如何认真地看待学术游戏——读德沃金访华报告有感
by 方流芳
感谢方流芳先生授权，本文由“问题与主义”网站与法律思想网同时在境内首发。中英文版均为方流芳教授所著。
德翁中国之行，京、沪、杭名校争相追捧，以德翁驾到为荣，一时成为法学界的盛事。德翁先后访问清华法学院、政法大学、读书杂志、复旦大学、浙江大学，每到一地，场面常常热烈到连他本人也莫名其妙的地步。以他的政法大学之行为例，德翁在校长和一批教授前呼后拥的陪同之下, 游览了长城，然后，驱车到政法大学昌平校区(比预定时间晚了两个小时)。当他走进校园的时候，上千名本科生已经簇拥在门口夹道恭候多时。德翁演讲的教室拥挤得水泄不通，教室外面还包围着一圈又一圈听众，以至保安人员组成一道人墙阻挡试图继续涌入的学生。[1] 如此热烈的场面显然不能从单纯的学术兴趣得到解释，许多本科学生是第一次听到这位伟大法学家的名字，他们挤在教室外面什么也听不清，然而，他们似乎仍然能从拥挤中感到乐趣——不知是因为无所事事，前来凑热闹，还是追星风气造就的一种校园文化，总之，大学生不想错过校园里的热闹场面。德翁在中国的活动，与其说是学术交流，不如说是明星演出。中国学术机构通过接近“世界一流大学”的教授抬高身价[2] ，同时满足年轻人的追星渴望;德翁则想通过访问中国而传播自由空气。
德翁不至于如此幼稚，以至认为东道主是邀请他来启动一场围绕个人权利的严肃讨论，因为，他清楚地知道“与其他中国机构一样，大学也是在执政共产党的最终控制之下”。不仅如此，中国大学是共产党控制最为严格的部门之一。大学的最终决策者是党委书记，校长只是以党委书记为首的若干党委常委之一;党委常委决定系主任、院长之类官员的任免;经过中共中央组织部考核，教育部任免党委书记、校长，批准任免副校长和党委副书记。在中国实行市场改革之后，共产党对大学的控制不仅没有松动，而且不断强化。在党委控制和扭曲的“市场化”之下，中国高等教育在近十年发生了令人难以想象的退化：其一，通过运用管制和资源分配的权力，教育部推出了固定的、以它自身为最终决定者的项目，诸如：“重点大学”、“重点学科”、“211工程”、“博士点”、“硕士点”、“社科基地”、“一本招生”、“二本招生”(每一个费解的术语都包含着足以写一篇博士论文的信息)，围绕这些项目的寻租活动毫无例外地成为每个大学的头等“大事”;其二，以各种名目出售入学资格、学位和学历证书是中国高校的“创收”实践，校方、各院系行政官员和教授都是习以为常地参与“创收”和分享“创收”利益;其三，与国企的控制者一样，中国高校的控制者也是一些利益集团，这些人既精通寻租、“创收”，又会按“领导意图”说话，总之，他们深知如何利用中国的弊端给自己造就最大利益。在这样的大学里，官方组织的学术会议无非是做“秀”、造“势”、捧“场”和敛财。德翁指望在这样的学校、这样的学术会议上与中国同行进行实质意义的交流，这一指望似乎脱离他对中国大学已有的认识。
在德翁眼里，他接触的中国知识份子是一批典型的机会主义分子——他们假装没有看到中国现实的人权状况;他们精通世故，只谈大而无当的抽象话题，小心翼翼地自我检索言论，以免惹恼政府;他们在外国人面前众口一词地对中国的前景表示乐观;他们甚至沾沾自喜地认为自己享有政府默许的特权——只要不出格，就比一般民众有更多的自由发牢骚。德翁是一个让价值判断支配视觉的人，他的道德哲学使他无法认同这样一批中国崇拜者——他们努力在德翁面前显得象自由主义者，却缺乏自由主义者应有的道德责任。然而，德翁并没有看到：他可能和他的中国崇拜者扮演着相同的角色。德翁之所以能在中国畅所欲言，正是因为中国政府的容忍——中国政府不是没有能力干预，而是不想干预或者不屑干预。至于中国政府的不理会是因为自信、谋略、开明，还是因为(按照德翁的理论)趋近认真地看待权利，这只有它自己知道。无论如何，德翁在北京享有言论自由这一事实让中国政府得分，犹如德翁的中国崇拜者不时说些“挠痒痒”话也让中国政府得分一样。
德翁不止一次地谈到一名中国律师被捕的案件，认为中国政府是在迫害律师。但是，没有任何迹象表明：他是在了解事实真相的基础上作出了这一判断，相反，他试图充当法官，依据新闻报道和科恩(COHN)教授不置可否的评说审理案件，并且在控辩双方都不在场的情况下作出裁判——这和他本人提倡的法治实在相去甚远。和美国律师一样，中国律师并不比一般人有更高的道德标准，律师过分帮助客户而触犯法律也不是只会发生在美国——律师受到唆使伪证的指控是任何法治社会和威权社会都会发生的事情。问题在于：这位中国律师的客户——一个被控贪污的官员早先是否受到酷刑折磨而招供?如果回答是否定的，那么，律师是否指使他的客户伪称受到折磨，并以此为理由推翻招供?这纯粹是事实问题，无论德翁，还是本文作者都没有足够的信息去回答这一事实问题。如果一个人相信被捕的律师是无辜的，并且试图寻找最好的途径帮助他，那么，有限的选择或者是进行调查，或者自告奋勇地担任这位律师的辩护人。这无论如何也不是一个可以通过学术争辩解决的问题。
当然，德翁的另一个选择是用律师案件作为实例，一般性地探讨中国法律是否为一个犯罪嫌疑人提供了正当程序的保护，而他恰恰没有提出这一学术争辩。相反，他认为：在政府践踏人权的时候，忽视现实而争辩一般问题是没有意义的。可是，今天的中国法律能够或多或少给人民提供一些权利保障，在一定程度上，正是得益于学者用抽象的语言表达了他们的现实关注，并且影响了法律的创制。关于行政复议的学术讨论催生了允许个人挑战行政决定的法律，而允许个人挑战一般性规则的法律正在酝酿之中;民法的学术讨论促成较为尊重个人财产和合同自由的“民法通则”、“合同法”;司法改革的讨论启动了全国统一的法律职业考试和法官队伍的专业化，等等。用一般问题涵摄现实关注，用回避敏感问题的方式去解决敏感问题，[3] 这恐怕是许多中国知识分子今天正在作出的贡献，而德翁恰恰没有看到。
德翁带着堂吉可德向风车挑战的姿态来到中国。他不断指责中国政府践踏人权，可是，中国政府却无动于衷——他预料的干预根本没有发生，这使他失望、惊诧和困惑。“这是为什么?”他无法找到“最好的回答”。其实，德翁在中国的遭遇正可质疑他追寻“唯一正确答案”的执着：并不是所有的政府行为都是非黑即白, 要么压制权利, 要么尊重权利, 要么极权霸道, 要么顺从民意。预先制作黑白两色标签，然后按照自己的判断分别贴上每一种政府行为，这恐怕只能妨碍观察者发现真相——真实生活比预制的标签要复杂得多。中国政府为什么没有干预，这是可以留给有兴趣的人去探询。本文作者从中看到的事实是：个人言论的开放程度与言说者承担的个人风险的大小是成反比例的，德翁不会因为在中国发表任何言论而受到迫害，他拥有比中国同行更为可靠的安全感，所以，他的言论更有进攻性。然而，这一点并不能说明他比中国同行更有道德勇气，或者有压过中国同行的道德优势。
我赞同德翁的主张，向往自由是人类的共通心性，不会因为传统和制度而产生实质差别。但是，事实的另一面是：生存哲学并不总是排除机会主义，人总是会根据当时、当地的情况去调整自己的行为，而不是一味坚持他信奉的某种道德哲学。我在中国大学的生活经历常常使我感到困惑：为什么在北京暂时居住的西方人的行为方式与中国人是如此相同?我不妨用无数事例中的一个来说明自己的困惑。在北京，许多的大学都有一项实施了几十年的规则：晚上11点之后，学生宿舍楼的大门须从内部反锁，以防盗贼。锁门之后，进出大楼必须唤醒值班门房，并经受盘问，从而造成极大不便。更为严重的是，一旦夜间发生地震、火灾，大楼居民逃生的机会就大大减少了。封锁学生宿舍楼是明显违反中国法律的举措，因为，中国消防法要求居民楼的防火通道必须保持畅通。[4] 可是，数以千计的西方学生至今仍然在反锁了大门的宿舍里度过每一个夜晚，没有听说发生引人注目的抗议或诉讼。倒是中国学生常常以他们特有的方式进行对抗，诸如：向校方投诉;在投诉无效的情况下，拆除一楼卫生间的窗玻璃，翻窗出入;毁坏大门门锁，等等。在学生宿舍楼夜间反锁大门的事件中，西方学生并没有表现出更看重个人权利的倾向。尽管我希望看到有人通过诉讼或者其他合法方式进行抗争，我并不认为人们没有这样做是一种错误的选择，因为，我并不清楚究竟是抗争，还是放弃抗争对当事人最为恰当。如果官员不必按照公平程序聆听民众投诉，如果抗争只能增加个人风险而不能带来希望，大多数人选择放弃抗争或者被动等待也许有他们自己的道理。妥协、忍耐和抗争至少是同样普遍的人性面貌，威权政治正是植根于人性弱点而得以存在。
