Friday, September 28, 2018

Summary Report on "China: Challenges and Opportunities A Conversation with Penn State and East China University of Political Science and Law Faculty" 中国:挑战与机遇 宾州州立大学与华东政法大学学者对话

On 28 September 2018, the event, China: Challenges and Opportunities: A Conversation with Penn State and East China University of Political Science and Law Faculty (中国:挑战与机遇:  宾州州立大学与华东政法大学学者对话) was held at Penn State University.  My thanks to its sponsors, the Coalition for Peace and Ethics (CPE), the Foundation for Law and International Affairs (FLIA), the School of International Affairs and the Law School at Penn State.

The Concept Note can be read HERE. The Event centered on developments in jurisprudential theories that have application not just for the study of Chinese developments, but which also have substantial application for other systems.

This post includes proceedings of the Event and was prepared with Flora Sapio (Uni Naples and CPE). 

The Event was opened by Scott Gartner, the Director of Penn State's School of International Affairs.   He welcomed the participants. His remarked on the close connection between Penn State's SIA and Chinese institutions, and nicely outlined the challenges that face China in its external relations. 

The first part of the Event was devoted to a presentation by Professor Zhiwei Tong, assisted by Sun Ping (Each China), Larry Catá Backer (Penn State), Flora Sapio (Uni Naples), Keren Wang (Penn State), Gao Shan (Penn State SJD), and Miaoqiang Dai (Penn State). Professor Tong Zhiwei presented the theory of law he proposes in the book Right, Power, and Faquanism: A Practical Legal Theory from Contemporary China (Brill 2018 ISBN: 978-90-04-38128-5).

Professor Tong has created an entirely new and original theory of law, weaved around the concept of ‘faquan’. Among the arsenal of concepts devised by legal philosophers, ‘faquan’ - which may roughly be translated as Law plus Authority/Power/Right – is unique. No equivalent idea exists that can be expressed using a Western language. Professor Tong’s theory proposes that fa and quan are a unified entity – ‘faquan’, and that law has the goal to introduce a balance between these two components, promoting a dynamic equilibrium between them.

The theory grew out of Professor Tong's increasing frustration with the Chinese jurisprudential binary between right and duty.  He noted that the organizing jurisprudence grounded in the right-duty binary had been developed strongly from the mid 1930s in China (e.g., "law is the regulation of right;" "The task of law is to regulate right and duty;" "The center of legal phenomena is right"). It was embraced with great vigor in the early part of the period of Reform and Opening Up (1989-1993) (e.g., “In modern society with developed commodity economy and democracy, the law is right centric;” All legal norms are centered on rights and duty;" and "All issues of law are reduced to right and duty;"). By 2010 the binary had become embedded in orthodox jurisprudence, appearing in a 2010 text approved by the Education Ministry (e.g., “Law is social norm regulating right and duty”). In that context he noted that it was a pity that contemporary interrogation of the right-duty binary never explicitly drew from the 1930s period.  He suggested that lapse made it more likely for such a jurisprudence to lose its historical depth.

Professor Tong noted that the jurisprudential binary of right and duty was quite useful in the context of private law, but was less powerful as a tool for rigorously engaging with the dynamic around an the equally important context of public law, and especially constitutional law. He noted that in that context the binary: right and power which might be more useful in the public law context.  Both the deficiency of the right-duty binary and the utility of a turn toward a right-power binary might be especially useful within a system like that of China where the public sector is substantially larger than the private sector. For that reason alone, the right-duty binary has not been as usweful in interrogating the realities of Chinese political and legal life. He noted that the avoidance of a power oriented research and the use of the right-duty binary to constrain use of power produces self contradiction in right-duty jurisprudence and cannot be self justified: EXAMPLE, administrative law relationship between individual and administrative organ is a is a right-power relationship, but because of the limits of the theory they interpret it as a right-duty relationship rather than a right-power relationship. Another example: relations between different political and administrative organs in the constitution is a power-power relation not a right-duty relationship.

