50aa7e82623730.61785928

7/27/2019 50aa7e82623730.61785928

1/12

65995 65995Institution Harvard Law School Course / Session S12 Alford- Comp Law 1LExam Mode TAKEHOME NAExtegrity Exam4 > 11.12.9.0 65995-S.-12-1 Section All Page 1 of 12

__________________________________________________________________________________________

Institution Harvard Law School

Printed on September 5, 2012

Course S12 Alford- Comp Law 1L

Instructor NA

Exam Mode TAKEHOME

Exam ID 65995

Count(s) Word(s) Char(s) Char(s) (WS)

Section 1 3000 16664 19685

Total 3000 16664 19685

7/27/2019 50aa7e82623730.61785928

2/12


__________________________________________________________________________________________

Answer-to-Question-_1_

I. Introduction

Perrys arguments bring to light several important distinctions between Chinese and

Western conceptions of rights both throughout history and today that align with many

of the themes of our course. Yet, her article overlooks, minimizes, or mischaracterizes

several important ideas, historical developments, and current events that we have

explored that illustrate a greater degree of overlap between what Perry describes as the

Chinese conception of rights as focused on subsistence and development and what she

describes as the Anglo-American language of human rights focused on individual and

political liberties.

Perrys central thesis is that an enduring emphasis on collective socioeconomic

justice distinguishes mainstream Chinese political thought from an Anglo-American

focus on individual rights, and thus the contemporary Chinese political order is neither

as vacuous nor as vulnerable as sometimes depicted. Underpinning this argument is the

idea that contemporary China in fact embraces rights, but in a fundamentally distinct

manner from the typical Western conception. Perry argues, drawing on evidence from

throughout Chinese history, that Chinas rights focus centers on socioeconomic

objectives specifically subsistence and development, as opposed to individual liberties

particularly rights that serve as protections from the state as well as rights to participate

in the exercise of government power. Drawing on examples of historical and recent

protests, Perry assumes that this trend reflects a preference, or at least prioritization,

among the ordinary Chinese people for these collective, socioeconomic rights.

In her useful attempt to provide an accurate portrayal of China and its approach to

7/27/2019 50aa7e82623730.61785928

3/12


__________________________________________________________________________________________

concepts surrounding rights, however, Perry fails to provide a fully complete picture by

neglecting ideas and history we have discussed throughout the course that revolve around

personal dignity and morality, the desire of the ordinary Chinese people to have a say

in their government and exercise their ability to agitate for change, and the distinctions

between the goals and actions of the governmental apparatus and those of individual

citizens.

II. Ancient Thinkers and Historical Comparisons

Perry sees the distributive justice elements of Confucianism, as well as the

conception that rulers are simply part of the social hierarchy as opposed to a party to a

Lockean social contract as Confucianisms most central feature. The Analects, and

specifically the Rectification of Names, provide support for these assertions as they call

for clear and strictly circumscribed roles. While the Analects include discussion of the

particular responsibilities rulers have for their subjects, and the duty of subjects to adhere

to their roles, the text does not include provisions for general participation in the affairs

of state for ordinary subjects. Confucianism favored a minimal role for explicit law and

its enforcement, instead promoting the strength of virtue and example, making law a type

of guideline to which members of society voluntarily adhere.

By contrast, we saw in Locke that the right to rule is explicitly tied to a bargain or

contract between the ruler and the ruled whether an actual contract or a type of fiction

about the nations founding to which later generations are implicitly bound. Further,

Confucian works include little discussion of or enthusiasm for individual liberty the

central thrust of Locke focusing instead on the duties of various members of society,

including of the ruler to provide for his subjects and to exhibit virtue.

7/27/2019 50aa7e82623730.61785928

4/12


__________________________________________________________________________________________

As Perry notes, Mencius makes clear that ren, the support of the people, is linked to

the emperors right to rule. Mencian works are replete with references to the need to

maintain the livelihood of the people in order to maintain the Mandate of Heaven, and

include ominous references to potential rebellions by the peasants if a ruler fails to satisfy

them. Yet, as Perry usefully explains, in discussing how rulers can maintain popular

support and legitimacy, Mencius emphasizes socioeconomic factors, such as the need to

ensure a strong harvest and the livelihood of the peasants. None of the major Confucian

figures we studied including Confucius, Mencius, and Xunzi highlighted individual

liberty or political participation as an essential element of leadership, but each of them

stressed the need to maintain the social hierarchy and exhibit virtue.

