Xiaorong Li
Obviously the growth of a civil society and the development of the rule of law are mutually supportive and mutually beneficial. Professor Cohen has made huge imprints in leading the way to develop the latter, but also indirectly and directly to develop the former. Let me use my 5 minutes to say something about one part of this point, that is, how developing the rule of law helps the growth of civil society.
When I say civil society, I refer to a public space sandwiched between the private realm where for-profit interests dominate and the space where the State dominates. A sizable and lively public space is a fact of life in China today. Yes, you’re right, this civil society still has to fight hard for its life and for every inch of the space for independent action, against powerful forces from both sides that try to invade it and obliterate it. No matter how fragile and precarious, the fact that such a Chinese civil society is alive and kicking is monumental and it is, to a large extent, a gift from those who worked tirelessly to help the development of rule of law in the past many years, and the person who has been at the forefront of that hardworking troupe is the person we’re honoring here today.
There are many ways in which the emergence of a legal system and the promise of rule of law have boosted civil society. Three come to mind:
First, the promise of rule of law gave people hope, inspires them, and the law supplied the ammunition. The Chinese law has been the double-sword which the party-state uses to put people in their place but it is also used by the people to hold the government accountable and seek justice.
Second, many young lawyers, products of the newly minted law schools in China’s universities, take the government’s promise of rule of law and what they learnt in law textbooks literarily, but as they meet the reality of rule by the CCP political and legal committees, they become the front-row challengers of the system, and leaders in the civil rights movement.
Thirdly, members of the Chinese civil society have used the law to some extent effectively to extract positive changes, not without paying the prices, of course.
Take for example what is known as the “rights-defense movement”. Several things about this phenomenon deserve our attention:
1st, it has commanded a broad participation from many social classes/groups, not limited to the educated elite.
2nd, participants have made good use of the internet as their tools for communication & mobilization – to bypass draconic rules controlling organizing, and they have NOT been crushed by the Great Fire Wall and the heavy deployment of cyber-police;
3rd, while NGO organizing has become the primary target of the government’s war against civil society, many forms of informal organizing have been invented and they are carrying on the bulk of citizen actions;
And finally, this movement remains largely non-violent, participants appeal to the law & the Constitution, despite the fact that there have been an increasing number of violent mass incidents in clashes between protesters and the police.
These features are worth noticing because they may offer explanations as to why some small positive changes have been extracted by civil society activism from the authoritarian police state. We need only look back at the past half year to find several mini-steps forward, not mentioning earlier landmark decisions like the abolition of the Custody & Repatriation detention system. These recent steps include:
- the uncharacteristically light sentence for the young woman Deng Yujiao who accidentally killed an official in self-defense last summer;
- the backing out by government from its order to mandatorily install filtering software Green Dam Youth Escort on new computers last July;
- the quiet acknowledgement of “black jails” in the official media in recent weeks,
- and the lift of ban by the Shanghai government two weeks ago on activist Feng Zhenghu's return from Japan after his 92-days protest at the Tokyo airport.
In short, three decades of foreign legal aid and rule of law programs have helped nurture aspirations and provide tools for activists in the Chinese civil society to fight for justice. Jerry and many of you who are here today played an important role in making this possible. I second what Jerry said in his South China Morning Post article 3 days ago that such programs and the international pressure have helped pave the way for an easier transition once the fundamental changes take place. However, we must face up to the troubling reality that none of these efforts has stopped the Chinese government from engaging in extra-legal persecution of Gao Zhisheng, and mis-use of the law to persecute Liu Xiaobo and many others good citizens including Chen Guangcheng, Hu Jia, Huang Qi, Tan Zuoren (the list can go on), to punish them for having spoken up for or taken actions to protect the rights and interest of disadvantaged groups of fellow Chinese citizens.
As a testimony to Jerry’s integrity and contributions, I end my remark by reminding us that, over the years, Jerry has actually befriended some of those whose names I just mentioned, spoken up on their behalf, and, in some cases, acted as legal adviser to their lawyers. Thank you, Jerry!
(Remarks made at the Conference: “Half a Century of Asian Law: A Celebration of Prof. Jerome Cohen”, George Washington University School of Law, Feb. 19, 2010)
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