As a consequence, Professor Tong suggested that rights and power serve as the most important phenomenon of jurisprudence, especially in it project of ordering jural relations. It follows that the most important contradiction, that between right and power, rather than between right and duty. In all legal life.  What is POWER?— It refers to jural power, function, authority, and competence enjoyed by public agencies such as governments and the phenomena such as privilege and immunity that are enjoyed by officials in performing their functions. Power is the legal expression of the public interest and public property is its material bearer. What is RIGHT?—It represents jural rights, freedom and liberty, as well as privileges and immunities enjoyed by individuals such as or. Right is the legal expression of the private interest and private property in its material expression. Faquan—represents jural rights represents freedom, liberty, privilege and immunity as well as jural power. Academic expression of all interest and property protected by law. It is a unified entity that must be given a name.

The concept of faquan, then, and the theory built around it, turn the very idea of law as we understand it, and the traditional right-duty binary, upside-down, bringing the law much closer to reality. Building on a rich intellectual tradition that spans across British, American, European, Russian, and Chinese jurisprudence, history, philosophy, and law, Professor Tong Zhiwei has theorized the law as centred not on rights, but on the dynamic relationship between right and authority/power (faquan) instead. Considered in their dimension as concepts in jurisprudence, the nature of right (fa), and of authority/power (quan) operate at a level of abstraction sufficiently high to account for a wide variety of legal phenomena, as they exist in the most diverse legal systems. Yet, both the concept of “authority/power” (quan) and of right (fa) seems eventually to be grounded in economic and social capital.

Within this relationship, which constitutes the core category of the law, the theory operates a differentiation between the two elements of right and power. So it avoids the major pitfalls of theoretical constructions that admit of the existence of an organic unity of right and power, or of their partial overlap.

Right (fa) and power (quan) run along parallel lines – they interact in each and every field of the law, within institutions, and most importantly in society. Faquan however originates from property, either directly – as in the case of rights over immovable and movable goods or indirectly, as in the case of procedural rights. Most interestingly, this dimension of faquan could be related to those differences in economic and social capital existing between individuals born in different social “classes” (in Western countries) or in “castes” (as it used to be the case in India).

The concept of faquan falls entirely under the Law in the sense of the role of role as both mediator and organizer of accommodations between rights and power. There is no form of power, whether it be economic power – whether camouflaged as moral power or power of any other kind - and no form of right however defined that is outside of the scope of faquan. Those manifestations of right and those manifestations of power that are outside of the law, either because they violate the law, or because they ignore the law or exceed its boundaries, are not part of faquan. They have no ontological status, with all the implications a lack of ontological status might or might not entail in practice.This was nicely emphasized in the discussion of the movement from a chaotic state,  in which rights and power are not divided, to a state in which power (quan) are divided among residual quan (where right is not mediated by law) and faquan (power mediated through law).  In this context law is both a constituting element and a mediating one in systems through which a society (in its own national context) can seek to maximize the value (to it) of the relation and expression of right in the shadow of power and of power in the shadow of right. Those national characteristics embrace all systems.  It is in this sense that faquan does not represent an ideological position  but rather one in which the expression of ideology can be more rigorously studied in itself and across systems.    
Despite its seeming simplicity, this is a very sophisticated theoretical move which has had already the following effects:
• it has essentially provided one of the possible answers to the philosophical conundrum about law and exception;
• it has bridged the gap between “Western” and “Eastern” legal philosophy;
• it has produced a theory alternative to existing theories of the law in “Western” legal philosophy - one all serious legal philosophers will have to consider;
• limited to the narrower field of China studies, it has proven how conceptions and theorizations of law can still evolve.
The result goes well beyond China and all things Chinese. Professor Tong may have chosen to qualify his theory using the adjective “Chinese”. But in reality the theory applies to all those governance systems, Western ones included, where economic and social capital might sometimes contribute to determining the place individuals occupy in social hierarchies.

The question provoked by the seminar, then, is a deceivingly simple one: can faquan be distributed more evenly in society? Or, in much less sophisticated terms: can global differences in economic and hence social capital ever be overcome in this life, and in this time?

The discussion that followed the principal presentation brought out these themes.  There were interesting questions relating to the application of faquan to the structures and mediating choices within Indian caste rules as well as the application to divisions within the United States.  There was a long discussion of the relationship between faquan as an organizing and relational theory and the moral and normative principles within which organizational choices can be discovered.

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