William Alford Chair Lecture: Learn from the Past to Appreciate the Present

William Alford Chair Lecture: Learn from the Past to Appreciate the Present

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OK. Welcome. Welcome, everybody. Sorry for the delay. The turnout has been so good,
we needed to get more chairs– that kind of chair. So– [LAUGHTER] Today, we’re going to hear from
Bill Alford, his chair lecture, “Learn from the Past to
Appreciate the Present, That is What Makes
One a Teacher– Confucius, Cohens, and
Contemporary China.” And so I’m going to do
a brief introduction to this great occasion. It is an enormously
happy occasion. We have the opportunity,
this evening, to hear from and celebrate
a truly great human being, Professor William Alford, as
he assumes his new appointment. [INAUDIBLE] Hm? William what? [INAUDIBLE] Oh. [APPLAUSE] As he assumes his
new appointment as the Jerome A. and
Joan L. Cohen Professor of East Asian Legal Studies. In the process, we also get
to celebrate Jerry and Joan, so let’s give them a big hand. [APPLAUSE] They are longtime friends
of this institution, and namesakes of this
wonderful new chair. And I’m so honored that
both of you are here, and we will have some more words
to say about you in a moment. Before I tell you something
about the background of the chair, and the wonderful
people who made it possible, I want to take a moment to
welcome some special guests here tonight. We’re joined by several
of Bill’s family members, his wife [? Yuan ?] [? Yuan. ?] [APPLAUSE] His son, Daniel– [APPLAUSE] –who’s a 2L here at HLS. And his son Benji. [APPLAUSE] OK. I have three topics to cover
before we hear from Bill, and I’ll do them quickly. Because let’s face
it, we’re here to hear from Bill,
and not from me. So OK, the first one is the
background to the chair. I want to start by
thanking the people who made this chair possible. This chair came about
in a really great way. It came about as an organic
movement of former students and friends, about 75 of
them who came together to honor two extraordinary
people by endowing a professorship in their names. So let me mention
the committee that led the efforts to
establish, and the fund that led to the chair. So that’s Jeanette K. Chan,
the class of 1986, LLM. Jeanette, where are you? Jeanette is not here. OK. [LAUGHTER] Professor Alison Conner
from the class of 1973. Professor Connor. [APPLAUSE] David R. Halperin,
from the class of 1974. [APPLAUSE] And Dr. Michael J. Moser,
from the class of 1980. [APPLAUSE] Their time and
energy and generosity really made this evening,
and this chair, possible. I also want to acknowledge
the very generous donors who contributed to this
effort, especially David Halperin and Richard
M. Cashin, who made leadership gifts to this fund. So let’s give them a big hand. [APPLAUSE] I want to thank all of you
for creating this opportunity to honor and
recognize the Cohens, and the impact that they’ve had
on so many students and friends throughout their amazing lives. OK. The honorees. I just want to say a few
words about the honorees, about the Cohens. So I’ve got to say, I
did not get a chance to meet them until
last fall, when we held a symposium on campus
to celebrate the establishment of the Cohen Chair. And I’m not revealing
anything that the rest of you don’t know when I say
that when you meet them, you can see, right away,
what terrific human beings both Jerry and Joan are. And both of them have had such
amazing careers and impacts. Jerry was a law clerk
to Felix Frankfurter, class of ’06, and
Chief Justice Warren. He joined our faculty and
taught here for 17 years. He joined in 1964,
taught here for 17 years. While he was here, he founded
the East Asian Legal Studies program, the oldest and most
extensive program in the United States devoted to
the study of law and legal history of the nations
and peoples of East Asia, and their interaction
with the United States. Jerry is an expert
in Chinese law, a senior fellow
for Asian studies at the Council on
Foreign Relations, and counsel at the international
law firm of Paul, Weiss, Rifkind, Wharton and Garrison. He’s been a professor at
NYU Law School since 1990, and faculty director of
its US-Asia Law Institute. And he is truly
one of the founders of the modern field of Chinese
legal studies in the United States. Joan [? Lebold ?] Cohen is
an important photographer, art historian, and
curator, who specializes in Chinese art and film. She’s taught at the School
of the Museum of Fine Arts in Boston and, with Jerry,
is the author of China Today and Her Ancient Treasures. A graduate of Smith
College, she received the Smith College Outstanding
Alumna Award in 1990. Both of these people have
been pioneers and inspirations in their fields. And the chair that
Bill now occupies is a testament to the deep
impact that both of them have had on our
understanding of China, and our connection with China. So let’s please, once
again, give Jerry and Joan Cohen a great, big hand. [APPLAUSE] OK. And now on to Bill Alford. So I always enjoy
introducing chair lectures, and I say that as if this
is more than my second one. But– [APPLAUSE] But it’s still true. And today, it’s a
particular pleasure because Bill has been such
a tremendous colleague and friend. He’s a great scholar. He’s written scores of articles,
and several books on China– international affairs,
disability law. He’s been influential
in each of those fields. He has so deepened
our understanding of China’s legal system, and
helped lawyers in both systems understand each
other’s system of law. He’s been at Harvard
Law School since 1990. He’s a gifted teacher,
beloved not just by students and alums in the
US, but around the world. He’s an innovator, and he
brings students together to learn from one another. He co-teaches a reading
group with students at HLS and at Renmin, bringing them
together via video conference to discuss corporate social
responsibility, trade, human rights and
disability, development, and climate change. And you might think that these
achievements would be enough, and that we could now turn
to Bill, but there’s more. He’s also been the Vice
Dean of the Graduate Program in International Legal
Studies, a position he has held since 2002. He’s director of East Asian
Legal Studies at the East Asian legal studies program,
