There are differences in the way one can go about making critiques of the Chinese political, constitutional. legal and economic order, Each of these different paths to critique 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, 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).
It is in this light that Flora Sapio, Jean Mittelstaedt, Shaoming Zhou, Sun Yuhua, Jade White, and I considered these issues in a particular context.
The following commentaries are responses to A Looming Crisis for China’s Legal System, by Jerome A. Cohen.
First of all, the article provides accurate truth to a large extent. The author’s attitude towards truth should be respected and appreciated. However, since I do not focus on legal history research, I cannot guarantee that all the details are accurate. In addition, I suggest adding determiners before the subjects for more precise expressions. For example, adding “some” to the sentence, “Talented judges and lawyers are leaving the profession”, is a more accurate description because clearly, not all talented judges and lawyers leave the jobs, and not all the ones that choose to stay are talentless. Also, in my opinion, the expression “The current leadership has rejected many of the universal legal values” is somewhat exaggerating. It appears that only a small portion of universal legal values is rejected by the leaders, rather than the majority.
Secondly, I agree with the majority of Cohen’s opinions presented by facts. However, unfortunately, some opinions are more revolutionarily innovative or insightfully, but rather common sense among Chinese legal personals. Despite that, four critics provide the opposite opinions. I would like to contribute my own understanding on these commentaries with critical defense.
On a large scale, Larry Backer, Flora Sapio, Jean Christopher Mittelstaedt, and Shaoming Zhu share a common view, which is that western values are not appropriate standards for estimating China. This belief, which marks a progress in western scholars’ understanding of China and meets the goal China has been trying to achieve for centuries, should be highly respected. For example, Cohen’s belief that “DIC process is entirely without constitutional or legal authority and is a blatant violation of the constitutional rights of the suspect” is reasonable; however, as a common practice resulted from thousand years of tradition, DIC process is commonly accepted by the people and the legal professionals, even though the governing party can make an effort to make the process more transparent to make it more justifiable.
In my perspective, however, the four scholars overemphasize the uniqueness of Chinese setup. This so-called “western standard” can be exemplified by judicial justice, which is a worldwide practice rather than western practice alone. The documentation on judicial justice is the same across countries. At least in the Chinese historical documents and artworks, many famous cases and executors are portrayed with similar characteristics that have no fundamental differences as the ones in western documents. As a result, using some so-called western standard, in fact universal standards, to measure China, or even the United States, is appropriate. If these basic standards are missing, as Jean Mittelstaedt points out, the economic prosperity and social stability that China urges for are superficial and lack substantial meanings.
Furthermore, I hold some opinions on some detailed analysis commented by the four scholars.
Cohen points out that “In China, politics continues to control law.” Professor Baker refutes such commentary by suggesting that political enforced laws are essential in any political systems, so it is unquestionable that politics control law. I believe that professor Baker’s refuting commentary is weak, because the “politics” and “control” Cohen refers to be different from the “politics” and “control” in meanings and extensive denotation. The “politics” in Cohen’s article refers to the politics in the context of the Chinese language, rather than politics from a pure political view. The term denotes to general governmental interventions, which is not the same as political actions under strict lawful activities. In China, if a judge insists on proceeding strictly based on law, regardless of the “instructional suggestions” provided by the party and the government administration, this judge would be mocked for “lacking political sense”. As for “control”, professor Baker refers to specific interventions and advantages, while Cohen means the influential relations from a macroscopic view, the basic principle of Marxism. So professor Baker’s attempt to defend China’s political control laws from this perspective should not be appreciated.
In addition, in the beginning of the article, Cohen mentions that “Talented judges and lawyers are leaving the profession”. I disagree on his claim that lawyers exist the profession. To comment on lawyer’s demission, according to my understanding, layers who decide to leave the profession can be categorized intro two groups: the first group being lawyers who are committed to corrupted behaviors, and they have to leave the profession under the anti-corruption movement in order to avoid investigation; only the second group corresponds to the “talented judges” Cohen refers to. The “talented judges” share some common characteristics: they often times receive professional education in law and have high professional knowledge. Some of them, mostly young, have great expectations and ideals for law. I will further discuss this group of people’s decisions for leaving the field.