无论人们的文化、职业和教育背景多么不同，他们都是生活在特定的社会，都是在一定的制度下进行有限的选择，多数人的选择通常是适应制度，因为，单独或者发动集体行动改变制度的个人注定要付出代价和承担失败风险。在多数人消极被动的情况下，要求某个人、某个群体挺身而出，这是缺乏道德正当性的。生活在民主社会的人可以轻松地主张：受压迫的人民应该起而抗争。然而，抗争并不是在任何情况下都最能保证最好的结果，并不是只有一种方式能够表达抗争，更不是所有的人都适合抗争。
如果一个平民用身体阻挡一队坦克，他选择了对抗，并且勇敢地承担了选择的后果，但是，如果有人事先劝说或者动员他这样做，劝说者显然是不道德的，因为，他是在用别人的生命冒险。个人有权利选择不同的方式去承担道义责任，没有超越时间和空间、对一切人都是最好、最正确的选择。个人愿意为自由付出多大代价，在什么时候、用什么方式去付出代价，没有谁能够代替他本人作出决定。生活在开放社会的政治家永远也不会真正体会到生活在另类社会的人民的处境，可是，他们总以为自己有足够的道德优势去告诉别人该做什么，总是想从外部人为地改变其他国家固有的演进过程。然而，置身于风险之外的人既缺乏道德优势，也缺乏实践智慧去告诉别人在什么时候、什么场合承担何种程度的风险。前苏联经济改革的失败不是因为俄罗斯人不够聪明，难以领会西方老师传授的“休克疗法”，而是因为他们听任那些不承担任何风险的人为自己筹划未来。从19世纪末开始，中国人洗耳恭听了无数自负的外国教诲，每当中国人把这些教诲当真的时候，都带来一场灾难。如果说中国问题终究会有德翁所说的“最佳回答”的话，这一回答只能来自中国人民自身的摸索、思考和尝试。
德翁访问中国究竟有哪些学术贡献?他似乎给中国人提供了一个理想的法律建构——这个法律不会为一部分人的利益而牺牲另一部分人的利益。然而，常识告诉我们：这是一个空中楼阁。如果法律承担着分配正义的职能，它不可避免地要牺牲一部分人的利益：多数人作出最终决定的民主政治在一定程度上牺牲了少数人的利益;合法生产和使用汽车无疑是放任每天注定要发生的交通事故，尽管交通事故吞噬的人类生命超过任何战争;实行累进所得税则是剥夺富人的某些利益;affirmative action是让那些和种族歧视受害者一样无辜的人去补偿种族歧视受害者的后代，等等。我们实在难以找到能使所有人都获得利益的法律，也许德翁能找到。
在我看来，德翁访华提出了一个值得中国知识分子思考的问题：在学术交流中，如何有效地使用有限的时间和精力?如果你并不真正了解一个学者的成就，并不确信自己真的有交流的需求和冲动，你至少可以不必假装自己能够从这种学术活动中获得快感。鲁迅笔下的阿Q总是向往热烈场面，因为无人召他“同去”而产生失落感，以至发生个人悲剧。[5]如果中国教授能把耗费在召人 “同去”和应召“同去”的一部分时间和精力用来读书、思考、写作，他们或许能得到更多的尊重。
(作者是中国政法大学法律教授。)
注释：
[1] “那天，阶四教室盛况空前，为了一睹大师风采，男生甩开风度，女生不顾矜持，黑压压的人群，争先恐后向教室里涌动，门口的保安不得不摆出人墙堵住学生。其实教室里早已人满为患，五月的天气，室内温度呈直线上升，汗味夹杂着暑气阵阵袭来，场内外一片混乱。”参见：王婷，《在法大听讲座》，中国政法大学校报，2002年9月20日，版 http://www.etouch.cupl.edu.cn 。
[2] 1999年，江泽民在北京大学百年校庆大会上提出：“为了实现现代化，我国需要若干所具有世界先进水平的一流大学”，北京大学随即提出了创建“世界一流大学”。参见：江泽民总书记在庆祝北京大学建校一百周年大会上的讲话;北京大学制定创建世界一流大学计划，载：《北京大学年鉴1999》，北京大学年鉴编委会[编] ，北京大学出版社, 2000年版。清华大学90年校庆时，江泽民为其题词：“建设世界一流大学，为实现中华民族的伟大复兴而努力奋斗!”清华大学也提出“争取在建校100周年之际，使清华大学跻身世界一流大学行列”，见清华大学网站《校长致辞 http://www.tsinghua.edu.cn/chn/xxjs/xzzc.htm 。
[3] 主张个人挑战一般规则效力的讨论，参见：季卫东：合宪性审查与司法权的强化，载：中评 http://www.china-review.com 。姜明安、江平、贺卫方、蔡定剑：宪法司法化四人谈，《南方周末》2001年9月14日)、李步云：建立违宪审查制度刻不容缓，载：公法 http://www.gongfa.com 。
1999年《行政复议法》允许个人就部门规章以下的行政规章提请行政机关进行审查(第7条);2000年《立法法》第90条规定了国务院、最高法院等机构对行政法规、地方性法规、自治条例和单行条例的审查提请权，规定了个人对前述法规的审查建议权，参见胡锦光：立法法对我国违宪审查制度的发展及不足，《宪法与行政法学》2001年第2期。
中国民商法律 http://www.civillaw.com.cn )收录了以下关于合同法、物权法讨论的作品：梁慧星： 统一合同法：成功与不足;中国合同法起草过程中的争论点;制定中国物权法的若干问题;王利明：统一合同法制订中的若干疑难问题探讨;论中国民法典的制订;新世纪与中国民法典。
关于司法改革的部分讨论，参见：贺卫方：复转军人进法院;通过司法实现社会正义：对中国法官现状的一个透视;论司法的非行政化和非官僚化，载：《司法的理念与制度》，中国政法大学出版社，1998年。季卫东：法律程序的意义：对中国法制建设的另一种思考;法律职业的定位：日本改造权力结构的实践，载：《法治秩序的建构》，中国政法大学出版社，1999年。
[4] 参见：中华人民共和国消防法(1998年)，条14(六)。
[5] 参见鲁迅，《阿Q正传》，载《鲁迅小说集》，页69，人民文学出版社，1994年。
英文版如下：
Professor Ronald Dworkin’s brief visit of China last May made a phenomenal scene in several elite universities in Beijing, Shanghai and Hangzhou. He was followed everywhere by huge crowds. Chinese universities all see having Professor Dworkin show up in their auditoria as a tremendous honor. Within a very short period of time, Professor Dworkin visited Tsinghua Law School, Chinese University of Political Science and Law, Reading Magazine, Fudan University and Zhejiang University. The enthusiasm of the audience often made Professor Dworkin himself surprised.
The day when Chinese University of Political Science and Law was on Professor Dworkin’s agenda, he was first accompanied by the President of the University and several other professors on a tour to the Great Wall. Then, after being late for two hours, Professor Dworkin finally showed up in the Changping Campus of the University, with more than a thousand students waiting along the campus road to have a glance of the master’s glory. The auditorium where Professor Dworkin was scheduled to give a talk was packed by hundreds of students, with hundreds of others standing outside. Campus security guards had to stand in walls to