Home > Analysis, aside > Opinion: Last Word by Melektaus on the Rule of Law

Opinion: Last Word by Melektaus on the Rule of Law

I’m getting sick of this “debate” on the rule of law (or laws in general). It’s a recurring theme marred in confusion. So I will try to make this as simple as possible. Just let this “debate” die in this thread because it is distracting, boring and I’m just goddamn sick of it.

I have always defined what I meant by what I think this phrase means. It may be different from how others have used it but that’s OK, because there are many definitions that have been used throughout time. But if you, if you want to criticize my definition, you should at least point to where exactly you disagree (offer reasons, evidence, and a alternative framework and support that framework with reasons and evidence so forth to show that it is better). It’s insincere and confused to talk in such general and mucky way replete with post modern jargon thinking that is any kind of criticism when it is just double talk.

Anyway, as I have said many times before in posts and comments, what I understand to be the rule of law is simply

“The desire or value that laws should be as non arbitrary, the least unfair, the least unbiased, the most transparent and the most beneficial for all in society as possible”

We will call this definition “GROL” (or the General Rule of Law) because it is what I believe to be what underlies (the bare bones if you will) much of the common notions of this concept without the disputed details.

Now I ask what exactly do you disagree with this definition? If you say that you’ve got no problem with my definition, then you would have to take back every criticism directed at my posts and comments of the rule of law because it is just this definition that I have been using (which I made explicit many times and am getting sick of stating it over and over). In essence, you would be tacitly admitting that you have been attacking a strawman argument all along.

If you say that you don’t think that GROL is a good idea for society then you need to offer specific criticisms. What exactly in that definition do you disagree with? What reasons and evidence supports your disagreements? What is your proposed alternative framework and why is it better? Since no one has made a specific criticism in this fashion, I am forced to suspect that there is a confusion on behalf of the criticizers. They are conflating different things with my usage of the term.  In fact, I’m convinced that many of you don’t have any coherent and clear notions in your mind when you criticize the rule of law perhaps criticizing no one at all other than an imaginary target.

So you either agree that GROL is a plausible idea and ought to be implemented for society (in which case you’d also be admitting that you had misplaced your previous criticisms) or you criticize it (and not some fuzzy, obfuscated version that is not mine nor anyone else’s as well I suspect).

I’ve heard many of you say that the rule of law is this and that (such as that it is complex, subject to different norms, only an ideal etc). I don’t see how any of this is relevant to my notion. First of all, it had better be complex. A simple legal system is one that almost certainly is deficient because humans and human society are so complex. It had better account for different norms too, obviously. And obviously it is an ideal and obviously it is also a tool. I don’t see these as criticisms, just stating the obvious. A criticism would to be show exactly what it is that is wrong about it and then proceed to offer a plausible alternative to fair, unbiased, non arbitrary laws. None have given any such thing for the foreseeable future.

Maybe one day the world would be full of saints and sages and there’d be no need for any kind of laws (punitive laws anyway) and thus there would be no rule of law (again, in at least a punitive sense of the law). But the question is not some hypothetical future, the question that human beings must grapple with and what China and the world must grapple with is how to live life now.

If you wish to criticize someone’s else’s definition, then criticize them and be just as specific. What specifically about their definition do you disagree, etc and why.

This is about as dumbed-down as I can make of this. If you are still are confused about the debate then I will never be of help whatever I say.

 

__________________________________________________

 

This is my last post on HH.  I had been thinking about leaving for a long time due to what I see as a clear ideological bent of many posters and a sensitivity to criticism. There is just too much difference of values and opinion between us and it’s time to part ways. I don’t think my values are reflective of much of yours (both other editors and commenters). I want to make it very clear that I am not associated with any of the other posters. My views are my own. I will start my own blog.

Categories: Analysis, aside Tags:
  1. Zack
    July 23rd, 2013 at 02:53 | #1

    Please don’t leave, Melektaus, i always look forward to your posts and threads. To me, the nitpicking over ‘rule of law’ and ‘rule by law’ seem overdone and needlessly academic.

    Now of course i don’t expect everyone here to be care bears and happy go lucky friends with each other, we’re much too different and individualistic but Melektaus, if you wish to leave, please don’t stop writing. In fact, start a blog and i’ll be sure to follow it!

  2. July 23rd, 2013 at 03:42 | #2

    I will link to a post after I get my blog up. One of the other editors informed me that he had taken away my posting privileges a few days ago but allowed me to post this last time and maybe for the next week. I’ve been losing interest in the blog as you can see, many of the posts have been sub-par in quality. Thanks for your support and I look forward to speaking with many of you about sino-western relations at some other place.

