value of justice – not unlike the other Twelve Socialist Core Values – traverses various fields of knowledge and activity. It cuts across culture and the arts, politics, legal theory, and the practice of law. It is expressed by and through all of these fields. The main questions pursued in this presentation do not concern what constitutes justice in relation to the Twelve Socialist Core Values. The presentation instead discusses how the value of justice is embodied in those symbols which are most representative of Chinese culture, and acted upon in high-profile criminal trials by political-legal organs, the public, and Chinese as well as Western media.



The relationship of justice to the social and legal order has long appeared to be both fixed and contingent--symbolic and performed. It's values are peculiar to itself--reflecting both societal and temporal context--and also common to all communities. The West has an ancient set of core values still powerful (at least when its elites are required to recall them) in the operational life of society and its governance instruments. Its object is justice, is symbol is law and its interpretation is performed by the governance community itself. Recall the summation of these Western core values in the very beginning of the Institutes of Justinian (Book I title I) "Justice is the set and constant purpose which gives to every man his due. . . . . The precepts of the law are these: to live honestly, to injure no one, and to give every man his due. . . . Jurisprudence is the knowledge of things divine and human, the science of the just and the unjust."
All strong societies have a listing of some sort of "core values" that are natural in the sense that it must relate to biology (people are born, die and reproduce, etc.), peculiar to itself at any stage in its historical development, and common to all peoples attempting to constitute its own core values. Its object (the ideology that must be signified through the construction of its symbolic structures and objects); it is symbol (the signification of object) and it is performance in the sense that it must be observed and acted out both internally and in the everyday actions of people, institutions and relations bound by it. The Chinese now have their "Twelve Socialist Core Values", at least for as long as they will keep them; the People of Israel had their "Ten Commandments"; the Romans their "Twelve Tables"; etc. These are each at once the acknowledgement of the ideology that is meant to be activated through the infusing of signification in certain ritual objects--tablets, writings, pronouncements--and their contents which are also symbolic. The signification of these symbols become operative as ideology as a society performs its symbols--by applying its core values to the organization and structures of life within the community bound bu it. That performance involves both individual acts of interpretation (the process of values internalization and outward expression in behavior) and communal acts of interpretation (through its structures of law and coercion).

It is with this in mind that one might best start the consideration of the marvelous presentation by Flora Sapio. Sapio starts with an important baseline--the notion that the concept justice itself--as its own object--can be an amalgam of fractured meaning. She notes that Delia Lin (2016) has identified at least eight different terms that are used, in Chinese language, to refer to justice. They are: “yi (义), buyi (不义), zhengyi (正义), gongyi (公义), gong (公), gongzheng (公正), yuan (冤) and qu (屈).” And yet the reference to justice within the Socialist Core Values references only gongzheng (公正). (Justice: Socialist Core Values, symbols, and performance, supra). And then, she notes, the concept of gongzheng (公正) is itself constrained by a distinct term--socialist.

Together, what has become of justice? Well in one sense--nothing. From the most basic level, justice remains constant, and peculiar--to give every person their due (using the language of the West for a Western audience that might still remember the power of these words in their own cultural context). And yet on another sense justice has been profoundly reconstructed in ways that suggest a re alignment of a hierarchy of values as between what is peculiar to China and common to the rest of the world, and also what was central to Chinese self conceptions in the past and toward the future. For what gives every person their due--the ideology of justice--is now fundamentally shaped by the value structures of "socialism" and its dynamic construction within China in the present and toward the future.