prevent outside students from flooding into the auditorium. [1] It is hard to explain the students’ enthusiasm from a pure academic interest perspective. Many of the undergraduates actually just heard the name of the great scholar. Standing in the crowd outside the auditorium, they could hardly hear anything. It seems that being squeezed in the crowd itself was a joy to many of the students. It was really hard to tell whether this was because they had nothing else to do and just wanted to enjoy the fun of being in a crowd or because following the stars has become a fad of the school. One thing is very obvious: the college students did not want to miss the festival-like event. In some sense, Professor Dworkin’s China tour was more like a pop star’s grand tour rather than serious academic exchange or communication. In response to the Party’s recent call for establishing a dozen of "world first class universities," [2] Chinese academic institutions in recent years competed to invite famous foreign scholars and form connections with prestigious foreign universities with a view to elevate their own status. Professor Dworkin is a "world first class" professor from a "world first class" university. Being close to such a great master, even if only for a few minutes, in no doubt will add something to these Chinese universities’ guest book and their students’ fan diary. Meanwhile, on the other hand, it seems that Professor Dworkin unilaterally believed that his China tour was a valuable opportunity for China to be privy to his ideas of liberty.
Professor Dworkin should not be so naive to believe that the purpose that his host invited him to China was to trigger a serious debate about individual rights because he clearly recognized that, "same as other Chinese institutions, universities are under the tight control of the dominant Communist Party." In fact, Chinese universities are the institutions where the Communist Party vested its tightest control. The ultimate decision-maker of a university is always the Party’s Secretary in the school. The President of the university is often one of the members of the Party’s standing committee in the school led by the Party Secretary. The standing committee holds the power to appoint and remove director or head of each department. Both the Party Secretary and the president of the university are officially appointed by the Ministry of Education after the Organizational Department of the Communist Party’s Central Committee approves the candidates. Years after China’s market reform, the Party’s control of higher educational institutions was not diminished but tightened. More seriously, the unbalanced market reform triggered rampant corruptions-academic degrees were constantly granted to unqualified officials, businessmen and foreigners who did not pass exams but paid money or exerted influence. Unscrupulous rent-seeking activities swallowed a tremendous amount of valuable educational resources. The whole system has become a classic adverse-selection case: speculators won and real academics out. In universities like this, officially organized academic conferences were often inferior shows, boring gatherings or marketing activities. For social purposes, some serious scholars may occasionally show up in these events but nobody actually seriously treat such showing-ups as academic activities. It seems that Professor Dworkin forgot about his basic understanding about Chinese universities when he sought to have serious academic exchange with his Chinese colleagues and draw concrete conclusions from these events.