at HLS, and he’s also chair of the Harvard Law
School Project on Disability. This is an extraordinary
combination of roles, reflecting his deep expertise
in Chinese law, trade law, and development. His longstanding commitment
to furthering and advancing opportunities for
people with disabilities from around the world, and
his passion for excellence in legal education. Bill Alford brings the
world to Harvard Law School, and Harvard Law
School to the world. Working closely
with a superb staff, Bill has made our graduate
program so wonderful. There is no way to understate– no way to understate?– there
is no way to overstate– [LAUGHTER] A bit of a typo there. [LAUGHTER] There is no way to
overstate the soaring spirit, the great learning and
teaching, and the collegiality of the people who come
together from around the world to study in our LLM
and JD programs, and Bill Alford sets the
tone and makes it possible. And his commitment to
advancing opportunities for people with
disabilities has been felt at Harvard Law
School, around the country, and around the world. He is the founding chair of
the HLS Project on Disability, which works on a pro bono basis
on disability law and policy throughout the world. Working with Michael Stein
and others in that program, he has done a great deal of good
for a great number of people, here and throughout
the entire world. Bill also has a
longstanding association with Special Olympics
International, which elected him to
its board in 2005, and where he now serves as
the lead director and chair of its executive committee. And I would be remiss
if I didn’t say– and this is the
last thing, and then I’ll end on a personal note– in addition to his
many roles at HLS and with the Special
Olympics, Professor Alford is a lifelong hockey fan,
and is the faculty fellow for the Harvard men’s
ice hockey team. OK. So that’s an important
fact about Bill Alford. OK. So here’s the personal
note I want to end on. Our colleague Glenn
Cohen wrote me that Bill is best captured
by the Yiddish phrase that he’s a [YIDDISH],,
a great soul. And it’s really true. Bill Alford is a person of
kindness and generosity. He reflects decency
and selflessness. He’s been a friend
and mentor to me since I joined Harvard
Law School, but especially in the past 15 months
since I’ve been Dean. I will say– and Bill,
you can confirm this– that the very first thing I
did after it was announced that I would be Dean was I
made an appointment with Bill to beg him to continue
being my Vice Dean. His courage and his integrity,
and his just plain good sense are something that
everyone should aspire to. He’s a superb human being,
and he is a dear, dear friend. And so without further delay, I
give you the Jerome A. And Joan L. Cohen Professor of East Asian
Legal Studies, Bill Alford. [APPLAUSE] Thank you. Thank you. And we have– please, we
have some more chairs here. It pains me that our
graduate students are standing in the back,
and some colleagues. Please, come have a seat. So thank you, John, for such
a generous introduction, and for your friendship–
deep friendship over the last 15 years. I am incredibly grateful to
you, and to your predecessors, Martha Minow, Elena
Kagan, and Bob Clark, for all that you’ve
done to promote international legal studies
during my time at the law school. So thank you so much. The law school’s work would not
be possible without the support and vision of dear
friends, and I want to echo John’s
thanks in that regard. In particular, I want
to thank David Halperin for his foresight in thinking of
a chair to honor Joan and Jerry Cohen, for his generosity
in providing the lead gift, and then for joining with Alison
Connor, Jeanette Chan, and Mike Moser, as John
said, to inspire 75, 80 graduates and other
friends to found this chair. It’s just such a great occasion. It truly is a
blessing for me to be able to thank Jerry and Joan
for having done so much for so many people for so long. It’s just incredibly impressive. Joan has been a vital
conduit in the world of art between the United
States and the People’s Republic of China for some time, as
evidenced in the symposium that we did last fall that
included a terrific panel about her work. You can see, from this slide– it actually looks much better
in reality than on the slide– the beauty of her
photography, which has done so much to facilitate
cross-cultural understanding. And for decades, she has been
central in introducing ideas of contemporary art
from the West to China, and the Chinese avant
garde to the West. [LAUGHTER] And yes. Here we are. Yes. Here is Joan with [INAUDIBLE],,
a very famous Chinese artist. She brought [? I ?] [? Huawei ?]
and many other people into the world of the west. Now, how does one even
begin to thank Jerry? For me, he has been teacher,
mentor, friend, supporter, and now, co-author– if
this thing works again– on a book that we’ve done
together on Taiwan’s engagement of international human rights. We’ve done it with
[? Lau ?] Chong Fong, who is a Harvard Law
School SJD, who’s now a grand justice in Taiwan. Formerly, the dean of National
Taiwan University Law School. But most of all,
Jerry, you have been an extraordinary
inspiration to me, and I suspect to everybody
else in this room. With warmth, with
wisdom, with wit, you’ve defined an entire
field of academic endeavor. You’ve ingeniously
created programs intended to meld together
a very fractious region. You’ve long served as a
leading public intellectual in the United States, and
you are a singular voice of conscience about some of
the most crucial human rights issues of our time. As the Chinese saying has
it, [NON-ENGLISH SPEECH],, the fruits of your labors are
spread throughout the world. And here, we see
Jerry, in earlier days, beneath the visage
of Marx and Engels, spreading those fruits in China. Could I ask that
you all join me, please, in congratulating
Joan and Jerry, and thanking our friends
who made it possible? [APPLAUSE] And by the way, demonstrating
Jerry’s indefatigable energies, tomorrow at noontime, in
East Asian Legal Studies in Austin West,
Jerry has volunteered to give a talk
entitled “Law and Power in China and Its
Foreign Relations.” So I hope you will all come. One last set of
thanks before I begin the formal part of my talk. My dear wife, [? Yuan ?]