As a result, Perrys comparison of Mencius to Mao is illuminating because, despite

Maos own rejection of Confucianism, it highlights the connection between his insistence

that the peasants were the vanguards of the Revolution to the ancient Mencian idea that

peasants can rebel if the ruler is not providing for their basic needs. As history has

shown, Marxism has rarely been adopted by major nations, and those that have adopted

these philosophies Russia and China each differed in important respects from Marxs

vision of an uprising of the urban proletariat. Thus, it is important to understand why

Marxism emerged in China, why it has been sustained, and how it developed its

distinctive Chinese characteristics. Perrys discussion of the link between one of Chinas

most enduring strains of thought Confucianism and the emergence and sustained

success of Maos version of Marxist thought provides at least one compelling rationale.

Nonetheless, the elements of Confucianism that Perry focuses on to advance her

thesis overlook major elements of the philosophy that pertain to an accurate portrayal of

China and its conception of rights. Much of Confucianism arguably its central

7/27/2019 50aa7e82623730.61785928

5/12


__________________________________________________________________________________________

elements - is suffused with social and moral concepts, such as dignity and virtue, that

have little to do with subsistence and development, the rights that Perry argues are

central to Chinese culture and history. For example, one fundamental element of

Confucianism is the concept of humaneness. To be sure, one could argue that this type

of benevolence primarily involves ensuring the subsistence of others, but combined with

the Confucian emphasis on virtue and model social behavior, this seems unlikely.

Additionally, Confucianism stresses loyalty to ones own family even to the extent of

hiding bad acts that do not serve the collective good of society another social and moral

precept. To draw on other elements of Chinese history, the Great Qing Code includes

social or moral offenses such as incest or lack of filial piety among the Ten Abominations

neither of which has a direct affect on subsistence or development. Of course, just

because these early philosophies or legal systems dealt prominently with social and moral

issues does not mean that debates about individual rights will eventually follow, but it

does provide crucial context to Perrys assertions that these ancient schools of thought

were primarily focused on socioeconomic factors.

III. The Republican Era and the Influence of the West

Perrys use of Liang Qichao as representative of Republican-era discourse is useful

but incomplete because it neglects the rich and varied history of prominent thinkers of

this period in dealing with the influence of the West, including Western notions of

individual rights. For example, Liangs close friend, the brilliant and radical Kang

Youwei, who succeeded in gaining access to the inner cabinet of the Government in 1898

and lead the reform by decree movement for approximately 100 days, espoused a far less

collectivist philosophy and challenged traditional understandings of Confucian thought.

7/27/2019 50aa7e82623730.61785928

6/12


__________________________________________________________________________________________

Kang strongly advocated for greater gender equality and moral relativism, as well as

radically restructuring Chinese society in order to stem internal disorder. Prince Kung,

another Republican era thinker, endeavored to open and modernize China, with the goal

of leveraging foreign technologies and education in order to better enable China to resist

exploitation from these foreign powers. Wang Tao went ever further, arguing that China

needed to emulate not just technologies and techniques but also values like openness and

curiosity. Each of these varied approaches at least touch on notions related to Western-

style individual rights in a manner absent from Perrys circumscribed discussion of

Liang.

Moreover, Perry neglects important figures such as Sun Yat-Sen and John Wu,

whose evaluations of and attempts to borrow from Western legal systems comprise key

events in the development of the Chinese conception of rights. Rather than simply

attempt to appropriate fully formed and novel Western ideas or completely reject them in

favor of Chinese traditions, Sun argued for combining the best elements of each. While

he did emphasize the need for collective action most famously in lamenting that

Chinas citizens were just a heap of loose sand he also argued for a gradual transition

to a constitutional government of five branches that would improve upon Western-style

democracy. Similarly, John Wu, who gained a first-rate education in both American legal

rules and the norms and penumbral protections that underpin our system as a result of

attending the University of Michigan and also befriending Justice Holmes, attempted to

incorporate these concepts into Chinas new legal structures, but failed to successfully

adapt them to Chinese conditions.