In Professor Dworkin’s view, the intellectuals he met in China are a typical group of opportunists. They pretended that they have not seen the real situation of human rights in China; they carefully avoid sensitive issues and only talked about irrelevant big topics; they tried not to annoy the government by cautiously sensor their own speeches; they unanimously sang an optimistic prayer for China’s future; they even happily enjoy the illusion that, as long as they behave within the borders implicitly drawn by the government, they could have more freedom of speech than ordinary Chinese people. Professor Dworkin’s sights have seemingly been directed by his values. His values show that he could never accept his Chinese admirers who tried their very best to appear like liberals but actually lacked the basic moral value treasured by liberals. What Professor Dworkin did not see was the fact that he actually played a role very much like the one played by his Chinese admirers. The reason that Professor Dworkin talked freely in China was because the Chinese government tolerated his talks. It was not because the Chinese government did not have the ability to intervene but because it did not want to or did not bother to intervene. Why? Was it because the Chinese government was confident, sophisticated, liberal or, borrowing Professor Dworkin’s favorite phrase, because it had learned to "take rights seriously"? Whatever the reason was, the fact that Professor Dworkin enjoyed freedom of speech in China has given the same credits to Chinese government as the credits given by Professor Dworkin’s Chinese admirers when they scratch the government’s itch by publishing light criticisms. When Professor Dworkin repeatedly questioned his Chinese admirers on their opinions on Chinese government’s violations of human rights and Falungong, he was actually forcing these scholars to make a choice between standing by me and criticizing your government and standing by your government and debating with me. I have no intention to defend those Chinese scholars who call themselves liberals. Nevertheless, keeping a low profile in government organized semi-official academic events usually is not due to lack of courage or being hypocritical, the simple truth is that people may not want to answer certain questions under certain circumstances.
Professor Dworkin mentioned more than once the case in which a Chinese lawyer was arrested, in connection with his representation of an allegedly corrupt Chinese official, and Professor Dworkin took the view that the Chinese government is persecuting the lawyer although there is no indication that the judgment was based on factual findings. On the contrary, it seems that Professor Dworkin sees himself as a judge who intends to make a judgment without listening to the parties but purely by relying on news reports and Professor Jerome Cohn’s comments on the case. This practice seems to violate certain principles of the rule of law advocated by Professor Dworkin himself. Same as lawyers in the U.S., lawyers in China do not necessarily abide by a moral or behavioral standard higher than ordinary people. Violation of law by lawyers for providing overreaching assistance to their clients could happen both in the U.S. and China. Perjury solicited by legal counsel is a crime not infrequently seen in all countries, regardless of whether there is rule of law. The key question here should be: whether the Chinese lawyer’s client, a purportedly corrupt government official, was tortured before signing on his testimony. If the answer is no, then, we should ask whether the lawyer asked his client to testify on court, falsely, that he was tortured and use this claim to withdraw his previous testimony. As we all see, this is a pure factual issue. Neither Professor Dworkin nor the author of this article has enough information to answer these questions. If one believes that the lawyer is innocent and would like to help him, the best thing he can do is to investigate himself and/or stand to defend the lawyer in court as his counsel. There is no way this issue could be resolved by academic debates.
Of course, Professor Dworkin could have used this case as an example to discuss whether Chinese law has provided sufficient due process protection to criminal suspects. Unfortunately, he did not raise this issue. In contrast, his view was that, when a government is depriving ordinary people’s human rights, it is meaningless to talk about issues in general without looking at the reality. What he overlooked was the fact that most of the legal protections provided by Chinese law to ordinary Chinese people today owe a great deal to scholars’ "general discussion of issues." In the last 20 years or so, most of these "general discussions" were initiated by scholars who have insights and foresights in China’s reality and eventually turned into significant influences to the evolution of Chinese law. It was the academic debate about administrative review that led to the enactment of laws allowing individuals to challenge administrative decisions made by the government and it is also expected to lead to the enactment of a law in pipeline which will allow individual citizens to challenge the legality of law in general. It was the debate surrounding civil law issues that led to the enactment of the General Principles of Civil Law and the Contract Law which showed substantial respects to individual ownership of properties and contractual freedom. It was the debate about judicial reform that led to the unified national legal professional exam and the professionalization campaign of judges. There are numerous examples in this regard. Over the past two decades, using general discussions to express their concerns about the reality and finding solutions to sensitive issues while avoiding sensitive mines were the very contributions made and being made by many Chinese intellectuals. [3] Unfortunately, Professor Dworkin did not see this.
Professor Dworkin came to China with the spirit of Don Quixote. He kept on accusing the Chinese government for abusing human rights but did not receive anything from the Chinese government in return. He was disappointed, surprised and confused because what he anticipated did not happen. He kept on asking "Why?" But he did not find "the best answer." Professor Dworkin’s experience in China actually in some sense challenged his "sole right answer" mentality. That is, not all the government actions in China are either black or white; either suppressing rights or respecting rights; either against people’s will or for the people’s will. One could never find out the truth if he puts white or black tags on every single government action. The real world is much more complex than the tag producing and posting business. The reason why the Chinese government did not interfere Professor Dworkin’s talks in China might be a research topic for people who are interested. The truth is that the degree of freedom of speech is negatively correlated with the actual risk borne by the speaker. Professor Dworkin will never be persecuted for his speeches in China, so he should feel safer than his Chinese colleagues when giving speeches and therefore his speeches can be more assaulting. However, this does not necessarily mean that Professor Dworkin possesses more moral courage than or is morally superior to his Chinese colleagues.
I agree with Professor Dworkin in that admiring freedom is a human nature which should not be materially different due to differences in social traditions or political institutions. Nevertheless, it is also true that the philosophy of survival does not preclude opportunism. People always adjust their behavior when they are at different times and in different places. Nobody always acts in one and the same way in spite of changes in time and place. My casual observations in Chinese universities sometimes puzzle me. I often ask myself why foreigners who grew up in the West and lived in Beijing temporarily always quickly adjusted their life style according to the new conditions in China. For example, in Beijing, many universities have a longstanding rule that all the dorm buildings must be locked from inside after 11 o’clock at night. The official reason behind this rule is to prevent burglary. After the buildings are locked at night, people returning late would have to wake up the guard and be questioned before they can go back to their rooms, which caused a great inconvenience to dorm residents. More seriously, in case of an earthquake, fire or any other disaster, the chances for the dorm residents to escape to safety are significantly reduced. Moreover, locking dorm buildings is a policy clearly in violation of the PRC Fire Prevention Law, which requires all the emergency exits are kept clear in residential buildings. [4] Nevertheless, thousands of foreign students have slept, and many more are still sleeping in these locked buildings. Nobody has seriously protested or brought any legal action against this policy. It is often the Chinese students who protested in their own way: they repeatedly petitioned to the universities and, after the petitions were proved in vain, broke windows on the first floor and locks on the dorm door so that they could go in and out the dorms freely at night. What we can see from this example is that foreign students educated in the West did not show their values of individual rights when their rights were actually violated. Although we all hope this policy be removed via litigation or other legitimate means, I don’t think I am in a good position to make a judgment on people’s choice under this circumstance because I don’t know whether fighting against or accepting the reality is more appropriate for people who actually bear the consequence of such decisions. If the law does not require government officials listen to and act in response to complaints filed by ordinary people and if fighting against a certain policies may create substantial risk to the party who stands out, it may be a rational decision for most people to choose to wait passively. Compromising, tolerating and fighting are at least equally common-seen human natures. Authoritative politics are actually built on such human natures.