[? Yuan, ?] and my sons, Danny and Benji, who you
met a few moments ago, are a daily reminder to
me of what’s possible in Sino-American relations. [LAUGHTER] Good– good– the positive part. Yes. [LAUGHTER] And I surely would not
be standing here today but for the encouragement
of my parents five decades ago, at
a time when the idea of a career in Chinese
law seemed impossible. Interaction between the US and
the PRC seemed very remote. But my parents encouraged me to
follow my intellectual passion, and it’s the type of advice
that I give to my students. Trust your heart, follow
your intellectual passion. So onto substance. Now, 70 years ago, Roscoe
Pound published an article in the Harvard Law
Review entitled, “Comparative Law in History
as Bases for Chinese Law.” Well, much has changed
since its publication, within days of my birth. While we now know the
Pound was a complicated, and in some respects
an attractive figure, and while scholars today
would almost certainly take a more nuanced approach
toward both history and comparative
law, Pound’s essay remains a valuable
jumping-off point for thinking about Chinese
law, if not law more generally, and for taking note of
Harvard’s singular role therein. This afternoon, I intend
to demonstrate this first by situating Pound’s
observations, then by sketching some of the
opportunities and challenges that arise in turning to
history and comparative law as bases for understanding
Chinese legal development. And finally, by drawing on
three current projects of mine that I hope will offer
evidence of the insight that can be gleaned through
these two prisms. Now, Pound was, by no
means, the first person to appreciate the utility of
history in comparative law as bases for Chinese law. A half-century before his
article, China’s last dynasty, the Qing– and I have little
scorecards on the seats, so when we go to
all these names, you’ll know who
we’re talking about. A half-century before
Pound, China’s last dynasty launched an extremely ambitious
program of law reform, in the hope of ending
the detested system of extraterritoriality,
imposed by the West at the end of the
Opium War in 1842. Under extraterritoriality,
China’s foreign nationals accused of committing a
crime on Chinese soil would– foreign nationals accused
of committing a crime on Chinese soil would be
tried not by Chinese law, but by foreign
officials, according to the accused home nation
law, rather than Chinese law. So the Qing specifically
commissioned these two gentlemen,
[INAUDIBLE],, over here, a great scholar of classical
learning, and [INAUDIBLE] [? Fong, ?] the first Chinese
to become a barrister in the UK, and later, China’s
ambassador to the US, Spain, Mexico, and Peru. Shun was commissioned to go back
and chronicle China’s thousands of years’ old legal
history, and [? Wu ?] to glean the best that one
could glean from legal systems elsewhere in the world– history and comparative law. Now, there’s much that
was revealing in this. [? That Shun’s ?]
compendium illustrates that Chinese legal history was
far more sophisticated than had generally been
assumed, albeit quite different from
Western liberalism. For example, in
Chinese law treating insufficient filial
respect for one’s parents as virtually
tantamount to treason. We instill this with
our boys every day. [LAUGHTER] [? Wu’s ?] observations
on the broader world were also very intriguing,
as he concluded that the common laws
diffusion of responsibility, of authority, and the
challenge of applying precedent made it far less useful for
China than the civil law, with it’s rather more
concentrated and constrained vision of the judiciary. But in the end, the
dynasty’s exclusive focus on short-term,
instrumental uses of law undercut any effort
at meaningful reform. Now, Pound, who was a person
before he was a building, engaged China– [LAUGHTER] –in a manner no
less fascinating, as is borne out by research that
I have done with Professor Yu Xingzhong, who was my first
SJD student here at Harvard, and who is now the
Anthony and Lulu Wong Professor of Law at Cornell. He is here with us today. It is widely known
that, as a young man, Pound’s hopefulness for how
law could both take account of and serve society led him
to break away from formalism and embrace what became known
as sociological jurisprudence. And yet, by the 1930s,
worn down after two decades as Dean of Harvard Law School– and there’s a
warning here, John. [LAUGHTER] At odds, increasingly,
with his erstwhile friend, Felix Frankfurter–
for whom Jerry and Andy Kaufman clerked– and disillusioned with
the New Deal, Pound, at the invitation of
his Harvard SJD student, [? Yu ?] [? Xingzhong, ?]
turned to China– a China beset by war– as a respite from
Harvard Law School. [LAUGHTER] John, the invitation is open. Anyway, Pound’s time in
China, as legal advisor to the [NON-ENGLISH SPEECH]
government, rekindled his faith in law as
a powerful means to improve society. Now, to be sure, with the
communist victory in 1949, Pound again drew
disillusioned, leading him to join Senator Joseph
McCarthy in supporting the so-called China
lobby, which attacked the US State
Department for, quote, “losing China,” close quote. Pound’s 1948 article, however,
is above such battles. In a temperate manner, it
explores the implications of using history and comparative
law both as resources in building a legal
system and as lenses through which to
understand it once built, with particular attention
to the implications of each of these approaches. So, argues Pound, an
emphasis upon history enhances the likelihood that law
will be familiar to a nation’s citizenry, whereas greater
reliance on the comparative has the advantage of cementing
ties to the larger world. The article concludes with
a perhaps overly hopeful suggestion that China might
seek the best of both worlds by envisioning codes aligned
with global standards, while seeking to
interpret any ambiguities pursuant to local custom. You have to excuse me. I have a bit of a cold. [CLEARS THROAT] Now, the foregoing noted,
with the luxury of time, we now can appreciate,
on the one hand, that the history/comparative
law dynamic opens up into even deeper conceptual questions. And on the other hand, that each
component is more contestable than Pound suggested. Starting with the Opium War,
for more than 135 years, China underwent a series
of cataclysmic events, including the Taiping Rebellion,
and other 19th century strife that literally cost
10 million or more lives. The Boxer Uprising, decades
of warlord rule, World War II, the Chinese Civil War,
Mao’s great leap forward of the 1950s, with the
disastrous economic policies that led to the deaths of
millions– tens of millions through starvation, and
the chaos of the Cultural Revolution that tore society
apart before concluding in the mid-1970s. And here is a picture of the
Great Leap Forward, where Chairman Mao encouraged
people to build what were known as
backyard smelters, so they could disperse
steel production away from cities in case they
were attacked by the Russians or the Americans. A total disaster leading
to mass starvation. Throughout all this and beyond,
perhaps China’s greatest challenge has been how
to build institutions of governance, including law,
at once true to Chinese values– however those might
be construed– while also capable of
meeting global standards, and restoring China to
its perceived rightful place in the world. Endeavoring to understand
this about China also surfaces some hard
questions for us from outside. As we look at China, what
is it about our assumptions, the methodologies we employ,
and the very terminology we use that is a product
of our own history? And what may lay a claim to be
more truly universal, and why? History, of course,
is not unilinear. The presumption, given its
fullest voice in the 1990s by Francis Fukuyama of Stanford,
that history was at an end, converging toward an idealized
version of our institutions, itself was an
ahistorical conceit, as I suggested two decades ago,
and as events have borne out. How could it be that, with
profound technological, economic, demographic,
and sociological change, there would not be a
need for new approaches both within and beyond the law? And how could we possibly think
that all ideas worth having about institutional
design had already been articulated by
the late 20th century, and then chiefly in a
