Twofish's Blog

February 28, 2007

Why law professors write such wishy-washy articles

Filed under: academia, law — twofish @ 8:12 am

One thing that I find frustrating on reading articles by law professors, is that they seem wishy-washy.  One thing one can X is true, but on the other hand Y is true, and then maybe Z is true.  When I get through one of the articles, I think to myself, yes I’ve seen that you’ve read a lot of books, but what’s your point.  There doesn’t seem to be one.

But it finally occurred to me that that has to do with the role of the law professor in the system of law.  Law professors aren’t supposed to come to a point, that’s for judges and advocates to do.  An advocate comes up with an argument that makes his client look like an angel, and his opponents look like a the spawn of Satan.  The judge evaluates these claims and comes up with a decision.  The law professor looks at all of this and records it.  His job (unlike that of a physics professor) isn’t to come to a conclusion or even to argue a position, that’s for judges and advocates to do.  That’s very different from what a physics or economics professor does, and also very different from what an engineer does.

So this is why I get a different feeling when I read a legal document or a court decision.  A well drafted legal document is a work of art, as well as a work of engineering.  A well written argument stirs the blood.  But an article by a law professor in a law journal, wishy-washy articles with no conclusions.

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February 13, 2007

The problem with China Gini coefficient statistics

Filed under: china, finance, law — twofish @ 5:31 pm

It’s interesting how the media moves from traffic accident to traffic accident. Last years story was on how China was getting polarized between rich and poor and how rural unrest was going to bring down the party. You don’t see those stories any more. The problem with news stories is that they start with a general framework and then try to fit information into that framework. So the framework you start with is the old Marxist idea of class revolution, and then evidence is fit within that framework.

Here is a paper that got me thinking….

http://uschinalawsociety.org/symposium/papers/postconference/pdf/Yasheng.Huang.eng.pdf

Here is a revealing paragraph….

Visitors to China and India often report nearly opposite impressions of the two nations. India assaults one’s senses. People living in open squalors, the lack of sanitary facilities, and massive and sprawling slums in metropolises such as Mumbai and New Delhi easily give rise to the impression that is a very poor and unequal society. China induces the opposite reaction. Its urban space is sanitary and is largely free of grotesque manifestations of poverty, such as massive slums. It is not surprising that visitors to China leave the country with the impression that it is one of the most successful countries in tackling income inequality and that India has done the opposite.

The reality is almost exactly the opposite. The most widely used measure of income inequality is the Gini index, which ranges from zero — perfect equality — to 100 — perfect inequality. In 2001, China’s Gini index was 44.7; In India during the 1999-2000 period, the Gini index was 32.5.

This is an interesting paragraph since it basically says that if there is a conflict between the numbers and what you see, you should believe the numbers and forget about what you see.

But lets look a bit deeper, and try to figure out *why* there is this conflict. One interesting fact about China’s Gini coefficient is that it is almost completely a regional phenonmenon. The Gini coefficient for a particular province is rather small, you only get wide variations in Gini coefficients if you look *between* provinces. That is the reason why you see slums in India but not in China.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=949072 

Once you see that piece of the puzzle, then a lot of things make sense. The first is why economic reform causes the Gini coefficient to increase. It’s because some provinces are better placed to take advantage of economic growth than others. The second thing is why even with huge Gini coefficents, China seems more equal than Latin America or Africa. It’s the Bassla-Samuelson effect. People make a lot more money in Beijing than they do in Guangxi. People make a lot more money in New York City than they do in Beijing. But a lot of these costs are offset by the fact that the cost of living is higher. If you do things via purchase price parity, the difference is a lot less than they first appear.

Let me quote another section of Huang’s paper that doesn’t quite fit…

One is that in the 1990s and the early 2000s the incidents of unrest were relatively concentrated geographically. For example, Liaoning province experienced 9,559 incidents of unrests between 2000 and 2002. This was a large fraction of the publicized number of incidents — around 50,000 during this period. In many ways, the unrest in that province can be easily explained. Liaoning province was the bastion of socialism, and the SOEmreforms and poor performance have led to joblessness and income stagnation in that province. However, in the last two years, the geographic scope of unrests has widened substantially. Incidents of unrest were recorded not just in struggling provinces but also inprosperous provinces. Zhejiang, Guangdong, and Fujian have all witnessed large-scale protests. Even Shanghai is not immune.