No matter how people are different in culture, profession and education, they all live in a particular society and have limited choices confined by certain institutions. Most people often choose to adapt themselves to the existing institutions because the individual or group of individuals who initiate changes often have to pay a high price without insurance of success. When most people choose to wait passively, it is hard to justify morally for one to ask another individual or a group of individuals to stand out and fight against the existing institution. It is always easy for people living in a democratic society to encourage people under suppression to rise and fight. Nevertheless, fighting does not necessarily lead to the best result under all circumstances; people can fight in more than one way; and not all people are the right fighters.
When a civilian stood out to stop a tank, he made a decision himself and was prepared to shoulder the consequence himself. It would be obviously immoral for another person to order or request this civilian to do so because the ordering or requesting person would be risking the civilian’s life. Everyone has the right to choose the manner in which he or she bears his/her own moral responsibilities. There does not exist a universal choice right at all time and good for everyone. It is a personal decision how much, at what time and in which way one wants to pay for freedom. No one can make decisions for others. People living in an open society can never actually understand the situation of people who live under "the other system," although they seemingly always think they have sufficient moral superiority to tell others what to do and they always have the ambition to change other countries’ evolution from outside. In fact, people standing outside risks have neither the moral superiority nor the actual wisdom to tell others what risks to take at what time and in what circumstances. Russia encountered many difficulties during its transition to market economy not because Russians are not smart enough to understand and implement the "Shock Therapy" taught by their Western teachers, but because they let people who do not bear any risk from their advices to plan future for them. Ever since the nineteenth century, Chinese people have taken numerous lessons from foreign teachers. Unfortunately, whenever those lessons were taken too serious and actually implemented, China saw a major disaster. If, as Professor Dworkin has been advocating, there is one single right answer to China’s problems, this answer can only be found by the Chinese people themselves.
Besides preaching his own theories, what academic contribution has Professor Dworkin made during his China trip? The answer may be that he provided the Chinese people with the dream of an ideal legal system under which the interests of any one person or one group of persons would not be sacrificed for any other person’s. Unfortunately, common sense tells us that this is something untouchable in the air. If law has the function of distributing justice, it will inevitably sacrifice some people’s interests. We see numerous examples in life: popular democracy where the majority wins obviously sacrifices the interests of the minority form time to time; allowing automobiles to be produced and driven means many lives have been and will be killed on the road by traffic accidents; adopting progressive taxes is to deprive wealth of the rich for the advantage of the poor; affirmative actions force innocent people who never committed any discriminatory actions to compensate the descendants of the victims of past discrimination. It is hard to find any law that benefits all. Probably Professor Dworkin can find one.
In my view, Professor Dworkin’s China trip raised a question worth of thinking by all Chinese intellectuals: how should we use our limited time and energy in academic activities? If you don’t actually know about the speaker’s work and are not sure you have the need or desire to participate in an academic event, at least you should not pretend that you can obtain any pleasure from such event. Mr. Lu Xun’s Ar Q loved hot events. He often felt lost because nobody called him to go together to any hot event. Eventually, Ar Q ran into a tragic ending. [5] If Chinese professors could use their energy and time wasted on calling others or being called to hot events go together on reading, thinking and writing, they might have earned more respects.
Notes:
[1] "On that day, the No. 4 Classroom was unprecedentedly crowded. To have a glance of the master, the gentlemen or fair ladies abandoned all of their grace. The huge crowd kept on pushing toward the door of the classroom. People were squeezed together, body by body. The security guards standing at the door had to form a human wall to stop the flooding crowd. Meanwhile, the classroom was completely packed. It is a hot day in May. Everyone was sweating. The whole room was smelling and messy like a market." See Wang Ting, Attending Lectures in University of Political Science and Law, University News Journal of Chinese University of Political Science and Law, September 20, 2002, page. 4. Also available ahttp://www.etouch.cupl.edu.cn.
[2] In 1999, in his keynote speech on the centennial celebration ceremony of Peking University, President Jiang Zeming made the remarks that "to modernize the country, we need to establish various ‘world first class universities.’" Immediately after this remark was made, Peking University publicly announced that "establishing a ‘world first class university’" would be its next goal. See President Jiang’s Speech on the Centennial Celebration Ceremony of Peking University: Peking University Laid Down Plan to Establish a World First Class University, Editing Committee of Peking University Year Book, ed., Peking University Year Book: 1999, Peking University Press. Three years later, when Tsinghua University celebrated its 90th anniversary, President Jiang wrote down the following remarks for Tsinghua: "to establish a world first class university and fight for the rejuvenation of the Chinese nation." See website of Tsinghua University under The University President’s Words ahttp://www.tsinghua.edu.cn/chn/xx/js/xzzc.htm.
[3] For debates on challenging validity of general rules by individuals, see Ji Weidong, Constitutional Review and Strengthening of Judicial Powers, on www.china-review.com ; Jiang Mingan, Jiang Ping, He Weifang and Cai Dingjian, Panel Discussion: Judicialization of Constitution, Nangfang Weekend, September 14, 2001; and Li Buyun, The Imminent Task for Establishing a Constitutional Review System, on www.gongfa.com .
Article 7 of the Law on Administrative Review, which was promulgated in 1999, allows individual citizens to file an application to have an administrative regulation issued by Ministry-level below government agencies to be reviewed. Article 90 of the Legislation Law promulgated in 2000 defines the authority held by the State Council, Supreme People’s Court and other government agencies in reviewing administrative regulations, local regulations, self-governance regulations and specialized regulations as well as the right of individual citizens in initiating such reviews. See Hu Jinguang, The Contribution and Deficiency of the Legislation Law in Developing China’s Constitutional Review System, Journal of Constitutional Law and Administrative Law, No. 2, 2001.
Following works on debates about Contract Law and Property Law are available at www.civillaw.com.cn : Liang Huixing, Merit and Deficiency: the Unified Contract Law; Issues Being Debated During the Drafting Process of PRC Contract Law; Various Issues Relating to the Enactment of Property Law in China; Wang Liming, Various Key Issues in Enacting the Unified Contract Law; Enactment of PRC Civil Law; New Century and PRC Civil Law.
