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Taking
Academic Games Seriously Liufang FANG 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. (The author is Professor of Law at the Chinese University of Political Science and Law and Visiting Scholar at Harvard Law School in the 2002-2003 academic year, and his e-mail address is lfang@law.harvard.edu.) Notes: |