  3. July 23rd, 2013 at 05:01 | #3

    “The desire or value that laws should be as non arbitrary, the least unfair, the least unbiased, the most transparent and the most beneficial for all in society as possible”

    This is the first time I’ve seen melektaus put it in those terms…. I certain haven’t written any of my comments with those words in mind. And people should definitely not read any of my comments as specific response to melektaus’s conception of “rule of law.”

    In any case, does this actually say much?

    I can just as much make this assertion for any political beliefs / ideology that has come and go, communism, democracy, any of various theocracy, etc., depending on your personal bend:

    “The desire or value that governance should be as non arbitrary, the least unfair, the least unbiased, the most transparent and the most beneficial for all in society as possible”

    Rule of law, to be truthful, is not a clearly defined notion. But here are what others have said.

    United Nations:

    a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

    ABA World Justice Project:

    The World Justice Project has proposed a working definition of the rule of law that
    comprises four principles:
    1. A system of self-government in which all persons, including the government, are accountable under the law
    2. A system based on fair, publicized, broadly understood and stable laws
    3. A fair, robust, and accessible legal process in which rights and responsibilities based in law are evenly enforced
    4. Diverse, competent, and independent lawyers and judges

    From the academic perspective, it might be noted:

    The Rule of Law is a historic ideal, and appeals to the Rule of Law remain rhetorically powerful. Yet the precise meaning of the Rule of Law is perhaps less clear than ever before. Many invocations are entirely conclusory, and some appear mutually inconsistent.

    To clarify the values that are invoked by diverse and sometimes conflicting appeals to the Rule of Law, Professor Fallon develops four ideal types which reflect the unstated assumptions that underlie familiar Rule-of-Law-based arguments. But the ideal types which tend to identify the satisfaction of particular criteria as either necessary or sufficient for the Rule of Law, are also incomplete. More than is usually appreciated, the Rule of Law needs to be understood as a concept of multiple, complexly interwoven strands.

    One then might try to define it broadly as:

    First the Rule of Law should protect against anarchy and the Hobbesian war of all against all. Second, the Rule of Law should allow people to plan their affairs with reasonable confidence that they can know in advance the legal consequences of various actions. Third, the Rule of Law should guarantee against at least some types of official arbitrariness.

    Note how different – with different empahasis and levels of granularity – each take is. At the broadest, each tries to convey a sense of “political farienss” (that’s what makes “rule of law” such a powerful concept). In some ways, I suppose I can substitute “rule of law” above with “social harmony” – for things to still make sense, if you subscribe to certain “ideologies.”

    To the extent rule of law means something general like “fairness,” I have no quarrel – if by fairness you mean something that is politically defined for each nation. However, if by fairness you mean certain things that are particular to a certain way of doing things (self governance, balance of power, arbitrariness (as defined for each nation), etc.), I may. My problem is not that these things are not Chinese, my problem is that we should not jump to the conclusion that just because they are successful in certain cultures they must be universal.

    Anyways, these will certainly not be my last words on the topic on this blog. I will continue to share thoughts, although I don’t know if I will write a “treatise” as Ying Yang suggested I would in the other recent thread. I may have to write a law review article first to organize all my thoughts…

  4. N.M.Cheung
    July 23rd, 2013 at 05:27 | #4

    According your definition then there is no such thing as the rule of law in any country in the world. It is just an utopian yearning or theoretical musing. After all the perspective for different people differs depending on their background. Take the case of “Stand Your Ground Law”, some would see it as unbiased, just, or according your terminology GROL, I am sure Zimmerman would agree, I just don’t think Martin, may he rest in peace, would agree. Of course you would argue this law doesn’t pass your GROL test, but please then specify a particular law that pass your GROL test. I am sure it will be pick apart in HH. I think that is the basis of your discontent in HH. You seem to feel any argument presented by you has to be agreed or applauded. Such is the nature of blog. Only the person who initiated the blog has total control. I posted in a China blog disagreeing their take on China and got chased away. I got blasted for allegedly making personal attack when I was only making satirical comments and threatened to be barred from making any comments. I am sure if you started your own blog you would have total control and bar any critical comments from your blog and reflected your own glory.