Sapio notes that justice itself, as so constructed, is itself only one of the core values that mark the values-ideology of China.
The Twelve Socialist Values are 'Core' Values because each one of them is a key component of the national spirit (民族精神 minzu jingshen) of Chinese society. Together, the Twelve Socialist Core Values constitute the national spirit as it exists at this point in history, and as it has always existed. In China, commentators have not gone further from this point, stating that the Twelve Socialist Core Values constitute a 'value system' (价值系统 jiazhi xitong), and that each one of them exists on a different plane (层面 cengmian). So while wealth-and-power, democracy, culture, and harmony are values that exist at the state level, justice is one of the four values that exist at the societal level. (Justice: Socialist Core Values, symbols, and performance, supra)

If justice itself is contextualized then does it suggest a radically different understanding of justice, radically different, that is, from what has emerged int he West? Justice appears not within a hierarchy vertically arranged, but among a set of values each of which may be functionally differentiated and each of which may be consigned to its own sphere. That raises the possibility that there may be spheres where each of these values may not reach. And yet that might not get at the concept at all if one emphasizes the unity of the core values and their inseparability. In which case socialist principles of collectivity would read these collective values as a unity. That is, Leninist principles of collective action, of joinder (one concededly long past the time for further theoretical refinement given the realities on the ground in China at this stage of its history) themselves may serve as the meta-modifier of the values and provide the techniques for their joint application. A more traditional reading might instead interpret this signifier of values--the twelve principles--as the partitioning of the values spheres among distinct territories (spheres) within which each might operate supreme.

Whichever the case, the question poses a further one--grounded in the basis for interpretation, and not by outsiders to China: should the touchstone of analysis of this subtle conception of justice be understood only in comparison to the West, or in dialogue with itself and its own internal logic? Our own ancestors in the West would have a straightforward answer--by seeking to understand it as it understands itself first, before seeking an understanding rooted in comparison. That is, after all, the fundamental logic of Western notions of justice, if one takes the Institutes as its starting point. Sapio notes the difficulties of comparison, even at the level of symbol, in an insightful discussion that used two mythical figures: Themis, the Greek Goddess of Justice, and the xiezhi (or xiezhai), a mythical animal of the Chinese tradition. And she uses comparison effectively as a means of sharpening the interior meaning of each of the subjects compared in the process of comparison.

Sapio notes the possibility of bridging the differences in the symbolism of the huabiao column (华表) and its strong signifier of justice in temporal and abstract space. This "brings us back to the myth of the xièzhì. Values that belong to a cultural tradition are literally embodied by those symbols most representative of that tradition. In the case of China, the symbol that best represents justice are not the huabiao columns on Tian'anmen Square but, the xièzhì." (Justice: Socialist Core Values, symbols, and performance, supra). It is to the connection between the symbolic (xièzhì) and the abstract (gongzheng) that provides a basis for developing the concept of justice within the context of the twelve core socialist values intertemporally in China. And it is only thrugh that analysis that the insights of comparison become useful.

Sapio notes the strong symbolic connection between xièzhì and Themis but in Chinese terms, but as judgement, the consequence of justice.
Perhaps, not everybody knowns how the three drops of water radical on the left symbolize the waters close to which the xièzhì once lived. These waters were later imagined to be as even as the judgment of the xièzhì...or the scales of Justice. At the same time, if stirred, they could kill as implacably as the xièzhì's horn..or the sword of the Themis. The horn of the xièzhì, and its supernatural ability to drive off (qu) lies and insincerity are stylized in the right part of 法. As the Themis, the xièzhì does not see injustice through its own eyes – he perceives injustice. (Justice: Socialist Core Values, symbols, and performance, supra).

But it also brings us back also to the connection between xièzhì and law, " sometimes literally calling on to it, is in the shape of the character gao/告, as it is used in all those composites which, as 控告, 原告, 被告, 告状 relate to the making of accusations against a natural or legal person, or to the state of being accused." (Ibid). And that brings us back from the mythic to the transformation of the mythic within the emerging mythos of socialist justice: "In Chinese mythology, the power to call on to the xièzhì was a prerogative of Magistrate Gao Yao only. In China, today the law – the 法, a modern incarnation of the unicorn-goat, has gifted everyone with the same power." (Ibid). The object, justice, has now been signified as symbol, as value, as direction and as norm. It is only left now to shape the interpretive community.