The problem with this explanation is that Liaoning is not a struggling province.  It is in the rust belt, but it is also on the coast, which means that it’s actually one of the more prosperous provinces.  If you look at the spatial distribution of reported incidents they happen in the more prosperous provinces rather than in the less prosperous ones, and this works against the idea of growing class struggle.

So what is going on???

I’m not exactly sure.

But there is one lesson here and that is that things are complex.  The problem with news media reports is that they take a complex story and try to boil it down to one or two numbers.  This is a bad thing because to understand a situation, you shouldn’t look at one or two numbers but rather hundreds of numbers.  If you look at hundreds of numbers as the above paper does, things get more complex.  You have urban versus rural.  Different provinces.  Different macroregions.  Differences over time.  All of which leaves you more confused than before….

And confusion isn’t a bad thing.  As HL Mecklen once said, it’s not what you don’t know that will get you, it’s what you know that isn’t.  The problem with focusing on one number is that this leads to clarity, and clarity is sometimes a bad thing when the actual situation isn’t clear at all.

February 9, 2007

Why the Dalai Lama is wrong

Filed under: asian am, china, law, tibet — twofish @ 5:53 am

Here is a very sad article on the end of Tibet

http://www.rollingstone.com/news/story/13247913/the_end_of_tibet/1

There is a deep connection between Tibetan Buddhism and the anti-war hippie culture of the 1960’s.  The Dalai Lama has this very attractive message about how non-violence and ideas can overcome political repression.

It’s unfortunately that his message is not consistent with reality.

The reality is that power matters, and power comes from guns, money, and ideas.  War and violence is horrible, and peace is a wonderful goal.  But to have a just peace, you need to be constantly thinking and preparing for war.  If you don’t have guns, you don’t have money, and you don’t have ideas, then you end up at the sufference of others, and this is not a good thing because you’ll be subject to their agendas which may not be your own.

Power is scary.  Power is dangerous.  There is a very real possibility that by picking up the gun, and figuring out how to make the money, and thinking about the ideology of power, you end up destroying yourself.  But the alternative of rejecting power, leads only to subservience at the hands of others.  It is unfortunately that the world works this way, but it is true.

One more insight….

I’m Han Chinese, and not Tibetan, and it’s not my responsiblity to figure out what it means to be Tibetan in the 21st century.  I do have a lot of sympathy for ethnic minorities figuring out how they fit in a majority society, because that’s one of the big struggles of my life.  There are two dangers which I’ve had to deal with.  One is this idea that one can “preserve” a culture.  One preserves dead bodies.  If something is alive, it changes and grows and adapts.  If you don’t change and grow then what happens is that your culture simply becomes a museum piece for tourist to gawk at, meanwhile the skills and ideas that are powerful get held by others.  To be Chinese-American means more than eating dim sum and having dragon dances, it means learning to coding C++ so that you can make money.

The other danger that I’ve had to deal with is the temptation of thinking that you can separate yourself from the majority community or the idea that by being involved with the majority community one becomes “less” of a minority.  In the United States, Chinese-Americans make up such a small minority that an effort at “separatism” would be suicidal.  Instead, by learning English, by learning American history, by becoming part of the national community, one has more social resources to develop and grow a minority culture, and being part of a national community which is a part of the global community, one strengthens the culture rather than weakens it.

February 5, 2007

More about New York Times on Luo Gan

Filed under: china, finance, law, politics — twofish @ 1:36 am

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.

NYT says:

“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.

January 1, 2007

Notes on the NPCSC Decision on the Property Law

Filed under: china, finance, law — twofish @ 2:54 am

This is an interesting political formula that illustrates some curious
interactions between economics and the law.  The basic economic dispute is
over whether or not privatization is essential for China to develop an
efficient corporate infrastructure (I’d argue that it isn’t,  Yasheng Huang
is one of the people that argue very strongly otherwise.)