Ultimately, all of these figures, but particularly Sun and Wu, failed to strike the

balance Roscoe Pound advocated for in his remarkable Harvard Law Review piece

7/27/2019 50aa7e82623730.61785928

7/12


__________________________________________________________________________________________

following his time advising the Nationalists in China in the middle of the twentieth

century. Pound emphasizes that China could not simply try to appropriate the best of the

Wests methods, but rather must retain a connection to traditional mores and customs of

law in order for a new code to be successful. Pound famously argued that law is not

exclusive made (created out of best practices and possessing authority simply based on

its internal coherence and codification) or exclusively found (based on traditional

practice and customs). Pound advocated for China to apply these lessons by blending

elements of foreign legal texts and philosophies and elements of Chinese culture in a

utility-maximizing way. Rather than these hybrid approaches, however, the Mao and his

comrades defeated the Nationalists and established the PRC.

Perry omits these key elements of the period, particularly the significant impact and

appeal of Western values on major Chinese figures. True, these efforts to incorporate

elements of Western thought failed to endure in China, but a piece dedicated to

emphasizing the distinctive origins and implications of rights talk in China surely

should at least acknowledge the significant influence that explicitly Western conceptions

of law and rights had on major thought leaders of the modern era, especially a figure like

Sun, the father of the nation.

IV. Treatment of Contemporary China

Perrys conception of contemporary China treats virtually all discussion of rights in

the Constitution, official statements, and even popular discourse, as placeholders or

symbols for socioeconomic justice as opposed to individual liberty or political rights. She

points out that subsistence rights occupied top priority in the slogans of many protests,

mostly ignores or glazes over clear statements of political or individual rights such as

7/27/2019 50aa7e82623730.61785928

8/12


__________________________________________________________________________________________

Articles 34 and 35, and characterizes official statements and documents that promote

human rights as addressing xiaokang rather than normatively Western conceptions of

individual rights, distinguishing between rights to welfare and livelihood from the state

favored by China (social citizenship) and legal protections against in the state (civil

citizenship) or participation in the state (political citizenship) favored in the West.

Yet, many of the topics and readings we have studied reveal holes in these assertions.

A. Where Perry's Right

Several recent developments do support Perrys argument. For example, President

Clinton and much of the West believed that Chinas admission into the WTO would have

a profound impact on human rights and political liberty. (The Economist). Yet, ten

years after Chinas accession, its extraordinary economic growth and increased trade with

the West have not led to the political liberalization that Clinton and others predicted.

Furthermore, President Hus recent statement of the Three Supremes for the judiciary and

newly installed Supreme Peoples Court President Wang emphasis on upholding party

leadership and focusing the courts on economic development and social stability, rather

than former President Xiaos focus on enhancing judicial competence and independence,

display the state and Partys overriding concern with socioeconomic objectives.

B. Lingering Cultural Impact of the Cultural Revolution

Yet, many developments in recent decades contradict Perrys assertions. First, the

timing of the Constitution itself belies Perrys characterization of a state and polity

focused solely on subsistence and development. The PRC Constitution was adopted in

1982, shortly after the Cultural Revolution. While Deng and others primarily characterize

7/27/2019 50aa7e82623730.61785928

9/12


__________________________________________________________________________________________

the need for law reform and a Constitution to provide a stable environment receptive to

foreign investment and economic development, the lingering memory of extreme

violations of individual rights and dignity during the Cultural Revolution likely played a

significant role as well. As Professor Albert Chen noted, human rights and dignity were

deliberately trampled upon The legitimacy of a private sphere of life for each

individual was also denied; every single act done or word uttered could be examined and

used to incriminate the actor or speaker as a counter-revolutionary. Deng himself was

paraded through the streets in a dunce cap, as were other individuals who later became

important Party figures (as we saw in films during class). Thus, the desire for a stable

legal framework and some degree of constitutionalism likely represents more than merely

a desire to facilitate economic development.

C. Individual Rights Hidden in Plain Sight

Further, the establishment and evolution of the hierarchy of legal norms

demonstrate a greater concern with individual rights than Perrys arguments seem to

grant. For example, under the Administrative Litigation Law, each case is about a

specific act and a specific remedy. We focused mostly on the negative implications of

this namely that it inhibits systemic change. Yet, this also means that the system is

designed to adjudicate the claims of individuals seemingly contrary to Perrys central

argument that the Chinese system is not concerned with individual rights. Similarly, the

Qi Yuling case reveal the real debate within official Chinese legal culture regarding

whether individual citizens should be permitted to pursue claims that their individual

constitutional rights have been violated.