And to that end the socialist part of the construction of justice becomes central--and here we come to another understudied concept also critical to socialist justice, and that is the nature of the leadership role of the vanguard party. That vanguard role changes the signification of the individual within the interpretive community within which justice is performed beyond the mythic. Everyone, Sapio correctly suggests, may now call on justice--but everyone is not every body. Justice, then, signifying its normative elements, is constrained now not by Magistrate Gao Yao, but by the signification of the vanguard and by the vanguard's own constraints in socialism. It is the vanguard that now calls on justice for everybody, constituting a form of interpretive community that is itself the signification of the people it leads. But only to the extent it itself acts justly--it does not control justice, it may just call on it. THAT is the fundamental insight of the relationship of Gao Yao to xièzhì and of the vanguard to socialist justice.

And it is to the consequences of that relationship that Sapio elaborates here insights. She considers injustice and Wu Ying, to identify xièzhì in socialist justice. The Wu Yng case was famous, and perhaps notorious for the scale of financial fraud, for the extent of the potential collusion of local officials, and for its use in the West as a point of discussion about China. And it is here that she quite insightfully brings us back to the comparative element, applied and misapplied by the West. Indeed, the heart of the analysis--the parallels of the mis-conceptions drawn from the comparisons of the symbolic, the relationship of Themis to xièzhì, now reveals itself fully in the much more immediate context of the West's approaches to an understanding--and to the use (for their own purposes both with respect to internal Western conversations about law and justice, and with respect to conversations about relations between the West and China)--of expressions of Chinese justice as both exotic and relevant. In the process, of course, the West tells us more about itself than the object of its study. And as to that object of study, they misperceive, precisely because they are perceiving themselves through the Chinese mirror which cannot but distort its own self image. Thus, Sapio notes, "Oblivious to the fate of Wu Ying, the Anglo-American and European media advanced positions compatible with PRC pronouncements on the death penalty, on financial reform, and on enhanced public supervision of and participation to decision making." (Justice: Socialist Core Values, symbols, and performance, supra).

Yet the Chinese would have had to see something quite different--something that spoke to justice unmoored from those with the obligation to lead to justice. The case suggests xièzhì out of control, and beyond the call of the leadership of the vanguard. Sapio distills these well as three possible constructs: spectators of justice, public opinion and the surrounding gaze. The first touched on the role of the community in the performance of justice in the Au Ying case. It was clear that the effort was powerful, was not managed, and could not be well fitted within the symbolic constructs of socialist justice. The second touched on the related notion of public opinion. If the first touched on a passive performance--watching--the second touches on its consequence, reacting to what is observed. And the role of public opinion produces signification of justice far afield from, but now with heavy influence on, the formal proceedings. There is an underlying Chinese issue here that also requires substantially greater elaboration--and emancipation of the mind. That concept--the mass line--though derided both within and outside China in some circles, has the potential for managing and disciplining, for producing synergy, within the signification and performative process of interpretation that is socialist justice. That would certainly free the Chinese from the not inevitable connection between public opinion and the "ideal liberal-democratic polity" that Sapio notes. It remains, though, substantially unexplored. Last, Sapio quite astutely connects the acts of watching and reacting as a collective event. But this presents an important contradiction, for this collective gaze is not that of the leadership collective of the vanguard, but rather that of those who were touched by the events. It is here that the problem of the connection between moral agency and the concept of 'surrounding gaze' (围观/weiguan ) acquires its socialist dimension.

Together, these suggest the disconnection between signification at the symbolic level--the conceptual elegance and sophistication of signifying socialist justice--and the level of interpretation, of bringing the symbolic to life. And that, perhaps, poses the greatest threat to the elegant construction of the twelve socialist principles and of justice within it. The problem is not Chinese per se. The problem is disciplinary, and performative. The problem is not with truth, bit with the facts of its elaboration. It is that move from the symbolic, the failures of which continue to dog the West, that China must now in turn choose to make. It is not enough to call on xièzhì, for xièzhì will only come to those worthy--a necessary step to move from conceptions of gongzheng (公正) to those of socialist justice in the Chinese context. And that, one assumes, is what Chinese authorities are seeking to work through within the conceptual framework of the twelve core principles.  

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