discrete part of the world? With the financial
crisis of 2008, and the subsequent disruption
wrought by social media, the more obvious iterations
of this way of thinking have faded. And yet it continues
to have influence in the baselines we employ, our
expectations, and much more. Now, if history is not
unilinear globally, nor is it without contestation
domestically, what constitutes Chinese values? Which are worthy
of preservation? Who gets to decide,
and on what basis? For example, ironically, the
Confucian scholar officials, who were the predominant
chroniclers of Chinese history prior to the 20th century,
downplay the importance of law, even as many artfully
employed it to stay in power. And the repeated invocation
of China’s Confucian past, by today’s leaders of the PRC
to buttress their legitimacy, hardly definitively resolves
questions about its meaning. Now, to observe all this is
not to denigrate history, quite to the contrary. In the words of the
intellects, [INAUDIBLE],, learn from the past to
appreciate the present. That is what makes
one a teacher. It is for good reason
that, in my 1L class– 85 students– entitled “Why Law? Lessons from China?” we spend the first 1/3 of the
semester enmeshed in history. Not only does it
provide both the context for today’s challenges and,
at times, very terminology in which they’re being
debated, but it also enhances our credibility
to critique the present, evidencing that once
comments are built on a foundation of
knowledge of and respect for Chinese civilization, and
hence not idle or ill-informed. Now, as we acknowledge the
complexity and contestability of history, we also need to
bring the same sharp focus to bear on comparative law. Why are we choosing
to look at the law of any particular nation? Is it in the words of Justices
[? Breyer ?] and Roberts, simply picking one’s friends out
of a crowd, and on what basis? With how much attention
to practice versus ideals, something Jerry
constantly reminds us of. And with what understanding
of how ideas about law are transplanted from
one society to another. Is it possible, for example,
for China, or any other nation, to utilize elements
of foreign law, expecting to produce the
same results achieved in the originating society
without also absorbing the values, institutions,
and practices that enabled that
law to function as it did in the first society? But surely, we cannot be
saying that borrowing anything requires embracing everything. As with history, comparison is
crucial so that we, in the US, can appreciate that which may
be distinctively Chinese, rather than, for instance, shared
by other civil law countries, or other communist nations. And so that we can
appreciate the ways in which that we think to be natural
may not necessarily be. I’m reminded of this
by a set of experiences I had with [INAUDIBLE],,
who was the first PRC Ambassador to the US. Here he is with then
Vice President Mondale. At that time, China
did not have a lot of experience in dealing
with foreign lawyers. And so I ended up
doing a fair amount of pro bono work for Ambassador
[? Chai ?] and the embassy. To thank me,
Ambassador [? Chai ?] invited me several times
to the embassy for dinner. And in the course
of one of those, I asked him what was hardest to
fathom about the United States. He said, that’s easy. Your system of
government and baseball, the latter of which he
intimated was extremely boring, since nothing seemed
ever to happen. Leading me, as
someone who assumed that anybody who saw a baseball
game live would be smitten, to bring him to a
Baltimore Orioles baseball game in which pitching legend
Scott McGregor shut out the Yankees 1 to 0, meaning,
essentially, nothing happened at all,
convincing the ambassador that he was totally right. [LAUGHTER] Now, one of the many things that
I’ve learned from Jerry Cohen is to use anecdotes to
illustrate larger points. So I hope you’ll indulge me
to slip in one more here that may show how that which we
may assume to be natural is not necessarily
widely shared. More than three decades ago,
I served as a co-director of the first academic program
in a university in the PRC on American law. [? Sharon ?]
[? Holm, ?] who is here with us today, also worked with
me as a co-director. Here I am teaching one of
our American law teaching techniques in
China, 30 years ago. Anyway, they thought
we were strange and we wanted to prove
we really were, yes. The dean of a leading
Chinese law school, who I met through this work
while visiting in the US soon thereafter,
asked, very anxiously, if he could meet privately
because he said he had a deeply personal question. I said, of course. And I wondered, as he became
more and more anxious, what was this going to be about? Was it going to be
about salary or religion or political
affiliation or intimacy? Well, I finally got him
alone, behind closed doors, at which time he
said, do you really believe in the separation
of powers business? Or is it simply something
that your government has instructed you to say to
all Chinese when you meet them? [LAUGHTER] I wasn’t quite anticipating
that as the question. Anyway, I will
resist the urge now to tell you more anecdotes so I
can get down to more substance. But during the Q&A,
if you’d like to know, I could tell you about
taking Ambassador [? Chai ?] on his first visit to
the American South, or discussing the
movie Waterloo Bridge with then Chinese
president Jiang Zemin, or accompanying Arnold
Schwarzenegger to China in his pre-gubernatorial days. But that for another time. So turning to the
third part of my talk, I will endeavor to depict
how the prisons of history and comparative law illuminate
our understanding of China today by drawing on examples
from my current work concerning Chinese legal developments
at home, China in the world, and our engagement with China. So professor [? Jiang ?] Ping,
this extraordinary gentleman here, sitting next to a good
friend of ours named [? Hue ?] Fong– Professor [? Jiang ?] Ping is
the focus of one of my current research projects, for his life
provides a compelling window through which to understand
the roles of history and comparative law with respect
to both the soaring [? hoped ?] for, and severe disappointment
in, China’s post-cultural revolution project
of law reform, perhaps the largest such
undertaking in human history. A dear friend of Jerry’s,
Professor Jiang, like Jerry, was born in 1930, has been
[? astride ?] his field with a singular
courage, and remains a generous mentor
adored by legions of students around the world. Their immense talent–
both Jiang and Jerry– was recognized in
the early 1950s, with Jerry selected for one of
18 US Supreme Court clerkships. He fulfilled two of
those, as John said. And Professor Jiang chosen as
one of only 12 Chinese students to study law in the USSR. You definitely got the better
part of that bargain, Jerry. [LAUGHTER] Here’s Professor
Jiang as a young man. Each soon assumed a
prestigious academic post, but then their paths diverged. Attacked for his
commitment to law during the anti-rightist
movement of the 1950s, Jiang was sent to do hard
labor in the countryside, leading to Jiang and his
wife, who had just married, divorcing to save
her, and to his losing a leg in a horrific
train accident. Undaunted by this, he returned,
in 1960, to his university. But during the Cultural
Revolution a few years later, he was struggled against,
sent for re-education to the so-called
[NON-ENGLISH SPEECH],, the May 7th Cadre School,
and then assigned for years to teach middle school. With [INAUDIBLE] call,
in 1978, for China to rebuild its legal system,
Jiang resumed his position at the Chinese University
of Law and Politics, rising to his
presidency in 1988. Only a year later to be
removed from that post for publicly
supporting his students during the tragic
events of June 4, 1989, in Tiananmen Square, in
which hundreds of students were killed. Before, and especially
since, that time, Jiang has played a
uniquely prominent role in China’s legal development. On the one hand, being
centrally involved the drafting of a national
framework of private law, and on the other hand, bringing
his singular moral stature to bear in, quote,
unquote, “crying out against oppression.” To use a phrase which Jiang has
employed in titles of two books of his recently, that is taken
from the great 20th century Chinese author
and social critic, [? Lu ?] [? Shun, ?]