By using the formula that “market subjects are equal” what the NPCSC is
basically doing is letting the market decide the dispute.  If it *is* the
case that private ownership is required for efficient corporations then what
will happen is that private corporations will out compete state owned ones,
and lacking state favoritism, corporations will be pushed to privatize.  On
the other hand, if you believe that private ownership *isn’t* required for
efficient corporations, then what will happen is that the state-owned sector
will be able to hold its own against private corporations (and it’s my belief
that the latter will be true).

There are three interesting implications of the idea of “market equality.”

1) First, there are very strong reasons for state-owned enterprises to support
the idea of market equality.  Although, market equality means that SOE’s
don’t get subsidies, it also means that SOE’s also have reasons not to put up
with state interference in management activities, and I suspect that many
SOE’s will use the idea of “market equality” to argue against state
restrictions which they will argue will put them at a disadvantage with
respect to private enterprises.

2) If things are equal, then they can in principle be interchangable, and I
think that the future of Chinese corporations is that they will become
hybrids with mixed private and public capital.  The contrast here is with
foreign and domestic capital which aren’t “equal” which creates an entire
body of law which regulates and restricts how foreign and domestic capital
can be combined.  The “equality” of private and public capital means that the
combinations of private and public will be decided on a case by case basis
with no restrictions and no body of law regulating how they can be mixed,
which I think will create some pretty diverse legal and ownership structures.
This can be thought of as the “hundred flowers” system of Chinese corporate
finance.

3) Finally, since there does now seem to be a consensus in favor of “market
equality” the next set of screaming will be to determine what is
exactly “equal.”  It’s not hard to come up with dozens of scenarios where
there is legitimate disagreement over whether or not a situation respects
market equality.

The last point is particularly significant for Chinese constitutional and
legal development.  Once a (rather vague) principle has been stated, there is
now the need for a mechanism to determine how it works in a specific
situation,  I’ve been doing a lot of reading on the history of US corporate
and securities law, and the striking thing about it is how passive Congress
has been, and how the major decisions and laws come out of case law from the
Courts and SEC actions.  Securities Exchange Act of 1934 section 10(b) (one
paragraph) gives rise to SEC Rule 10(b)-5 (three paragraphs) which gives rise
the the entire structure of US Securities Law.

It will be interesting to see how this process occurs in the PRC.  The two
models that I can see is that there will eventually be something in the NPCSC
which is akin to Judicial Committee of the House of Lords or French Court of
Cassation, an administrative law system coming out of the State Council which
will resemble the French Council of State or the US system of Article I
administrative law judges, or having the People’s Courts develop a system of
precedent with respect to securities and corporate law, or most likely an odd
combination of all three.

The development of corporate and securities law in the PRC is also important,
because that is one area in which the “democratic deficit” isn’t a major
handicap.  Most of the time, there is very little public interest in
corporate and securities law, and when there is interest it is in response to
a crisis or scandal in which the legislature is pressured to “do something”
without too many restrictions on what that something is.  In some ways the
fact that the NPCSC is insulated from popular pressure makes it easier for it
to act as a “House of Lords” rather than as a deliberative popular assembly.

It would be interesting to see how this all turns out.

Post on Han Learning

Filed under: academia, china, confucianism, history, law — twofish @ 2:26 am

http://www.chinahistoryforum.com/index.php?showtopic=15534

QUOTE(Yun @ Dec 31 2006, 10:58 AM) *

I am very impressed by your being able to relate your profession as an astrophysicist to the Han Learning tradition. But I’m afraid your characterization of the Han Learning vs. Song Learning debate seems to be incorrect. Essentially, it was Zhu Xi Neo-Confucianism (i.e. Song Learning) that elevated the Four Books and reinterpreted them in certain ways to purge influences from Daoism and Buddhism, using the argument that Confucianism has been distorted ever since the Han period. Han Learning was a reaction against this blanket dismissal of Han scholarship. Han Learning scholars attempted to restore the importance of the Five Classics which had been eclipsed by the Four Books, and also criticized the liberties that Neo-Confucians like Zhu Xi took in interpreting ancient texts to suit the Neo-Confucian agenda. Furthermore, they were able to prove that some of the classic texts that Song Learning used to justify its doctrines were really post-Han forgeries, the most prominent such forgery being the then-standard version of the Old Text Shangshu.

