德沃金：在北京认真对待权利[纽约书评2002年9月26日]

行政法论坛

{中文部分为节译}

The New York Review of Books[纽约书评]

SEPTEMBER 26, 2002

Taking Rights Seriously in Beijing

[在北京认真对待权利]

By Ronald Dworkin

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.[这个五月我被邀请去中国两周，首先去参加了在清华大学法学院开的一个研讨会，然后作了几次讲座。清华的会是由它们的法治和人权中心组织的，在清华以及其他所有的讲座上，我都被问及合法性、人权和民主，我在杭州的大学的讲座题目就是“认真对待人权”。虽然许多年来我发表自己的观点，为公民自由和政治自由而声辩，但我被问及这些问题时，还是很困惑。中国忽视法治、抑制民主的纪录以及其他系统化的侵犯人权是人所共知的，而这些大学，就和中国的其他机构一样，最终都在共产党的控制之下。]

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（纽约大学中国法教授科恩）, "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（北京大学法学教授贺卫方）, 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. （第一天在清华的会主要探讨的是法治，来自中国、日本和其他国家的各大学学者面对着律师、法官、法学教授、哲学学者和学生，后者也参加了讨论，发言人和讨论者对西方的法律和法学有着广泛的了解，讨论的质量给人留下了深刻印象）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. （好几位指出中国法律制度的缺陷，承认非常多的法官缺乏法律素养，并从道德或政治而非法律背景出发判决案件）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. （在清华第二天的会议上，以及在中国政法大学、上海的复旦大学、杭州的浙江大学、香港大学，以及在《读书》杂志，一份中国顶级知识分子刊物组织的座谈会上）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.) （我被告知每次讲座都吸引了超过1000人的听众）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. （有些学生是不友好的，他们谈及美国经济的帝国主义，以及美国1999年5月轰炸贝尔格莱德大使馆，他们认为这不是意外而是对中国的羞辱）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, （儒家传统与西方启蒙传统是否确有区别）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（清华大学许章润教授）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. （对自由价值的学术热情和政治现实的冲突的重要问题）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.[我见到的知识分子和学生的个人境况，毫无疑问的比几年前要好了许多] 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. [尽管许多学者和学生确信中国应进一步民主自由，但他们中的许多人认为这一进程如是渐进的，则更为妥当]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,（在与法律文化研究中心主任梁治平、著名的政治哲学学者秦晖、读书主编汪晖的交谈中）I 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（陈弘毅）, 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（陆思礼）, Bird in a Cage: Legal Reform in China after Mao （笼中鸟：毛之后的中国法律改革）(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（王振民）, "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.