  5. N.M.Cheung
    July 23rd, 2013 at 06:23 | #5

    Take the 2 recent cases in China about urban rule enforcers. One was the watermelon seller who was killed in an argument with urban rule enforcers in Northern China, the other is the Beijing Airport bomber who was paralyzed when he was a motorcycle taxi driver after conflict with urban enforcers in Southern China. His grievance unsolved with petitions and finally led to explosion which injured himself as a protest. The issues raised are many beyond the laws on urban rules or brutality in enforcement. I live in NYC. We have our share of disputes of citizens with polices from parking meter to sanitary police that occasionally escalated to deadly forces from Diablo to Bell shootings, each was unarmed with more than 50 shots fired. No one disputes that some laws for urban areas are needed, from licensing for peddler to food safety to traffic enforcement. Although the watermelon seller case was settled for near 1 million Yuan, and the motorcycle driver was paid 100,00 Yuan not as compensation but as charity, both cases reverberated in Weibo comments and I think Chinese government need to reflect on them. During Mao’s time the highest ideal is to serve the people. Today money predominates in Capitalism. I think it’s time to settle somewhere in between.

  6. Black Pheonix
    July 23rd, 2013 at 08:08 | #6

    1st, I just want to say, I would be sorry if you left because you perceive “sensitivity to criticism”. I think you got the wrong impression. I for one was more than happy to entertain your various arguments, though I did not always agree with them.

    And just to clear it up, I have no authority on HH to change your access.

    *****

    Now for your argument.

    “The desire or value that laws should be as non arbitrary, the least unfair, the least unbiased, the most transparent and the most beneficial for all in society as possible”

    I disagree, and I have said this before, about your definition, particularly the last majority portion “as non arbitrary, the least unfair, the least unbiased, the most transparent and the most beneficial for all in society as possible”.

    This portion is highly subjective and vague, and amounts to nothing but an aspirational statement.

    The fundamental problem with your “definition” is that it is not defining any thing as DISTINCT.

    Well, “rule of law” should be at least different from “rule of man”, right?

    However, I can just as easily plug in “rule of man” in your “definition”:

    “The desire or value that Emperors/Kings should be as non arbitrary, the least unfair, the least unbiased, the most transparent and the most beneficial for all in society as possible”.

    Did your “definition” make any distinctions between “Law” and any other form of rule? I don’t think so. Then your “definition” didn’t really “define” any thing did it?

    I would love to entertain more of your arguments. You might find my arguments “sub-par”, but I don’t think I’m being sensitive about that.

    🙂

  7. July 23rd, 2013 at 09:10 | #7

    @Black Pheonix

    And just to clear it up, I have no authority on HH to change your access.

    But I do.

  8. July 23rd, 2013 at 10:53 | #8

    I also think it’s best we are given our own space. Melektaus – good luck on your blog. Allen has offered to link to it from here, as some of our readers are clearly interested in following your work.

    Hey Allen/Black Phoenix – your patience has paid off, at least for me. “Rule of law” is incredibly ingrained. Its actually alluring to think that nothing is above law. Most people are not lawyers nor are they exposed to the multitude of perspectives coming together to get the conviction. In the last few weeks I have learned a lot!

  9. July 23rd, 2013 at 11:02 | #9

    @YinYang

    I do have a confession … I have always been searching for a “rule of law” that actually works the way it claims. Even now, I am still searching for some universal truths that stands the test of time. Until I find it though, I think it is better to be safe than sorry – that is to be pragmatic, empirical, to see things as politics that serve the current times, rather than jumping to conclusions about things universal and eternal… projecting one’s own prejudices in the time being…

  10. Black Pheonix
    July 23rd, 2013 at 11:10 | #10

    @YinYang

    The idea and theory of “rule of law” is not new to China. Similar concepts of “equality before law” and systemic application of laws are more than 2000 years old in China.

    Again, theories are all good, but reality doesn’t always fit nice theories.

    I went into the legal profession to learn about the details of “rule of law”, only to discover it’s more often “rule of money and politics”.

    I’m like Allen, I also search for it.

    It’s like searching for “God”. I sometimes hope/wish that there is one, but I’m not counting on it, not when I know the World is full of men exploiting the idea of “God”, as they would exploit the idea of “Law”.

  11. July 23rd, 2013 at 12:37 | #11

    The implementation of law(法) pretty much started in China when history was first recorded. Since Huangdi (黄帝) time it has existed. However, it is a feudalistic law that have different standard for different segment of the society (noble, shaman, commoner, slave) and is run on the concept of punishment does not apply to nobles (刑不上大夫).

    It underwent a fundamental change only in the state of Qin around 356 BC when the law is applied equally on noble, commoner and slave alike. To top it off it introduced a system of reward where a slave can become a commoner, and a commoner a noble. It introduced the concept that when a prince commit a crime, his punishment is the same as a commoner (王子犯法与民同罪). This is the biggest social revolution ever introduced in any society up to that time. This system ultimately lead to the meritocracy and examination of later dynasties.

    Although Qin uses a strict and uncompromising code of law to strengthen and ultimately unified China, it fell apart less than 20 yrs later. The rigid application of law simply stress the people out. A guy who would be the first commoner emperor of China proclaimed a simplified less severe law and the people rejoiced (约法三章).After the Han dynasty reunify the country again, he apply a very hand off approach to governance, typically called a variation of Daoism (黄老之道).