This group of law professionals was born between mid-late 70s and late 80s. During the time since the start till the end of their career, they have experienced the dark regression period of legislation, which is marked with stability being the most important factor. “Stability”, a word with motive meanings in the first place, provides encouraging environment for China’s development in all areas. However, during the seven or eight year’s executive period, the work “stability” has involved and distorted its original meanings. In judiciary, if the party, which is not supposed to win the case, acts “aggressively” and “demanding”, threatening to march in public or commit suicide, would win the case in exchange for “stability”. Similar situations evolve to become especially serious later on. These actions of confounding the truth result in serious discouraging social customs, affecting the court’s reputations. As a result, these young talented are unable to realize their ambitions. In addition, due to the low salaries, they struggle to survive with the current jobs. Later on, new leaders brought forward the principle of “ruling the country by law” and urged for legislation reformation. This group of young lawyers relied their hope heavily on the new policy and false believed that the best time had arrived. However, when realizing that the legislation reformation lacked effective enforcement and provided little help to the principle of “ruling the country by law”, they decided to quit their jobs. Why not wait a little longer with patience? Since this group of people are at their thirties and early forties, they are not willing to wait longer and risk the opportunities to restart and develop in other fields.
What underlying factors made these people disenchanted? According to doctor Zhu, to understand why judge choose to leave the profession, “quota system for judges” needs to be discussed. Indeed, note that the judges quota policy is not the essential cause of job demission, but rather the last straw that breaks a camel's back. Regardless of western values, or Chinese values, appointing judges with professional quality and belief in justice is the right approach. However, in many cases, the quota system for judges follows the old custom of seniority rule. Those who survive the system are the elderly, high-position people who receive no formal law education or any formal education at all. A large portion of these people was born in the fifties and sixties, and they entered the court around the late seventies and early eighties. It was during their growth period when the Cultural Revolution, which advocated the abolishment of college education and diminished the importance of knowledge, took place.
Lastly, to comment on Kong’s central argument that talented judges and layers leaving the profession will lead to crisis in China’s law reformation. This assertion lacks support and presents logic flaws. Why do these people present crisis to the system? Only because the talented leave the field, and the untalented stay, the judicial justice is affected? His concern is reasonable; however, even with a group of people quitting, there is continuous flow of new professionals who receive profile education in to the profession. Chinese people have a strong and fierce urge for governmental power, and thus governmental positions. Or, the crisis is caused by actions taken by people who leave the profession? In general, they are likely to be better off after quitting their jobs, at least economically. They are unlikely to feel motivated to take any actions against the law reformation. On the contrary, they might push forward the law reformation towards a better direction. Of course, it is a serious and disappointing problem that the talented are leaving the profession. But it is only the surface of the crisis; the crisis, unjustified execution of the quota policy, itself forces people to quit their jobs.
In my opinion, at the current stage, the fundamental crisis for legislation reformation has yet to appear, and the only possible crisis might be failing to develop towards “ruling by law”, or in other words, refusing to appoint professionals as judges and using artificial “stability” to suppress judicial justice. Doctor Zhu points out that “whether China will establish a predictable, reliable, and independent legal system does not reply on the lead by the part, but rather people’s worship for law”. I disagree with his view on this point because the communist party’s leadership and intervention in all areas are results of the historical background and actual facts, which lead to the party’s fundamental functions on the legal reformation, as well as the legislation system’s dependence on the leading of the party. As for “people’s worship for law”, it is almost nonsense in China because in the context of China’s legal culture, law is used as a tool rather than the goal. People believe that good law can bring justice, but they are unlikely to believe in law itself. Suppose people truly worship law, it would be an outcome of the success of legal reformation, rather than cause. This is a basic mistake of confounding the cause and the outcome.