Correct. And Han Learning scholars such as Dai Zhen then accused Zhu Xi of being overly influenced by Buddhism and Daoism and in order to recover the “pristine copies” of the ancient classics, the Han Learning scholars then turned to evidential research, which meant careful research into philology and language in order to remove the Buddhist contamination. This lead them to research astronomy and mathematics which they believed would be the key to deciphering the ancient classics and return China to the pre-Han golden age. Until the Sino-Japanese War, they were convinced that the science and technology that they were seeing coming from Europe was merely “lost ancient Chinese knowledge” that the Europeans had merely refined. After 1895, this belief was unsupportable, but you see the academies in Zhejiang and Jiangsu which had been founded to conduct evidential research reorient themselves to continue research in astronomy and mathematics, and around this time you have the first foreign students to Japan and the United States, which after a generation or two, leads to me…..

So there is a pretty direct line of transmission between the Han Learning school and me. The irony of the school is that they methods that were using to reconstruct the pre-Han “golden age” by demanding strict observation and evidence (i.e. scientific investigation) would later demonstrate that the golden age that they were looking for, never existed, and that would cause a crisis that would effectively end Han Learning in the 19th century.

At the same time, even though the philosophy of the Han Learning school undermined their project, they do form most of the basis for how I look at the world. I reject the rationalism of Zhu Xi and the possibility of sage enlightenment by pure thought, and the believe that reason should overcome emotion in all cases. Instead, my philosophy emphasizes the need to “seek truth from fact,” emphasizes moral uncertainty, and dismisses the possibility of moral perfectability. It also explains my interest in astronomy, law, and history, which are all efforts to understand the cosmic order.

Because I come from Han Learning rather than Song Learning, I also am at odds with those that would elevate Confucianism to a national religion or the “New Confucianism” which attempts to create a “secular religion.” I’d argue that by emphasizing the Song Learning/Buddhist need to go beyond feeling to rational thought that the “New Confucianism” creates a philosophy which is detached from the human experience.

There are a lot of differences between what I believe and what the Han Learning scholars believed. I’m nowhere as hostile toward Buddhism as they were. I live in a world where China is a nation-state is a rapidly globalizing world rather than a “world civilization.” I’m far more interested in physics and engineering than they were. And most importantly, I realize that their original goal won’t work. However, the basic philosophy of the evidential school outlives their original goals and leads naturally to the epistemology and methods of science in much the same way that medieval scholastics in Europe moved toward the philosophy of science, notwithstanding the fact that it destroyed their original goal (which was to mathematically and logically prove the existence of God).

December 23, 2006

Thoughts on the history of US Securities Law and Austrian economics

Filed under: austrian economics, china, finance, law — twofish @ 4:25 am

I have a pile of books, and when I get bored, I often just choose a book at random and start reading it.  The lucky book of the day was a book on US Securities Law, and I’ve started reviewing those books in the last few days.

The thing that interests me is not so much American Securities Law as it currently exists, but howAmerican Securities Law developed over time.  The interesting thing about US Securities Law is that most of it has developed without much input from the legislative bodies.  Except for the passage of key bills such as the Securities Act of 1933 and the Securities Exchange Act of 1934, most of US securities law has developed through an interaction between the courts and the SEC.  In particular, most of the issues of what is in the PRC Securities Law are issues that were developed through a detailed development of rule 10b-5.

The implication of this to the PRC, is that it would appear to me that the lack of “Western democratic institutions” aren’t a major barrier to the development of PRC Securities Law and PRC Corporate Law, because democratic institutions weren’t that important in the development of those laws in the United States.  One thing that I’ll be thinking about over the next few months is to look at the development of Securities Law in the United States and try to look at the analogous institutions in China.  In particular, I’m interested in the exact dynamics between the SEC and the Federal Courts.