For works relating to judicial reform, see He Weifang, Retired Soldiers Getting Into Court; Realizing Social Justice by Judicial Exercise; An Insight in the Current Status of Chinese Judges; De-administratization and De-bureaucratization of Judicial Agency; Judicial Theory and Institution, China University of Political Science and Law Press, 1998. Ji Weidong, The Meaning of Judicial Procedures: An Alternative Thought on China’s Judicial Development; Positioning of the Legal Profession: Japanese Experience in Reforming Power Structure, Structure of Legal Procedures, China University of Political Science and Law Press, 1999.
[4] PRC Fire Prevention Law (1988), Article 14(6).
[5] See, Lu Xun, A Biography of Ar Q, Lu Xun’s Novels, People’s Literature Press, 1994, page. 69.
附德沃金的原文，发在《纽约书评》2002年9月26日号。
The New York Review of Books
SEPTEMBER 26, 2002
Last May I was invited to China for two weeks, first to take part in a two-day conference at the law school of Tsinghua University in Beijing, and then to give several public lectures there and in other cities. The Tsinghua conference was arranged by the university’s Research Center for the Rule of Law and Human Rights, and there and at all the other lectures and meetings I was asked to discuss legality, human rights, and democracy. (The university in Hangzhou suggested, as the title of my lecture there, "Taking Human Rights Seriously.") Since I have for many years published my views in defense of civil and political liberties, I was puzzled to be asked to speak on these subjects. China’s record of ignoring the rule of law, suppressing democracy, and systematically violating human rights is notorious, and the universities, like every other Chinese institution, are in the end under the ruling Communist Party’s control.
It is true that in recent years Chinese leaders have repeatedly said that they respect and encourage the rule of law because it is an essential condition of improving foreign investment and trade.[1] In 1999, Article V of the Chinese constitution was amended to include this passage: "The People’s Republic of China shall practice ruling the country according to law, and shall construct a socialist rule-of-law state." But actual legal practice, particularly in criminal cases, often flatly contradicts that declaration. Two principles are central to the rule of law: that the coercive power of the state may only be exercised in accordance with standards established in advance, and that judges must be independent of the executive and legislative powers of government. Traditional legal practice in China has rejected both these principles, following instead what was often called the Confucian view: that law is a matter not of rules or general principles, but of virtue, equity, and reasonableness in individual cases.[2] Judges developed no system of legal precedent: there was no understanding, that is, that judges in later cases would follow principles laid down in earlier decisions. Even now, very few judicial decisions are published.
When the Communists took power they substituted Leninist doctrine for Confucianism: they said that law is an instrument of power and political control, and that its application must be subject to the dictatorship of the Party as representing the proletarian masses. They established a "public security system" independent of the official legal system, which has detained tens of thousands of political prisoners by administrative action alone,[3] and includes a program of administrative detention for the "custody and repatriation" of homeless and jobless rural immigrants to the cities in camps where they are required to work for their support.[4]Party officials I met during my visit insisted that recent reforms had sharply reduced the scope of the administrative security system and that the repatriation camps were being phased out. But the official legal system is itself seriously defective. Many judges are former minor Party officials, many are not trained in law at all, and many are openly corrupt. Political leaders still have no compunction about using the criminal process to advance their own policies or for personal purposes. On May 3, for example, the Beijing police arrested the leading partner of the sixth-largest law firm in the country, Zhang Jianzhong, who remains in jail and has not been allowed to meet with his attorney.[5]Zhang is reported to have been arrested because senior Communist Party officials were angered by his defense of other Party officials who had been accused of corruption. But according to New York University Professor Jerome Cohen, an expert on Chinese law, "No one knows exactly why he is in custody. The police have yet to talk to anyone. They are violating Chinese law." Some commentators believe that Zhang will eventually be charged under a provision of criminal law forbidding lawyers to encourage false testimony that has been used to put other lawyers in jail because their clients, who had confessed to crimes under torture, retracted their confessions in court. It would be hard to imagine more violent contempt for the basic principles of legal fairness. As He Weifeng, a professor of law at Beijing University, has been quoted as saying, "Laws like this make it impossible for China to have real defense attorneys. The risks are too high. If your client changes his mind and takes back his confession, you could end up in jail. What kind of law is that?"[6]
China’s general record on human rights is equally egregious. Amnesty International’s 2002 report on human rights (which was published in the United States while I was in China, and was featured on the front page of Hong Kong’s South China Morning News) charges that serious violations of human rights actually increased in China in 2001. It cites the imprisonment and frequent torture of thousands of political dissenters and human rights activists, the execution of at least 2,468 prisoners (more than any other country) for crimes that include tax evasion, pimping, and embezzlement, the death of an estimated two hundred members of the Falun Gong religious sect from torture in prison, the 260,000 people detained in the repatriation camps I mentioned, and the jailing of a Tibetan woman for six years for watching a video of the Dalai Lama at home.[7]In June The Washington Post reported a new wave of political arrests, including the arrest and conviction of two members of the outlawed China Democracy Party, who were given prison terms of ten and eleven years for supporting a labor strike, and a continuing effort to identify and punish the authors of The Tiananmen Papers, a report on the 1989 massacre allegedly based on confidential documents that is now widely circulating outside China.[8]
In view of this record, I was surprised by the discussions that my lectures and other formal and informal remarks provoked.[9] The first day of the conference at the Tsinghua center was devoted to the rule of law; scholars from universities across China, from Japan, and from other countries spoke to a large audience of lawyers, judges, law professors, philosophers, and students, who joined in the discussions. The speakers’ and discussants’ knowledge of Western law and jurisprudence was extensive, and the quality of the discussion impressive.Several of them addressed defects in the Chinese legal system, conceding that a great many judges lack legal competence and decide cases on moral or political rather than legal grounds.Some of the speakers made concrete suggestions: they recommended, for example, that more judicial opinions be published, in hopes not only of developing a system of legal precedent, but also of discouraging judicial corruption and improving the quality of legal argument. Some argued that the highest Chinese courts, like the United States Supreme Court, should have the power to overrule legislation and other acts of government that violate the Chinese constitution.[10]Most of the discussion concentrated, however, on relatively theoretical jurisprudential issues concerning the principles that make up the rule of law. The scholars and the audience debated, for example, whether the rule of law is best served by legal positivism, which insists that lawyers and judges identify what the law requires without reference to moral values, or by the more complex account of law that I myself have defended, which makes morality pertinent to identifying legal rules and principles in certain circumstances.[11] These discussions were full of interest, and I learned much from them. But they seemed eerily abstract in a country whose government treats itself as above the law, and jails lawyers because their clients have withdrawn confessions extracted under torture.
