The ethical is always more robust than the legal. Over time, it is the legal that should converge to the ethical, never the reverse. Laws come and go but ethics remain.
Sextus Empiricus, 200 AD.
For centuries Western monarchs derived legitimacy from a God Who lent authority to the laws they promulgated. The simultaneous demise of God and the monarchic principle in 1918 left the law legitimized by force alone and, a century later, our distrust suggests that it has failed to converge with the ethical.
Things were little better in China two thousand years ago but, before we examine the evolution of its legal system, we must recall that it exists not only to suppress crime but to serve a national goal that ninety percent of the population shares: the creation, in two stages–xiaokang and dàtóng–of a radically advanced society.
Confucius’ Book of Rites, in one of its most celebrated passages, reads:
Once Confucius was taking part in the winter sacrifice. After the ceremony was over, he went for a stroll along the top of the city gate and sighed mournfully. He sighed for the state of Lu. His disciple Yen Yen, who was by his side, asked: ‘Why should the gentleman sigh?’
Confucius replied: ‘The practice of the Great Way, the illustrious men of the Three Dynasties–these I shall never know in person and yet they inspire my ambition! When the Great Way was practiced, the world was shared by all alike. The worthy and the able were promoted to office and men practiced good faith and lived in affection. Therefore they did not regard as parents only their own parents, or as sons only their own sons. The aged found a fitting close to their lives, the robust their proper employment; the young were provided with an upbringing and the widow and widower, the orphaned and the sick, with proper care. Men had their tasks and women their hearths. They hated to see goods lying about in waste, yet they did not hoard them for themselves; they disliked the thought that their energies were not fully used, yet they used them not for private ends. Therefore all evil plotting was prevented and thieves and rebels did not arise, so that people could leave their outer gates unbolted. This was the age of Grand Unity, dàtóng.
Now the Great Way has become hid and the world is the possession of private families. Each regards as parents only his own parents, as sons only his own sons; goods and labor are employed for selfish ends. Hereditary offices and titles are granted by ritual law while walls and moats must provide security. Ritual and righteousness are used to regulate the relationship between ruler and subject, to insure affection between father and son, peace between brothers, and harmony between husband and wife, to set up social institutions, organize the farms and villages, honor the brave and wise, and bring merit to the individual. Therefore intrigue and plotting come about and men take up arms. Emperor Yu, Kings Tang, Wen, Wu and Cheng and the Duke of Chou achieved eminence for this reason: that all six rulers were constantly attentive to ritual, made manifest their righteousness and acted in complete faith. They exposed error, made humanity their law and humility their practice, showing the people wherein they should constantly abide. If there were any who did not abide by these principles, they were dismissed from their positions and regarded by the multitude as dangerous. This is the Age of Lesser Prosperity’ xiaokang.
In 2011, the Prime Minister defined xiaokang as ‘a society in which no one is poor and everyone receives an education, has paid employment, more than enough food and clothing, access to medical services, old-age support, a home and a comfortable life’ and, when China reaches that goal on June 1, 2021, there will be more drug addicts, suicides and executions, more homeless, poor, hungry and imprisoned people in America than in China.
Guided by Xi Jinping Thought (which, like Deng’s Thought which preceded it, is a plan and its ethical justification) the National Family will then attempt to create a dàtóng society, an advanced version of Marx’s notion of Communism, ‘from each according his ability, to each according to his need’. Once it is clear that virtually every Chinese is on board with this program, this account of the steps towards it makes sense.
Anciently, laws protected the State from the people (not vice versa) and the elite assumed that everyone was naturally wicked, controllable only by impersonal laws, “Applied to rich and poor alike for offenses large and small because, if small faults are pardoned, crimes will be numerous”. Yet, though Legalism had prevailed for a thousand years, crimes were stubbornly numerous because, Confucius explained, “If people are ruled by uniform laws and punished uniformly they’ll certainly try to avoid punishment but will never develop a sense of shame. If, on the other hand, they’re led by morally admirable people and encouraged by rules of good behavior they’ll emulate their leaders, internalize the moral code and gradually become good”.
Provincial governors began experimenting with his ideas and, four centuries later, the emperor formally adopted them and urged his officials to set a virtuous example and make repression unnecessary. Despite failures and setbacks, the rule of virtue proved popular, the spread of literacy introduced it to the masses and, just as the Master had predicted, the people gradually became good says F. W. Mote, “More important than penal law and judicial procedures in maintaining order in the community were the methods of arbitration and compromise. That route to resolving disputes allowed the parties to retain their dignity, utilized social pressures as understood by all and gave problem-solving roles to senior figures acting as arbitrators that reinforced the community’s recognition of its shared ethical norms. Some regions of China were known to be more litigious, more quarrelsome, less placid than others but, throughout their observations of ordinary Chinese life from the sixteenth century onward, early European travelers remarked on the mannerliness, good humor and social graces of the common people”.
Then as now, China’s investment in crime prevention is astounding. The common people still address older strangers as ‘auntie,’ ‘uncle,’ ‘grandfather,’ or ‘grandmother’ and act, literally, as their brother’s keepers. Social pressure, amplified by social media, is immense and even strangers commonly address mischief-makers in the street. Instead of sliding down a slippery slope, would-be criminals must struggle through a briar patch of family, workmates, classmates, neighbors and strangers intent on socializing them. Mass media regularly explain new laws and schools, offices, factories, mines and even army units discuss them. Volunteers on every block liaise with police who know everyone in their precinct by name and who have tools–temporary restraining orders and home confinement among them–their Western colleagues can only dream of. Citizens have won the right to video police who must publish the status of all active cases online. Regulations have clarified concepts like the exclusion of illegally obtained evidence and made police and court officials responsible for wrongful prosecutions–for life, with no statute of limitations. All criminals, from arrest to release, must receive humane levels of material comfort and dignity and can prosecute prison staff if their rights are breached. Criminologists assume that even murderers can reform and inmates must participate in career, legal, cultural and a course of moral education that considers the social consequences of their crime.