who is widely understood as a
highly potent voice of speaking truth to power. Now, it is difficult
to do justice to Professor Jiang
in short compass, but it’s vital that
we eschew the tendency of many foreign observers to
see all Chinese in binary terms, as either being
essentially nativist or championing Western values. In effect, having to
choose between history and comparative law. Or for that matter,
fully endorsing or entirely repudiating
the Communist Party. Jiang and, indeed, several
other of China’s more interesting and impressive
legal intellectuals are much more
complicated individuals, motivated simultaneously
by deep pride in their Chinese heritage,
and an appreciation of China’s journey. But also by commitment
to ideals of justice, and ideas about its attainment
that are not necessarily [? cabined ?] by borders. Jiang has been long immersed in
the comparative from his days as a student of
Russian and Roman law to his founding of a
comparative law institute at his university
that also included Japanese law and the common law,
to his role as a key advisor in the drafting of
China’s general principles of the civil law, in the course
of which he drew extensively on the examples of many
other jurisdictions, to his call for China
to join the WTO. At several points, he urged
that China modify its laws consistent with international
standards– that’s his phrase– in effect, endorsing a
use of comparative law. And yet, throughout this,
Jiang has described himself as a nationalist, and
cautioned against, quote, “wholesale westernization,”
close quote, liberalization, and too ready an
adoption of foreign ways. This is borne out
in his rhetoric from the title of
his autobiography, roughly translated
as Vicissitudes, Recounting My 80 Years, taken
from one of the many poems he self-consciously, and
with great eloquence, wrote in the style
of the [? Song ?] dynasty of 1,000 years before. And it is evidenced also in his
use of plotlines from Beijing operas to make key
points, and his repeated invocation of Lucian,
knowing that to do so is to call the
party state to task. But there is far more to
this than just his rhetoric. Indeed, only by recognizing
how Jiang has taken account of history– both his nation’s
history and his own personal history, together with his
knowledge from comparative law of alternatives– can one reconcile his
heartfelt appreciation of how far Chinese law has
come during his lifetime, with his righteous
anger regarding how far it has yet to go. We see this vividly
in the speech he made on his 80th birthday,
entitled “China’s Rule of Law is in Full Retreat.” In it, Jiang was
clear to credit what he termed an historically
unprecedented growth in consciousness
about private rights, as well as the
possibilities that China’s administrative litigation
law could provide citizens with opportunities
for empowerment. But in that same
speech, he was even more forceful in issuing one of
the few public denunciations in China of the party
state for imprisoning Liu Xiaobo, the Nobel
Prize Peace Laureate, who would die a prisoner in 2017. And more broadly, in
calling the party state out. In John’s words,
declaring, quote, “if the political
system does not reform, then nothing else can reform. If the political
system does not reform, then your rule of law”– meaning here, the party– “your rule of law, your judicial
reform, your anything else will not be much of an
achievement,” close quote. In effect, Jiang was–
to use his words– seeking to position himself
between those inside and outside the lines
drawn by the party state, [? of ?] neither acritically
serving it, nor only imagining a future without
it, but instead, drawing on history
and comparative law for the challenging,
if unglamorous, work of thoroughgoing
reform from within. Turning our attention
to China in the world, history and comparative
law also are illuminating, as I have learned in studying
the China-Africa relationship with [INAUDIBLE] the help of
two of our amazing doctoral students, [INAUDIBLE],,
from China, and [? Kabram ?] [? Tuel ?]
[? Aberhend, ?] from Eritrea, who also did a degree in China. Just as my work on Jiang Ping
has been enriched through the assistance of the United
States best Chinese law librarian, Dr.
[? Jong ?] [? Nam ?] Ji, and our recent LLM
graduate, Ken [? Yang. ?] A privilege– a great privilege
of teaching at Harvard Law School is the opportunity to
work with such talented people, which– forgive me for
digressing for a minute– allows me to mention that
because of the school’s extraordinary commitment
to getting the best students from
across the world, we are fortunate to have far
more graduate students from sub-Saharan Africa than
the remaining Ivy League Law Schools put together, and
some 125 students from the PRC across our three
degree programs. Admitted, as is the case for
all Harvard Law School students, without regard to their
financial circumstances. And then, if their
circumstances truly warrant it, provided with the financial
assistance needed to attend. So thank you, David Halperin
and Julia and Stuart Bloch, and Joe [? Manganiello ?]
