Ancient China had two philosophical pillars of good governance: Legalism and Confucianism. The dual traditions left the Middle Kingdom key concepts about justice. The former espoused equal treatment before the law, regardless of background or position. The latter taught people that order and the advancement of society lay with the individual and his dedication to better himself through study and moral behavior.
Speaking at the Council on Foreign Relations on Thursday in New York City, Chinese activist and self-trained lawyer Chen Guangcheng alluded to both traditions in his criticism of his own government.
Chen, who is now in the U.S. officially as a student in comparative law at New York University, left China and came to the U.S. on May 19. Chen arrived at the U.S. Embassy in Beijing on April 20, just days ahead of the U.S.-China Strategic Dialogue, escaping house arrest in his native Shandong province. Chen, who is blind, stayed until May 2, when he was transported to a major hospital in the capital for medical treatment. The mysterious circumstances of his arrival at, and departure from, the embassy have led to widespread speculation and unsubstantiated guesswork in Western media about who orchestrated and supported it, possibly including elements within the Chinese government itself.
Chen says he was not seeking political asylum from the U.S., but was only taking refuge for his personal safety, thus avoiding formally burning any bridges back to China. Chen said at the engagement that he wanted "freedom to travel in and out of China... I do want to go back to China." Seeking asylum and becoming a formal political refugee would likely have closed that option to him. But first he will study English and Western law in New York, for an as yet unspecified length of time.
The interest in Chen was evident in the attendance at the CFR event. Non-governmental organizations, think tanks, business groups and academics, including representatives from Human Rights Watch, Citigroup, Moody's, Morgan Stanley, the Ford Foundation and major universities and law firms, all came to see the first public appearance of the man at the center of a major international controversy.
Quoting from Confucius, Chen said China should work hard to continue improving legal conditions by learning from others, including Asian and Western democracies. The country needed a process of "sharing of knowledge" in terms of legal reform, so that it could "learn from what is good, and avoid the bad."
Sage advice aside, Chen did offer warnings about the challenges China now faced. "The law situation in China has deteriorated," he said.
The difference between what local authorities actually do to enforce the law and what the central government proclaim is quite vast, he said. Though modern China has a progressive constitution, drafted in 1982, actual enforcement of the law according to the letter of that constitution, as well as real knowledge of its principles, is widely absent. This, along with widespread abuse, raises serious questions about the government's claims to have established a real and resilient system for the rule of law.
Chen noted that two major problems exist within the Chinese legal system today. First, there are good laws, but "they are not being well-enforced." Second, "judicial agencies themselves are not being told to enforce the law, but to do illegal things."
The push in recent years by Chen and other lawyers in China to use the text of the constitution itself to fight corruption and illegal activities by local officials is innovative and unprecedented, but carries high risks, as his own imprisonment and isolation demonstrated.
The Chinese constitution states that "All state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings must abide by the Constitution and the law," which would include the Communist Party.
But how do you hold officials responsible when they are in charge of a government dominated by one political party? The process of citizens bringing corrupt officials to justice may still be hard for the party to stomach. In a political system with no real separation of powers, curtailing corruption is a task guarded by official bodies, not the prerogative of private citizens.
Chen noted that China lacked good role models in government. In response to questions about where to place blame for current problems, Chen said the question of who is ultimately responsible depends on "who is controlling society's resources. Whoever is in control should be responsible."
"There's no legal basis for [illegal] actions," by local governments, he said, but "they are still not being corrected."
But Chen also suggested that the central government lacks the capacity to make deeper reforms. "They know what's going on, but they don't know completely," Chen said. That means high-level officials may be kept blind to the goings-on at the provincial and city and township level by their own underlings.
That raises two other serious questions. Does the Chinese government lack the capacity to carry out critical legal reforms? And do enough members of the central government even really want to?
Yet the struggle between liberal reformers who want to push the government toward adopting more cosmopolitan values and dogmatic conservatives is an age-old one in China. By the end of 2012, the Communist Party will have formally installed new leaders to replace the current oligarchy. If those new leaders decide to move the government more aggressively toward reform of the legal system and law enforcement agencies, they will still need to convince competing segments of their own party.
But Chen says for society as a whole, that may no longer matter. "Everything is in a state of historic transition." Indeed the flowering of the Information Age in China means that netizens and bloggers now quickly search and disseminate information about government malfeasance. Chen believes that spells genuine democracy within his lifetime.
But it won't necessary be Western-style democracy. China will have many examples in East Asia to look to, including neighbors South Korea and Japan. Jerome Cohen, co-director of New York University School of Law's U.S.-Asia Law Institute, who hosted Chen at CFR, noted that mainland China already has an example of a Chinese-speaking, dictator-led government ruled by a single party that effectively made a transition to democracy without disruption to social order - Taiwan.
And on the subject of universal values or accepted norms of behavior throughout the world, Chen noted that "China is not an exception." "Nothing in this world is impossible," were his parting words.