    Subsequent emperor find that the lose law didn’t give the government enough power so Confucianism was pushed to the forefront. Confucianism is definitely stricter than Daoism but less than Legalism. A story from the analects clearly illustrated Kong Fuzi approach to rule of law. Kong Fuzi was a magistrate and he once caught a deserter from the army. By law all deserters would be executed or severely punished. However, Kong heard the man out. The man pleaded that killing him would mean killing two lives. He argued that since no one can take care of his elderly mother, him going to war or being put to death would mean killing two lives. Kong Fuzi agreed with his reason and let him go.

    So was Kong Fuzi right in freeing the deserter? The legalist condemn his approach and say that if every soldiers have parents or children to take care of the country would collapse under invasion. The Daoist approach is that men should love peace, live individually and abolish the government as it is the root of all evil. Of course Daoism only work in theory and never work in real life.

    From what I see in Chinese history, the rule of law in China is always influenced by these three major school of thoughts. The legalist approach only work in time of emergency and war. In time of peace, the Confucian method is preferred. This approach give a lot of leeway to the magistrate to execute the law and has repeatedly attack in history as human rule (人治).

    Even in the 20th century, I see the cycle being repeated. The tough martial law under the KMT and CCP during the revolution and war years. The Cultural Revolution is simply a free for all human rule where the masses decide the crime and punishment. In Taiwan, martial law wasn’t lifted until the 1980s. As China again enter period of peace and development, Confucianism is again being emphasize. Of course, there is also incessant call for rule of law and a total idealistic utopian model.

    The discussion here pretty much ended on the endless debate of “white horse isn’t the same as a horse”. 白马非马 http://baike.baidu.com/view/10187.htm

  12. July 25th, 2013 at 00:53 | #12

    Alright, got my tentative blog up (sinobserver) and will begin to transfer my old posts from HH to there and some new posts soon

    https://sinobserver.wordpress.com

  13. Zack
    July 25th, 2013 at 05:24 | #13

    @melektaus
    excellent news, the more China blogs or sites out there showing the Chinese perspective, the better we’ll all be.
    i’ve favourited your site, melektaus, and will be making regular visits.

  14. July 25th, 2013 at 06:11 | #14

    @melektaus

    Congrats. I’ve added Sinobserver to our blogroll. If you need any technical help, just let us know. No need to reinvent the wheel at every turn…

  15. aquadraht
    July 25th, 2013 at 14:40 | #15

    @Melektaus: Sorry that you leave, all the best for your new project. Think about linking with HH mutually, and consider at least the one or the other guest comment here. I shall surely read your blog, too.

    Some notes anyway. I think that most here will agree that a rule of law as you denoted is not a bad thing. But I agree quite much to what Ray wrote. Some comments from my side as a west European (and I do not think the situation in the US is any better): We had to observe a growing withdrawal of democracy and legality since decades. The end of cold war hastened that development. Few years ago, a former chair of the German Federal Bank told the politicians during a WEF session that they should recognize that they are not the decision makers anymore, rather that the markets had taken over. The German chancellor Merkel created the term of “market conforming democracy” (marktkonforme Demokratie).

    Latest in that development is that JP Morgan lamented about an “excess of democracy in some European countries that needs to be trimmed”. http://blogs.euobserver.com/phillips/2013/06/07/jp-morgan-to-eurozone-periphery-get-rid-of-your-pinko-anti-fascist-constitutions/

    Ok I need not mention NSA and Snowden. Fact is that all European governments and services participated. Fact is that the western countries have torn apart international law, starting one war of aggression after the other, that they reinstated torture and terrorist murder by drones as normal means of politics. There is a huge and not stopping growth of lawlessness in the west.

    Ok, that is not so much your business, I know. Yet the West poses as the blueprint of rule of law. To be honest, I tend to prefer the rule of the vilified CCP more and more. They did not send killer drones to the Dalai Lama or other jerks. And they are not submissive towards the market forces.

  16. July 25th, 2013 at 16:39 | #16

    @aquadraht

    Few years ago, a former chair of the German Federal Bank told the politicians during a WEF session that they should recognize that they are not the decision makers anymore, rather that the markets had taken over. The German chancellor Merkel created the term of “market conforming democracy” (marktkonforme Demokratie).

    This article from Prof. Cass Sunstein of Harvard Law may be of interest.

    Of course, keep in mind in general that whatever human failings might ail the market, similar failings may also ail the political process (democratic or authoritarian)….

Time limit is exhausted. Please reload the CAPTCHA.