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

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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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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
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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.

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