and other friends who’ve made this possible. Now back to China-Africa. Notwithstanding the
continent’s immense diversity, and the myriad forms
of Chinese engagement, the prevailing image here
also is a binary one. Typically painted in
the PRC in glowing hues of brotherly generosity,
but by Western media with an unremittingly dark
palette, as neo-colonial. The binary is
unfortunate, for it fails to capture key
dimensions of the relationship that history and comparative
law help illuminate, including African agency, and Chinese
adaptation, over time, to being in this new setting. Owing to history, China’s
involvement in Africa starts with many advantages
relative to the West, with China not having engaged
in slavery, colonialism, proselytizing, or the
condescension of the 1990s Washington Consensus approach. While, on the other hand,
having been an early supporter of African
independence and development. And here, by way of example,
is a picture of the famous [INAUDIBLE] railroad,
at the time, the largest Chinese foreign
aid project in its history– a project that Western countries
said could not be built, was not feasible. But under Chairman Mao’s
direction, it happened. Now, this history
noted, however, Chinese companies are
now having to deal with very unfamiliar forces
as they engage in Africa, including, in several
instances, electoral politics and opposition parties,
autonomous labor unions, critical media, vocal
civil society, and a judiciary independent of the ruling party. The process of engaging this
different world, including reconciling the competing
economic and political objectives that many
Chinese entities have, is a fascinating,
if fitful, one, with law, a major stage on
which this is all playing out. This is evident in the
scholarship of our SJD graduate, Professor
[INAUDIBLE],, of Arkansas, who’s shown that China’s foreign
direct investment agreements, over time, have grown ever
more investor-friendly, increasingly resembling
those of the West– an important finding possible
only through immersion in history and comparative law. My own research, some of
it done with our colleague Ruth [? Okenege, ?]
who is here today– who is yet another Harvard SJD– is focusing on Chinese
involvement in parts of Africa with relatively strong
legal institutions. And with that, the need
for Chinese companies both to engage with actors
able to disrupt their plans, and also to defend
themselves before courts experienced in curbing
executive authority, at least relative to China. We can see this,
intriguingly, in Kenya, home to one of Africa’s stronger
judiciaries, as evidence last year when the
Supreme Court nullified– invalidated a
presidential election. In 2013, China embarked on the
construction of the so-called Standard Gauge Railway,
the first phase of which, at a cost of $3.4 billion– 90% of it borrowed from China– was the largest infrastructure
project in Kenya’s history. Not withstanding support from
President Uhuru Kenyatta, the project has faced repeated
challenges, many of them fought out through the law. Activists have staged
protests, labor has struck, citizens aggrieved over
inadequate compensation for their land, noise
pollution, water contamination, intrusion into park
lands, and much more, have embarked on litigation. And Kenya’s National
Environmental tribunal, at one point, even ordered
construction stopped. The China Road and
Bridge Corporation, which is the lead
Chinese company in this, has fought back, at
times making arguments having more salience back
in China than in Kenya. As, for example,
when in 2015, it sought to defeat an application
in the environmental and land court of Nairobi for a permanent
injunction on work being done that was damaging many
homes by arguing, quote, “the public interest
to be served in the expeditious
completion of the railway surely should supersede the
plaintiff’s private interests,” close quote. An argument that may have
worked at times in China, but did not work in Kenya. Now, to be sure, with the strong
support of President Kenyatta, the first phase of the
railroad is now up and running. But the experience of
this kind of litigation and similar challenges
of, if you will, learning comparative
law the hard way, has led the railroad’s principal
funder, the China Exim Bank, to have second thoughts about
supporting its next phase, and is changing the history of
China in Africa as we speak. Now, with apologies
for immodesty, my third and final
focus concerns the work of our Harvard Law
School Project on Disability. The amazing Michael Stein and
I founded HPOD, as we call it, in 2004 with two goals in mind. One was to assist the UN as
it drafted the Convention on the Rights of Persons with
Disabilities, while goal two is to be a global resource for
disability law and policy, all on a pro bono basis. Our philosophy has been to bring
the fruits of our scholarship and teaching to bear on
our public interest work. And in turn, for
that work to inform our teaching and scholarship. To date, we have
worked extensively in more than a dozen
countries, while also advising in several
others, and continuing to do our scholarly writing. What we do varies
according to the setting, as we deem it critical that our
approach be informed by history and context, and take
serious account of the views of local partners,
even as we draw on comparison– comparative law
to provide a range of ideas. Our most extensive work
so far has been in China, and it bears out the importance
of both comparative law and history as bases
for Chinese law. As concerns history,
when I first started to work on
disability in China two decades ago through
my volunteer efforts with Special Olympics
that John mentioned– very proud and
delighted to be involved with that organization. When I first started
this two decades ago, several former
students and friends kindly offered assistance. But almost to a person,
whether Chinese or foreign, most urged me to
temper my expectations, saying that Chinese
attitudes toward disability had always been negative,
and almost certainly would always still be
negative in the future. I appreciated their support,
but I was skeptical as to whether so great
a civilization could, for so long, have had attitudes
appreciably worse than those of other nations. After all, this is a
very challenging area in the history, really,
of all countries. In any event, it seemed to me
that if I took their advice to heart, it would be
a counsel of despair that would be self-fulfilling. Accordingly, among
other things, that I set out to explore the history
of disability in China. And after a good
deal of research, I ascertained that there are
at least five strong threads in philosophy, state policy,
law, social practice, and self-help by persons
with disabilities coursing throughout the Chinese past,
suggestive of more benevolence than has been assumed. And here, just to
illustrate the point, a picture of [INAUDIBLE],,
a Song dynasty official, who, among many other