The other thing that I’ll be thinking about is the relationship between these ideas and Austrian economics.  The two things that I’ll be thinking about are:

  1. the relationship between Austrian economics and the use of empirical data.  Austrian economics prides itself on being derivable from the principles of interactions between individuals, but at the same time I get the sense that a lot of Austrian economics (such as Rothbard) is maybe a little too ideological, and not sufficiently empirical,
  2. the other thing that I think is a weakness of Austrian economics is the theory of the firm.  Austrian economics at its core is about the interactions between individuals, but I think there is insufficient thought given to how individuals form institutions.  This fits in with my interest in securities law and corporate law.  It would appear to me that corporations are creatures of the state rather than entities spontaneously produced by individuals.

One other thing.  It occurs to me that the reason I don’t like neo-classical economics is that I’m too familiar with how corporations work to believe that they maximize profit, and I’m too familar with myself to believe that individuals maximize utility.  Where I think the pricing system comes to play is not the corporations maximize profit, but rather than corporations with large losses cease to exist.

So among the many things I have to do over the next year are:

  1. read more von Mises and Hayek
  2. figure out what neo-Austrianism is
  3. read more about institutionalism
  4. read more economics papers.  I have to learn to talk the talk.

One final thing.  The reason that I’m interested in Austrian economics is that it has a very good explanation for the deficiencies of the Chinese economy under central planning with the economic calculation problem and Hayek’s “road to serfdom” analysis.  Also the building blocks of Austrian economics provides the potential for understanding and making public policies decisions about the Chinese economy.

This is in contrast to neo-classical economics.  I can’t think of a single useful insight that neo-classicial economics can bring to analyzing the Chinese economy.

December 22, 2006

Notes to Ian Williams

Filed under: academia, china, law, taiwan — twofish @ 4:11 pm

Comments on

http://www.fpif.org/fpiftxt/3815

The problem with that article is that it ignores nationalist sentiment on the Mainland, and misunderstands the complexity of popular sentiment on Taiwan. Also it attempts to analyze a situation by applying rational rules, which causes problems because 1) other people may not accept those rules and 2) without referring to fundamental issues of “will” and “power” any rules you come up with are disconnected from reality.

With regard to “will” and “power,” the basic reality is that public sentiment on the PRC is such that people are willing to fight for and die to keep Taiwan from being independent, whereas the number of people on Taiwan that will fight for and die for independence is relatively small. The other basic reality is that while the major powers of the world will fight in case of an unprovoked invasion by the PRC, no one is willing to fight and die to defend a unilateral declaration of independence by Taiwan.

The reason that popular sovereignty trumps historical claims is that claims that people are willing to die for trump claims that people are not willing to die for, and any discussion on Taiwan has to take into account the fact that there are huge emotions on this issue among the population of the PRC, and any PRC would be forced to take strong, possibly suicidal, action to prevent “de jure independence”.

The other thing that is missing is that while no one on Taiwan wants to be ruled by Beijing, there is a large fraction of the electorate that is against “de jure independence” or “one China, one Taiwan” for emotional reasons, and pushing Taiwan to one of those options rather than keeping the situation ambiguous is extremely destablizing for Taiwan democracy.

Finally, analogies with other situations are useless if you don’t take into account “will” and “power”. What matters is what people are willing to fight for and what people are willing to die for. The willingness to fight and die for a cause is fundamentally irrational, and therefore trying to come up with a rational rule that explains why one situation is analogous with the next is rather pointless. Also trying to come up with a political sentiment that doesn’t take into account “irrationality” is also pointless.

This makes Taiwan different from a lot of other situations, and it also makes this different from other PRC disputes. Askai Chin, the Spratlies, and Senaku/Diaoyutai simply don’t arouse the passions that Taiwan does, and this limits and constrains the situation. Also once you recognize that the root causes of political conflict are because of inherent and *necessary* human irrationality, you can come up with solutions that address these issues. No one really cares if Beijing effectively rules Taiwan, what matters are names, flags, and colors, and you can deal with those relatively easily.