On the second day of the Tsinghua conference, and then in public lectures at that university, the China University of Politics and Law in Beijing, Fudan University in Shanghai, Zhejiang University in Hangzhou, and Hong Kong University, and at a meeting in a large Beijing bookstore organized by Dushu (Reading Books), the leading intellectual journal in China, I spoke more directly about human rights.I said that it was widely believed in the West that Chinese traditions and popular opinion endorsed a more collectivist, less individualistic view of citizens’ rights and responsibilities than the post-Enlightenment view that was more popular in the West, and that the so-called "Asian" values the Chinese embraced were less supportive of individual human rights than the so-called "Western" values. I suggested that it would be useful to explore that supposed difference. I said that, in my view, the human rights commonly recognized in Western democracies rest on two fundamental principles: first, that the fate of every living human being is equally important, and, second, that nevertheless one person has special responsibility for the success of each life-the person whose life it is.The first principle, I said, forbids sacrificing some people for the sake of others or for the sake of the community as a whole, as any government does that arrests and tortures political opponents to intimidate others, or as the Chinese government has done in concentrating investment and wealth in its commercially important coastal cities to the neglect of the rural population which has not been allowed to share in China’s recent prosperity.The second principle requires that government respect the rights that individuals need to direct their lives: the right, among others, to practice any religion freely, to speak their minds on matters of political and moral consequence, and to choose political positions and associates for themselves. China violates that second principle because it jails political dissidents, forbids any political activity outside the Communist Party, and persecutes the Falun Gong, a religious movement with no political aims but with a remarkable ability to organize mass meetings and demonstrations in defense of its religious practices. Did the audience really reject these two principles, I asked, or dispute the implications I had drawn from them? If they did reject the principles, why did they do so, and which less individualistic, more "Asian," principles would they accept in their place? I added that I found it puzzling to think that "Asian" and "Western" values could really be as distinct as is often supposed. We share, after all, in spite of great differences in history and culture, the same fundamental human situation. We have lives to lead and death to face. We crave a fair share of whatever resources are available, and a fair chance to makeour lives our own rather than someone else’s creation.I had been warned that Chinese academics and students might simply remain silent in the face of such arguments and questions, that most of them are uncomfortable when disagreeing with a speaker in public, and even in speaking out in a large audience. (Each of the public lectures attracted an audience, I was told, of well over a thousand.) I was therefore surprised by the intensity of the discussion that followed the lectures. In each case the time assigned for questions had to be extended. A few of the students were hostile: they talked about American economic imperialism and the American bombing of the Chinese embassy in Belgrade in May 1999, which they said was not an accident but was designed to humiliate China. But all the scholars and almost all of the students who spoke about the issue on various occasions insisted that there was no important difference between Western values or conceptions of human rights and their own.[12]
A spirited debate did break out at Tsinghua University about whether the Confucian tradition really was different from the Western "Enlightenment" tradition,as has for so long been supposed. But that was a debate about the proper interpretation of Chinese cultural history, not about the speakers’ own values. Professor Xu Zhangrun of the Tsinghua faculty then spoke at length and emotionally; he said that of course the fundamental situation of human beings is the same everywhere, that there should be no more talk of distinctive Chinese values, and that China must begin what he called a "renaissance" of liberal individualistic values. When he finished, the large audience applauded loudly. In each discussion I described instances of Chinese violations of human rights that had been reported by Human Rights in China, and I asked the audiences that had embraced liberal values so openly to comment on these.[13] But no one acknowledged knowing about these particular cases. Chinese scholars and journalists whom I met with privately said that this was entirely possible, that even fairly well informed academics would be ignorant of violations that had been publicized in the West. Though the law provides that criminal trials be public, that provision is often ignored. Nevertheless, the sharp conflict between academic enthusiasm for liberal values and political reality raises important questions. Even if the professors and students were ignorant of the specific examples of political arrests and repression I mentioned, they must know that these often occur. (When I pointed out that they must miss colleagues who were no longer in the classroom, one student replied, lamely, that people sometimes take sudden extended trips.) Why were those who criticized the government and embraced liberal democracy so openly on public occasions not afraid that they would be punished as well? Why did they seem so optimistic that China is moving at last in the right direction, that the debate between rival conceptions of the rule of law is therefore timely, even urgent, that the values they share with the West are more important than any that divide us, and that China might have, at least as a possible future, a "renaissance" of liberal ideals? Several partial explanations seem plausible. Chinese academics and intellectuals are apparently now convinced that the government will not punish or try to prevent pleas for more democracy or better protection of human rights that are made in academic forums, or on other occasions that carry little threat of fomenting political movements. The Communist leaders, several people told me, are very much aware that the Party came to power through mass movements and is likely to lose power only in the same way; it is therefore frightened of any group, even a non-political group like the Falun Gong, that has demonstrated its power to produce mass meetings and demonstrations, or of any publication, like that of The Tiananmen Papers, that threatens to embarrass the present Party leaders and undermine their personal position. But the Party is not frightened of purely academic discussions in which only general philosophical opinions and aspirations are mooted. (When I asked why no attempt was made to interfere with my own lectures, once the tenor of the lectures had become known to the Party members who attended, I was told, with great delicacy, that I seemed incapable of bringing a crowd into the streets.)
The scholars’ confidence that they are safe so long as they speak only within academic environments might be misplaced. The distinguished American scholar of China Perry Link wrote recently in these pages that the government cultivates uncertainty about what it will punish as a policy of deterrence,[14] and I had a keen sense of that uncertainty throughout my visit. A Western expert on China who provided me with a list of scholars, lawyers, and journalists whom I might like to see while in China suggested that I first call one of them for help in arranging meetings with some of the others. He and his wife were amazingly generous with their time and hospitality, and he did arrange meetings with people I would not otherwise have met. Though neither he nor his friends were political activists, some of them did ask that I keep to myself the list I had been given. (Another, whose name was not on the list, expressed surprise and some disappointment that it was not.) Academics can undoubtedly go too far even in purely academic discussion. I was told, for example, that no one would criticize the government’s policy in Tibet in class. But the political repression, though often savage and arbitrary, seems pragmatic. It is limited to what the government regards as genuine or potential threats to its position and is intended to discourage open political opposition; it is not an attempt at total mind-control. The optimism about the future I sensed requires a different explanation, however. The personal situation of the intellectuals and students I met is undoubtedly better than it was only a few years ago.The prosperity that China’s new laissez-faire policy of economic freedom of choice has produced is evident on the streets, in the shops, and on the many construction sites of the major cities, and most of the students I talked with privately seemed more concerned with their own economic prospects than with politics. The new prosperity is threatened, as some leaders admit, by growing unemployment. In any case that prosperity is selective: it is concentrated in the cities, while most rural areas remain undeveloped and are in often worsening poverty.[15] The students and intellectuals are in the cities, and their optimism might reflect their growing satisfaction with their own lives and prospects.The optimism may also reflect, however, a political opinion that was frequently expressed to me, even by those who were most critical of aspects of government policy. Though many scholars and students believe that China should and will grow more democratic and liberal, many of them also think that its progress will be more secure if the pace is gradual.They fear that China, in the phrase many of them used, is not quite "ready" for the full democracy that they believe will come. They refer again and again to the fate of Russia, where they believe democracy came too fast and produced what they call "chaos": crime, corruption, inefficiency, and vulnerability to separatism and border terrorism.