things, developed a highly sophisticated
trust instrument to lock up some of the proceeds
of products of family land so that they could fuel
stipends for persons in the clan with disabilities thereafter. Now, to note this– to
note these five strands is not to minimize the
horrendous conditions that form the basis for the
conventional wisdom, nor naively to think that
having stumbled across these, we have a full foundation for
contemporary legal development. But it, in the very
positive reception that I’ve gotten
from this research, is to lend both conceptual
and practical support to the idea of China
developing its own approach to fostering the dignity of
persons with disabilities. For a key lesson of history
is that projects that are only foreign in conception
are far less likely to generate
the kind of support they need to be sustainable. Our work on comparative
law has also been a factor in stimulating
thinking about what might constitute a Chinese
approach to disability law and policy. In 2007, after
years of work, HPOD, together with Renmin University
of China and the China Disabled Persons Federation, staged the
first conference in PRC history on disability rights. For it, we brought experts
all having direct experience with disability from
a range of countries, each to discuss the development
of their own nation’s approach– its strengths and
weaknesses, as well. Michael and I thought this was
preferable to the typical such conference that almost always
would choose one country– typically, the US– and thereby wittingly or
not, convey the impression that there was but one
benchmark toward which China might strive. We thought that, by
laying out different types of institutional design, all
intending to reach the shared goal of fostering the dignity
of persons with disabilities, and by being quite candid
about historical contingencies, underlying assumptions
and tradeoffs, our endeavor would have the
potential to be far more stimulating and empowering. In effect, suggesting that there
was no single path in inviting our Chinese colleagues
to generate an approach attentive to their own
circumstances in which they could take pride of ownership. That conference
led to my editing with two Chinese colleagues of
the first book in PRC history on disability rights. And while one would not
want to underestimate the vast challenges
that remain– that people with
disabilities face in China– we are thrilled by the ways in
which our Harvard project, ably directed in China
by Dr. [INAUDIBLE],, has had a small role to
play in Renmin University’s assumption of national
leadership in China in this area. Adroitly advancing
regulatory innovations, particularly with
regard to education, establishing China’s first
university-based program on disability law, developing
its first teaching materials in treatise in this area,
pioneering the admissions of students with a disability
to law school in China, and then enabling students
from our two schools– Harvard and Renmin–
with a disability to go to the other school. Including disability as a topic,
and a course that my friend Alonzo Emory and I teach
together with Professor [INAUDIBLE],, of
Renmin University, another Harvard SJD, that
electronically brings together– as John
mentioned earlier– Harvard and Renmin
students to deal with major global challenges. Creating opportunities for
PRC scholars and civil society members to engage one another,
developing a Chinese language introduction to
the UN Convention on the Rights of Persons
with Disabilities written for persons with
an intellectual disability. Producing the first
Chinese language manual on corporate social
responsibility in this area, and working with a group
of sight-impaired Chinese journalists to produce
a series of profiles of the accomplishments
of persons with disabilities, but
also the ongoing challenges they face, in an effort to
try to chip away at stigma. Now, as I hope I’ve
demonstrated this afternoon, Roscoe Pound was onto
something seven decades ago, when he spoke of history
and comparative law as bases for Chinese law. Jerry and Joan, in the
worlds of law and art, respectively, have
wonderfully exemplified how, through understanding
history and scrupulous comparison, we might all
enrich our understanding of one another. And I hope you’ve
also seen today the ways in which
they’ve inspired me to think expansively
across disciplines, while being mindful throughout
of the public interest, as they have been. I thank them both, from
the bottom of my heart, for their enduring inspiration
and deep friendship. David Halperin, Allison
Connor, and other friends, for your vision and support
in thinking of this chair. And all of you for
hearing me out. So thank you very much. I’d be glad to take questions. [APPLAUSE] Thank you. I think we– John, we have
15 minutes for questions? Great. So don’t be shy. Professor [? Fallon. ?] Bill, it was just
a wonderful talk. Thank you so much. And I also want to say,
[INAUDIBLE] so much fun. And in that spirit, I want to
see [INAUDIBLE] more [? fun. ?] That’s my question. So you say that we can
understand China’s present better by looking at its
history, and comparative law. And so I wonder [INAUDIBLE]
a little bit into the future. So when you talk specifically
about disability law, [? have you ?]
imagined that there may be a rich Chinese,
distinctive legal future [INAUDIBLE] with
respect to these issues. What about other issues
that people around the world would care about,
including, for example, what are the prospects, what
are we [INAUDIBLE] to the future through history and
comparative law. [INAUDIBLE] China will
be able [INAUDIBLE] a robust economic power with
a number of capitalists, but only quasi-capitalist
features, while not recognizing the human rights that
many people in the West do associate with
advanced economies, but also, in some sense,
with advanced societies. Is there a possible
distinctive path for China there that we can better
understand both [INAUDIBLE]?? I have a hard time
imagining how that could be. Yeah. Thanks, [? Dave. ?] It’s a great
privilege to be your colleague, and get good, hard, thoughtful
questions like that. So I think it’s possible to
imagine, in China, crafting– in various areas–
an approach that is not dismissive of
core human rights, but that adapts them more
to a Chinese setting. So I mentioned–
this is not directly applicable to your question,
but the historically inadequate filial respect for
one’s family was one of the 10 heinous offenses. Including, by the way,
inadequate respect to one’s teachers, as I often
remind my students. [LAUGHTER] Right. But I think a residue of
that, or a dimension of that, in Chinese society is
arguably a little more concern about the impact
of one’s actions on one’s broader community. Now, obviously, that can
impede individual rights. And obviously, as China becomes
ever more materialistic, that is eroding. But I think it is possible,
in several respects, to have [? imagined ?]