What do we mean by judicial independence in China?

Filed under: china, law — twofish @ 2:21 am

I thinking about a discussion I had about judicial independence in China, and it occurred to me that people mean two different things when they talk about judicial independence.  One is the idea of “judicial impartiality” which is the idea that judges should interepret and apply Chinese law impartially.  The second is the idea of “judicial oppositionism” which is the idea that the judiciary should develop into a independent branch of government which reduces the power of the executive, legislature, and the Party.

The first I think is a good idea, but the second definition of judicial oppositionism is problematic in a number of areas.  Lets suppose someone holds a demonstration calling for the overthrow of the Communist Party.  This is clearly state subversion under the Chinese criminal code.  Under the theory of “judicial impartiality” the judge would have no real choice but to send the person to jail regardless of what their feelings were on the matter.  Under the “judicial oppositionist” meaning of judicial independence, there is perhaps the hope that the judiciary would challenge and limit the rule of the Party.

The judicial oppositionist approach would see the judiciary in China playing the same role as the judiciary in England in limiting the power of the king.  However, I would argue that the role of the judiciary in England was only part of a larger story, and there is no particular reason to believe that having an “oppositionist judiciary” would end up on the side of the “good guys” in China.

The bigger problem with the idea of judicial oppositionism in China is the question “if the judiciary does not apply the laws as written, then what laws does it apply.”  Unlike the United States, the Constitution of the PRC pretty explicitly has provisions which justify and legitimize putting our hypothetical protester in jail.  There is no historical “Fundamental Laws of England” for the judiciary to fall back on.  This leaves some theory of natural law which the judiciary should advance.  The trouble with that is “which natural law?”  Much of the reason that PRC got into the mess that it is in now was because governmental decisions were made by appealing to the “natural and scientific laws of Marxist-Leninist-Maoism.”  Part of the solution to “which natural law” seems to an appeal to “international standards” but that opens the question of who sets international standards, and what happens if you don’t agree with them.  Also, like many countries, when “international standards” hits “national interest,” “international standards” loses.

My personal opinion is that I really do believe that courts in the PRC will develop better if they stick to interpreting the law as written (even if it is written badly) than trying to appeal to some higher law.   Ultimately, I don’t think that the problem of bad laws is a problem that should be solved in the judiciary but rather in the legislature.

One final point.  There is a tendency to trivialize a lot of the fundamental questions involve Chinese legal reform.  The idea is that obviously the PRC system of government is a mess, and so how to improve it should be obvious.  You just wave a magic wand, get rid of the bad people, and poof, you’ll have a perfect government.

What I think is missing is a sense of how many options and open issues there are.  There is no lack of debate on the role of a judiciary in developed nations (i.e. the judicial activist versus judicial restraint debate).  What is missing I think is a realization that some of these issues are connected, and many of the issues that China faces are part of deeper debates, which have hardly been resolved in the West.  Managing and progressing in these debates requires some clarity in what we mean, and this includes clarifying what we mean by terms like judicial independence.

September 14, 2006

Unreasonable statements

Filed under: immigration, law, long war — twofish @ 11:28 pm

One of the things that I’ve read in reading about Hayek is that one of the purposes of a political philosopher is to say things that are totally absurd, but which makes sense two or three decades from now.

Let me say two unreasonable things…..

1) If we need to torture someone or deny them due process in order to prevent another 9-11 attack, then I say that we should let the attack happen, because the damage done to the United States by another such attack is minor compared to the damage done by torturing someone or denying them due process.

2) It is a moral imperative that the United States moves to a system of open borders, because without such a system we are creating a system of labor which is akin to slavery.  A person born in Mexico City has as much right to life, liberty, and the pursuit of happiness in the United States as someone born in Ohio.  The United States could not survive the 19th century as a nation with the institution of slavery, and I believe that the United States cannot survive the 21st century without open borders.

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