In a conversation with Zhiping Liang, the director of the Legal Culture Research Center, Qin Hui, an eminent political philosopher, and Wang Hui, the editor of Dushu, was told that the key issue dividing China’s intellectuals is whether economic reform -moving from state socialism to a largely free market-should be by quick "shock therapy," as in Russia, or gradual, in order to protect those who would be ruined by a sudden liberalization of the economic system.[16] Intellectuals also seem divided about the speed of political reform, and many of the enthusiastic liberals and democrats in my audiences seemed to accept that a period of continued political control-particularly control of organized public protest and independent political action-will be necessary to secure their long-term goals. Some said that these goals would still be achieved in the not-too-far-off future, even though they were not very clear how a more democratic system would emerge.
It is important to remember that the professoriate and intellectuals in China are almost all young. The generation that would now be senior academics was annihilated by Mao in the Cultural Revolution. The young professors feel the loss of mentors keenly, but they also feel that they have time to wait for their society to change. They may be wrong, however; time is not necessarily on their side. I asked a group of students over lunch how many were already members of the Party and planned political careers: three of them were and did. I asked if they were confident that their generation of leaders could and would end human rights abuses and insist on the rule of law once they came to power. They were uncertain; it is natural, one said, not to risk losing power when one has it. China’s government has abandoned the lethal ideological totalitarianism of Mao’s era, and of other twentieth-century tyrannies. But its citizens should now fear an older and perhaps more durable form of repression: rule by people with fewer ideological commitments but with enormous power ..
Notes
[1] See an excellent article by Albert H. Y. Chen, who is the dean of the Hong Kong University Law School, "Toward a Legal Enlightenment: Discussions in Contemporary China on the Rule of Law," UCLA Pacific Basin Law Journal, Vol. 17, Nos. 2 and 3 (2000).
[2] For an account of Chinese legal tradition, and of recent changes, see Stanley B. Lubman, Bird in a Cage: Legal Reform in China after Mao (Stanford University Press, 1999).
[3] See A.C. Grayling, "When China Cracks," Prospect, June 2002, p. 62.
[4] See "Not Welcome at the Party: Behind the ‘Clean-Up’ of China’s Cities," a report published by Human Rights in China, October 1999.
[5] See "Prominent Chinese Lawyer Detained by Police Since Early May," The Washington Post, June 7, 2002, p. A20.
[6] "Prominent Chinese Lawyer Detained by Police Since Early May."
[7] See "Nations Behaving Badly," The Atlanta Journal and Constitution, June 2, 2002, p. 1E.
[8] See The Tiananmen Papers, compiled by Zhang Liang, edited by Andrew J. Nathan and Perry Link (Public Affairs, 2001); see also "‘Tiananmen Papers’ Provokes Crackdown; Book’s Compiler Reports Raids on Suspected Contributors in 10 Provinces," The Washington Post, June 5, 2002, p. A19.
[9] Some of the speakers and commentators spoke in English, but most spoke in Chinese (except in Hong Kong) and the report that follows is therefore based on either simultaneous or consecutive translations from Chinese to English for me by, among other skillful translators, Liping Hu, who is a senior interpreter of the United Nations Secretariat in New York and a guest professor at Peking University and Fudan University. The Tsinghua conference was videotaped, and I understand that at least portions of the videotape will be made available in China on CD under the title "International Conference on Dworkin’s Legal Philosophy." Information as to the availability of these can be obtained from Professor Wang Chenguang at wcglaw@dns.law .tsinghua.edu.cn.
[10] The Supreme People’s Court of China has recently declared, overruling positions it had taken in 1955 and 1986, that the constitution can be applied in civil rights and other cases in ordinary courts. See Zhenmin Wang, "Can the Chinese Constitution be Applied in Court?," Law and Commerce Review, Wuhan, Issue 5, 1999. I understand that three cases are now pending in which lawyers have asked the Supreme People’s Court to take the further step of overruling legislation as unconstitutional. The lawyers who spoke on the issue did not expect that court to attempt to exercise that power.
[11] Much of that discussion turned on the correct analysis of a recent case decided in a local court and now on appeal. An elderly farmer had taken a young mistress who lived with his wife and himself; when he developed cancer, his wife left him, and his mistress cared for him until his death. He changed his will when near death to leave all his property to the mistress. The new will did not violate any formal legal requirement, but the local court nevertheless refused to enforce it and ordered the property transferred to the wife. The judge said (I gather from the participants’ reports) that the will was offensive to the local public who believed in the sanctity of marriage.The speakers who discussed the issue seemed mainly agreed that the decision was wrong, but disagreed about why. One speaker, who declared himself a legal positivist, found the decision faulty because the judge had cited morality in his argument; the others, all of whom rejected legal positivism, said it was wrong because the judge should have faced the moral issues involved directly rather than deferring to popular opinion, which compromised judicial independence as much as deference to government does.Many of those who took that position cited with approval an old American case that I have several times discussed in my own work, in which the New York Court of Appeals, by majority vote, refused to enforce a will in favor of the testator’s grandson because the grandson had murdered him. The New York court said that judges may properly refer not only to specific statutes but, in interpreting those statutes, to general principles embedded in the law overall, like the principle that no one should profit from his own wrong.
[12] Dean Albert Chen of the Hong Kong law faculty, at a small dinner after the lecture there, suggested that the right kind of respect for persons might require emphasizing and enforcing their responsibilities to the community at large.
[13] See "Cases of Urgent Concern," compiled by Human Rights in China, May 2002.
[14] Perry Link, "The Anaconda in the Chandelier," The New York Review, April 11, 2002.
[15] See Craig S. Smith, "China Juggles the Conflicting Pressures of a Society in Transition," The New York Times, July 15, 2002, p. A6.
[16] Wang Hui has written an interesting article on this issue which I read in an as yet unpublished English translation under the title "The 1989 Social Movement and the Historical Origins of Neo-Liberalism in China." It is published in Chinese in Taiwan in A Radical Quarterly in Social Studies, No. 42 (June 2001), pp. 1-65.
