UNIVERSITY OF IOWA LAW SCHOOL, CHINA PROGRAM, FEBRUARY 10, 2006
Comments Prepared for Delivery
Thank you very much. I am honored to be with you.
In any discussion of the rule of law in China it is appropriate to begin with the basics.
At the root of the basics are theories of revolution, theories of the individual, theories of economics, and questions of the adaptability of abstract systems to the culture and heritage of people in varying circumstances.
If one assumes that abstract systems of government must fit historical frameworks and the accident of social challenges at given points in time, what is so interesting about China today is that the communist model, which convulsed the country for such an important part of the 20th Century, is so alien to China's heritage. While the radicalism implicit in Marxism-Leninism may have been useful in galvanizing nationalist sentiment when a largely impoverished Chinese population faced Japanese aggression during the Second World War, few theories either of revolution or governmental management have so troubled those who have experimented with them.
Just as Americans would be wise to learn from older elements of Chinese civilization, particularly as we contend with modern problems of family break-down and urban violence, the Chinese might want to review the possibility that the decentralized American model of democratic government fits their society better than it fits smaller, more homogenous countries, including many in Europe.
To bolster this thesis, I would like to dwell for a moment on the fundamentals of the American system and draw certain parallels from our history as they relate to challenges in Sino-American relations today.
While communism is based on historical, particularly economic, determinism with a presumptive vanguard leading a class struggle, American revolutionary philosophy is premised on the empowerment of individuals endowed by a Creator with inalienable rights. Page 18
Because Americans have a general aversion to radical thought and radical change-what Tocqueville described as a cultural penchant for moderation-we have a tendency to overlook one of the profoundest of political facts: that our philosophy not only provides the most adventuresome and humane model of political and economic organization in history, but it is also a more radical revolutionary model than that provided by Marxism-Leninism.
In contrast with Marxism-Leninism, Jeffersonian democracy postulates change from the bottom up, not top down, and affirms an everlasting right of the people to revolt against governments that don't protect individual rights.
In a Jeffersonian context it is revolutionary to assume that governments derive their power and legitimacy from-and only from-the consent of the governed. It is counterrevolutionary to hold that rights are artificial things granted and thus removable by law, one's own or anyone else's.
I stress for a moment that the Jeffersonian model is more revolutionary than that provided by Marxist or extremist Muslim dogma because the hallmark of the right to revolt in natural rights theory is the establishment of constitutional democracies capable of channeling change without coercion. While during the Cultural Revolution Mao Zedong rationalized oppressive acts by advancing a theory of permanent revolution, it is in individual rights-centered systems that the permanence of revolution is ensconced. In an evolutionary way, ideas, people and movements are continually engaged because the right to revolt implicit in such documents as the Declaration of Independence and the Rights of Man provides a doctrine of empowerment to the people rather than to elitist leaders claiming the divine mantle of God, mandate of Heaven or the power to ride and interpret a crest of historical forces.
By contrast, totalitarian creeds from fascism to communism may be rooted in an effort to revolt against an existent government, but once power is usurped from prior authorities the right of individuals to establish a basis for future revolutionary or evolutionary change ceases. Such theories of revolution which call for change at the top and then deny public accountability of a successor government and the right of the people to precipitate further change become rationalizations for oppression rather than emancipation.
In America, process is our most important product. We place a great deal of emphasis on the "how" rather than the "what" of policy, on the assumption that the public will not like all laws; therefore, to have respect for the law, people must have respect for the way a law is made. Otto von Bismarck joked that the public shouldn't be allowed to watch too closely either law or sausages being made, but the fact is that, if anything, openness is America's secret sauce. It is no accident that the Page 19 first protections we established in our Bill of Rights were freedom of expression and freedom of the press so that public officials could be held accountable.
As Jefferson, Locke's philosophical godson, observed: "The basis of our government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether to have a government without newspapers or newspapers without a government, I should not hesitate to prefer the latter."
In China, the ability of individual citizens to discuss and criticize governmental policies within family, school, and workplace environments has increased steadily since the Cultural Revolution, but the right of private critical observations doesn't extend to the public market.
The Chinese government places firm restrictions on who may publish, what they may publish, and how they may publish it. Restrictions, some quite new, on the Internet and in newspapers and journals are clearly designed to protect status quo power arrangements.
By contrast, the American system is hallmarked by a system of separation of powers at the national level and purposeful tension between the Executive, Legislative, and Judicial branches. Authority is further bifurcated and decentralized by quadruplicating the same separation-of-power arrangements at the state, county, and city levels. Our system of courts, legislatures, and executive offices causes separations and tensions both within and between levels of government.
I stress these...