As in France magistrates, traditionally regarded as neutral truth seekers, interrogate suspects, examine evidence, hear testimony and render verdicts. Since most have no formal legal training President Xi, who experimented with judicial oversight committees as a provincial governor, required jurists to be selected on their professional track records rather than political correctness and, by 2016, Shanghai’s Judicial Selection and Punitive Committee Trial Point[*] had expelled a High Court prosecutor, two sub-prosecutors, the Vice President of the Provincial Supreme Court and a senior circuit court judge.
In 2016, Xi explained to a study group, “Law is ethics expressed in words and ethics is law borne in people’s hearts. In state governance, law and ethics have equal status and play the role of regulating social behavior, adjusting social relations and maintaining social order. If rule of law embodies moral ideals they provide reliable institutional support for ethical behavior. Laws and regulations should promote the virtuous, while socialist core values (prosperity, democracy, civility, harmony, freedom, equality, justice, the rule of law, patriotism, dedication, integrity and friendliness) should be woven into legislation, law enforcement and judicial process”.
The culture’s traditionally low opinion of lawyers received a boost from current Prime Minister Li who, as a freshman, translated commentaries on British Common Law and the Supreme Court’s internship program now attracts top students. Trained appeals court judges have been overturning decades of wrongful convictions, ordering restitution and requiring courts to study the reversals. The court’s website–which has live-streamed six hundred thousand trials, explains unfamiliar concepts like due process, invites criticism of new laws and provides a database for legal scholars–has received five billion hits.
A Shanghai Trial Spot provides defense lawyers for every criminal defendant (mandatory only for juveniles, the disabled and those facing life imprisonment or death) and wealthier provinces are following suit. Others are trialling neighborhood mediation committees. One jurisdiction found that locating mediation offices in courthouses dramatically reduced litigation costs and now Beijing wants all lawyers to take mediation training. An Internet Trial Spot bundles free mediation, dispute settlement and legal aid on a platform that connects plaintiffs to thousands of lawyers, notaries and judicial appraisers. Another uses facial and speech recognition technologies and electronic signatures so that all parties can participate in online legal proceedings. In another Trial Spot plaintiffs go all the way to trial using Weisu, an app that lets them join the courtroom from home while the program verifies their ID, submits their files and transcribes their testimonies using voice-to-text. The government plans that, by 2020, everyone will be able to afford legal proceedings and, should they wish to appeal, the courts will have electronic records of their case.
Hangzhou, home of Jack Ma and Alibaba, launched the first cyber court in 2017 to handle exclusively online disputes like e-commerce complaints, online loan litigation and copyright infringement. On its website, Beijing’s Internet Court provides artificial intelligence-based risk assessment tools as a public service and automatically generates legal documents, applies machine translation and allows people to interact with its knowledge base orally to accelerate and simplify settlements. In 2018, it heard TikTok and Baidu contest ownership rights to user-generated content in short video apps.
In Taoist-Confucian China, of course, no-one is really separate: the government is part of the family and the courts are part of the government and nobody is under any illusion that they’re independent since, to reach dàtóng, everyone must be on the same page and navigating to dàtóng is the responsibility of the Communist Party. That’s why Chief Justice Xiao Yang told a shocked British journalist, “The power of the courts to adjudicate independently doesn’t mean independence from the Party at all. On the contrary, it embodies a high degree of responsibility vis-à-vis the Party’s [dàtóng] program”. The program, with ninety-five percent popular support, will deliver xiaokang prosperity and the Party’s logic is ancient: once everyone has a home, an education, safety, plentiful food, clothing, medical and old age care in 2021 then everyone can afford to improve their manners, good humor and social graces. But if the logic is ancient, the technology is not.
Technologies that revealing details about personal integrity have always caused alarm. In 1968, when credit bureaus were reporting debtors’ sexual and political preferences, The New York Times warned, “Transferring such information from a manual file onto a computer triggers a threat to civil liberties, to privacy, to a man’s very humanity–because access is so simple”. Fifty years later, three credit bureaus evaluated everyone, The NYPD surveilled New Yorkers with drones, the Federal Child Support Registry tracked parents, the No-Fly List grounded troublemakers, an IRS list blocked delinquents’ passports, the Federal Sex Offenders List wrecked offenders’ lives and the National Security Agency’s mission was, ‘Know It All, Collect It All, Process It All, Exploit It All’.
The absence of capitalism, the efficiency of its crime prevention and the traditional preference for all cash, face-to-face transactions rendered credit records unnecessary until the 1980s, when Beijing launched Consumer Rights Day as a trust-building exercise. Officials and vendors took to the streets, experts discussed product quality and TV screens flashed shots of fake merchandise being shredded, crushed and burned. Though consumers are more sophisticated today, one element of the campaign remains popular: and ‘awards’ ceremony in which CEOs of cheating companies are hauled before a billion gleeful viewers, beg forgiveness and promise to change their companies’ wicked ways. Most are local but, when Apple was called out for persistently defying the two-year warranty law, CEO Tim Cook apologized and conformed. The CEOs of Volkswagen and Nikon have also taken the Walk of Shame, altered policies and groveled satisfyingly.
Then, in 2001, Internet fraud exploded, a cycle of distrust caused consumer confidence to plummet…….Continue…