Chinese institutions that are more attentive to human
rights than the present day. But also, speaking more
to the impact of one’s individual actions on society,
what would be an example? China focuses more on so-called
alternative dispute resolution. I don’t want to reify that. There were times, under
the previous Chief Justice of the Chinese
People’s Supreme Court, when it went too far. When people were denied
basic procedural rights that were provided to them
under law but an idea that more things
than we might imagine could be resolved in
a still mindful manner of people’s integrity than
just through litigation. In the disability area, for
example, the US actually– even relative to many
other countries– a little bit of an outlier with our
emphasis on individual rights. And while there are many
attractive features to that, it also, ultimately, does
repose with the individual the necessity to vindicate
his or her rights– to perceive the problem,
to bring the grievance, to pursue the case– which may not be practical. It may be very nice as a
theoretical matter, but as a practical matter, may not
be available to everyone. So one area might be
in dispute resolution. Another– China’s
environment is, right now, rather appalling. But China is putting more money
and effort into environmental– solar power, wind power,
trying to develop other ways to remediate the
grievous harm it’s caused its citizens
and its environment. So I don’t know the
shape that it will take. I view myself more as a
historian than prognosticating about the future. But I think it’s
important to keep open the possibility
that there could be different forms of
institutional design without being apologetic for
rights abuses that may occur. Professor Cohen. [LAUGHTER] This is a great– oh, great. Wonderful. This is obviously a
great, moving occasion for Joan and me. And we thank David
[? Manning, ?] and we thank Bill
Alford, and [INAUDIBLE],, whom I take pride in, she
was also one of my students. [LAUGHTER] So consistent with
the theme, I wanted to ask, if you were
asked by Xi Jinping to advise him to improve
his justifications for the invocation
of Chinese history in the course of rejecting
Western universal values relating to the
legal system, what would you select as
themes and material that he might find persuasive? As we know, he often
invokes Confucianism. Occasionally, he even
mentions legalism, although his advisors tell
him that’s not too smart. [LAUGHTER] Because the legalists
were notorious for their use of dictatorial
law to impose leadership goals upon their people. He’s a Confucianist
in principle, and is now building museums
to his father, the late Xi Zhongxun. But Xi Zhongxun had an
interesting history. He offended Chairman Mao. As a result, he spent 16 years
in the Maoist wilderness, and came back after Mao’s death. And in the early ’80s,
distilling the wisdom he had learned from his experience
in the Communist movement, he said, communism in China will
never succeed in achieving its goals unless it learned to
tolerate [NON-ENGLISH SPEECH]—- [LAUGHTER] –differences in ideas. The leadership and the
people have both to be allowed freedom of expression. And despite his passion
for Confucianism, which includes filial
piety, as Bill mentioned, Xi Jinping is
desperately violating the wisdom of his father. So how should he deal with
that problem specifically? [LAUGHTER] [APPLAUSE] Thank you, Jerry. Yes. I’ve met Xi Jinping
twice, very superficially. He shook my hand
once and said, I know all about you,
Professor Alford. I think this is because my
wife’s father knows him, not because he has some file on me. But anyway, I think the first
thing I might say is that allowing room for
[NON-ENGLISH SPEECH],, for different opinions,
actually is very important, and does have a foundation
in the Chinese past. So rights-oriented lawyers,
as they’re called– human rights lawyers, or lawyers
who are strenuous defense lawyers in China,
[NON-ENGLISH SPEECH] lawyers– have had a very hard
time under Xi Jinping. I would counsel, whether it’s
partly out of the Chinese past or partly my own
normative preferences, that far from being an
enemy, these people actually are doing a favor to the
state by bringing concerns within the legal system, rather
than simply to the streets. China has a long
tradition, actually, of what was known as
the [? censorate– ?] not censoring as
in censoring words. But officials who are
outside the traditional line bureaucracy, whose job
was to [? remonstrate ?] with the emperor or other
high-level officials, and tell them the naked truth,
whether they wanted to hear it or not. Now, it wasn’t a profession
that had a longevity to it for many individuals,
unfortunately. But there is this tradition,
and I guess I would say– I would think, as a category,
that the [NON-ENGLISH SPEECH] lawyers are the contemporary
incarnation of that. And so he could be truer
to Confucian principles were he more welcoming, more
tolerant of people like that. That would certainly
be a first step. What else? Xi Jinping is– there are
other regards in which it’s important, I think, not to be
locked into what the past was. So I think with regard to issues
of gender equality, efforts– although still
insufficient in China– to create more possibility
there is very important. I think another area of
looking back into the past might have to do with the state
economic business relationship. So yes, there is
always a tight linkage between much of
commercial enterprise and the state in
the Chinese past. But one might say, in the
last half dozen years, in particular, it’s
grown much tighter, and that it might be more
advantageous for China in the longer run to
allow more autonomy. Not only state-owned
enterprises, but even nominally private
enterprises to actually have more independence. I think we have time
for one more question, and then we have a
little thing to unveil. OK. And of course, during
the social hour, I’m glad to answer
questions, chat with people, so forth and so on. Yes. How do you [? find ?]
the differences between the legal systems
of the PRC and the ROC, seeing as they share a
similar rooted history? And the second part of
that question then becomes, is it possible to see Taiwan’s
legal system being a model, seeing as they have
a better human rights record than their neighbor
across the [? strait? ?] So I think Taiwan– thank you. That’s a very good question. Taiwan has been able to form
a fairly successful hybrid of some dimensions
of the Chinese past and some dimensions
borrowed from abroad. At present, there are three
Harvard Law School SJDs amongst the Grand Justices. They were central in
the same sex decision. So I think Taiwan is an
example, in some ways, and has been in the past. So when I mentioned,
before, the general principles of the
civil law in China– and one could look at
several other areas of law– there was a borrowing– a
reference to the law of Taiwan, not publicly announced. Not extolled in headlines
in the newspaper. But the drafters of
major laws in China. When I did work,
years ago, on a book I wrote about
intellectual property law in China, to steal a book
is an elegant offense. Take it from a Chinese saying. One of the examples most used– although not, again,
publicly celebrated– was that of Taiwan. So I think it does provide
a valuable laboratory. Obviously, with 60 times as
many people, and a very– a tremendous amount of
diversity, too, by the way, in the PRC, you can’t
literally copy one for one. But I think it’s an
instructive set of examples. Let’s give Professor
Alford a big hand. [APPLAUSE] Now, as part of this ceremony,
we give a tangible gift, and we carefully wrap it so
that Professor Alford can not guess what it is. [LAUGHTER] Would you like to come
and unveil your gift? Oh, my gosh. I can hardly imagine. Yes. [? Yuan ?] [? Yuan, ?]
you want to come and– Yeah, why not? Sure. All right. Any time. Ready? Whoa. It’s a chair. [APPLAUSE] Everybody, let’s please
join for a reception. And we can talk about Arnold
Schwarzenegger in China, or– [LAUGHTER] [INAUDIBLE] things. Thank you. Thank you very much. [APPLAUSE]

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