Moreover, in asserting that the Chinese system does not provide for rights to protect

7/27/2019 50aa7e82623730.61785928

10/12


__________________________________________________________________________________________

against the state, Perrys article underemphasizes the significance and implications of

several avenues citizens pursue to express their grievances. For example, under the

xinfang system which itself has a rich history in China dating back to the Ming Dynasty

and was updated in the Letters and Visits Regulations of 2005 - citizens can petition for

redress for harms caused by lower level officials or other complaints that have been

resolved insufficiently. Citizens heavily rely on the system, despite the fact that

successful redress is rare, time-consuming and difficult (vividly illustrated in The Story

of Qiu Ju). As a contemporary Chinese lawmaker stated in a Global Times article we

read, [i]t allows ordinary people to protect their legal rights and it also allows the

administrative branch to gain firsthand information on societal conflicts. Similar to the

environmental cases and protests we discussed with Rachel Stern and the frequent social

protests Ben Heineman discussed and wrote about in The Atlantic, these actions represent

the exercise of rights so essential to Western conceptions of individual and political rights

that they are included in the First Amendment to the U.S. Constitution.

D. Chinese Citizens Engagement with the Legal System

Similarly, Perrys characterization of how Chinese citizens engage or attempt to

engage with the legal system significantly omit major developments about which we

have read. For example, we examined in depth the role of lawyers in China who try to

advance civil liberties or protect the rights of Chinese citizens. Jerome Cohen, Albert Ho,

and others have described the unforgiving tactics the state employs to intimidate or

inhibit lawyers such as those working at Yitong, one of Chinas most prominent human

rights law firms, or those who signed Charter 08, which called for democratic reforms.

We explored how the requirement that lawyers be recertified each year is a significant

7/27/2019 50aa7e82623730.61785928

11/12


__________________________________________________________________________________________

political pressure point for the state, as those who sought liberalized bar elections were

fired, and those who retain their licenses, such as Mo Shaoping, must toe the line

carefully. We also explored how citizens are beginning to assert individual property

rights under the recent Property Law; as one citizen seeking to invoke its protections

asserted, The Constitution and the latest Property Law protect private property

ownership. (First Test Case for Newly Approved Property Law? article). We have

read about the Chinese governments attempts to control the flow of information

particularly information that promotes democratic reforms and about dissidents who are

detained or disappeared for lengthy periods of time with no information provided to

their loved ones, as was the case with Ai Wei Wei recently. Finally, we explored the

controversy over the one-child policy, and read several accounts of those in China who

seek to change it, including demographers at the Shanghai Academy of Social Sciences

who oppose governmental restrictions on the grounds of seeking economic and social

development through curbing population, and government officials in Guangdong.

E. Conclusion

Clearly, not all of these examples involve success stories for those who seek to

advocate for or exercise individual rights. In fact, many of the individuals involved fail,

and often precisely because the Chinese government values socioeconomic objectives

above all else, as Perry suggests. Yet, these examples clearly demonstrate that Chinese

citizens themselves from poor residents of the countryside using the letters and visits

system to successful lawyers to famous dissidents are advocating for the individual and

political rights Perry considers to be infused with Anglo-American norms. Surely, one

can frame almost all of these instances as dealing with socioeconomic concerns rather

7/27/2019 50aa7e82623730.61785928

12/12


__________________________________________________________________________________________

than individual rights. For example, the state justifies the one-child policy based on its

socioeconomic goals, though the U.S. Government considers the exercise of this policy

grounds for individual immigration asylum. Asserting property rights has clear

socioeconomic implications, but the legacy of Locke and Jefferson consider protecting

property rights a foundational value. Yet, as Perry herself acknowledges, aggrieved

groups or individuals often parrot the language of the state in order to maximize the

chances for a favorable outcome. Perry takes this to mean that Chinese citizens asserting

individual and political rights truly seek socioeconomic justice, but fails to fully make the

case for why the opposite is not equally likely.

50aa7e82623730.61785928

Documents

Transcript of 50aa7e82623730.61785928