I spent a while going through and trying to figure out how the New York Time could have possibly summarized the speech by Luo Gan in the way that it did. Here is another quote that I think was taken wildly out of context.
“There is no question about where legal departments should stand,” Mr. Luo said. “The correct political stand is where the party stands.”
This is what the paragraph says
The central part of a governing attitude is in governance, ideology, and action is to be at one with the party center. Governing authorities should conform to party policy: this means the correction execution of the law, and unifying party leadership with rule of law, to seriously and fairly implement the law, and to unify the will of the party and with the will of the people. A policy of reform is good for the perfection of the socialist system, and has benefits for strengthening the rule of the party, and at the high level, maintaining the power of the party, and insuring compliance with party directives. Our research and study of the the law cannot leave the four cardinal principes. In improving our socialist governance training, we must improve the process of cadre education, improve theoretical work, improving theoretical training, and move legal work in a good direction.
One issue that the New York Times missed is that the speech had very little to do specifically with the Chinese courts. A better translation of “legal departments” is “legal system.” It’s pretty clear from the speech that Luo Gan and probably no one in the CCP Politiburo has any intention of creating a multi-party system. At the same time, its also clear that they sincerely believe that the can have a system of rule of law while maintaining Communist Party leadership. It’s actually pretty clear also how they plan to do that. As long as the Communist Party is unified it can control nominations and elections to the People’s Congresses, which pass the laws. Once the People’s Congresses pass the laws, then it becomes the duty of judges to interpret the law as passed by the People’s Congresses.
I do think that they may be more successful at this than a lot of commentators think. The reason for this is that if you look at the history of legal systems, all of the ones that I can think of where initially started by a central government with the intention and the effect of increasing their power. We start with the Emperor Justinian and the Code Justinian, Henry II and common law, Napoleon and his code, Otto von Bismarck and the German legal code. It was only after a while that the judges started to act independently from the central administration, and this was often because there was an irreconcilable split in the central administration. But the fact remains that at the initial stages, kings and emperors and potentates, all created a legal system for the exact reasons that Luo Gan is describing for instituting more rule of law in mainland China, it vastly increases their power.
I also think that if you look at recent legal history, it’s obvious why the New York Times is missing this. The recent experience of the NYT regarding the role of the courts involves things like the Pentagon Papers and the Nixon Watergate tapes in which the judicial bodies sharply limited the power of the executive. “Rule of law” and “more power to the central government” just doesn’t make any sense to the writers and editors of the New York Times, which is why I think they interpreted Luo Gan’s remarks the way that they did. They can’t see how someone can honestly be in favor of rule of law and a strong government. This is fine.
The trouble with that approach is that than it becomes an article on the political views of the New York Times and not an article on Luo Gan. We can argue a lot about whether Luo Gan’s vision is workable, but it becomes very difficult if we don’t know what they are. There is also a legitimate discussion as to whether or not the views of the New York Times concerning the proper relationship between the courts and the government are correct or workable. However, this also becomes difficult if the New York Times doesn’t point out the “lens” that it is seeing the speech through, or even worse, doesn’t realize that it exists. The NYT might argue that they are limited by the size of the article, but there is this new invention called the internet that makes it possible to break these limits.
There are some other interesting things about the speech, but the most important thing that I thought about the speech was that it mentioned that the Communist Party should adhere to the principles of Marxism. Note that he just said Marxism, and not Marxist-Leninism-Maoism or even Marxism-Leninism. This has been one of the most significant things about Hu Jintao, which is that he has very quietly dropped Maoism and Leninism from the Communist Party platform. For anyone familar with the history of socialism, this is very significant, because this means that the CCP is no longer ideologically ruling out social democracy or the social revisions of Eduard Berenstein, and when Hu Jintao talks about “social harmony” he is implicitly rejecting the idea of class struggle as well as opening the door to some new thinking on the role of the party which rejects the Leninist idea of a party-state.