William P. Alford, Donald C. Clarke, Jerome A. Cohen, R. Randle Edwards, James V. Feinerman, Nicholas C. Howson, and Stanley B. Lubman
What had Communist – indeed, “Red” – China done to the proverbial Chinese sense of humor? Many Americans who had been separated from the Central Realm for 30 years assumed that Marxism-Leninism-Maoism must have soured this traditionally humorous nation. I suspended judgment, knowing that in the Soviet Union the advent of communism had surely not dented Russian humor, but actually provided it with a rich new vein of material. But was China different?
An early post-“normalization” negotiation in Guangzhou in 1979 gave me an insight. My client wanted to build an $80 million office/hotel/apartment complex but was understandably worried about the risk of cost overruns, since in Hong Kong the Guangzhou contractors were already legendary for never sticking to their budget. The Chinese side, however, was adamant that we had to assume all the risk, even though they controlled all the risk factors. Finally, I said to them: “That’s unfair.” With a twinkle in his eye, their chief negotiator responded: “Capitalists take risks. We’re socialists!”
Ever since the U.S. Navy ordered me to begin intensive study of the Chinese language fifty-two years ago, I have had my suspicions about the fairness and wisdom of the “China bashing” tendency of the mainstream media, members of Congress, and spokesmen for the U.S. government. So, from the beginning of my career as a student of Chinese law, I felt a call to help train Chinese to understand our law and to help Americans understand Chinese law.
Although I began to be labeled a “Chinese law expert” soon after joining the Columbia Law School faculty in 1973, I knew very little about the actual law in the People’s Republic of China in those days. My lectures were usually interpretations of Chairman Mao’s latest poem. But, I must confess that I was under some pressure to provide eyewitness support for my opinions on the Chinese legal process.
Finally, I got tired of evading the question “when were you last in China?” from colleagues and fellow guests at cocktail parties. It was embarrassing to admit that I had never been to the PRC. But, during the 1970s, it was very difficult for an American to get into China unless you were Bill Hinton1 or Jerry Cohen. Desperate for a visa, I signed up for a “struggle session” with the New York chapter of the US-China Friendship Association, which regularly sent proletarian groups on friendly tours of China.
To my surprise, the panel which “struggled” against me approved me for a trip to China in May, 1978.
My group flew to Zurich to take an Air China flight to China via Bucharest, Tehran, and Urumqi. I was quite excited about my first trip to the PRC after having studied the Chinese language for twenty years. I must confess that I was also more than a bit apprehensive to be visiting “Communist China” for the first time as a member of the Columbia Law faculty carrying dubious proletarian credentials. I felt certain that I would be detained, searched, and subjected to close questioning on arrival at the Beijing Airport. My apprehension was considerably heightened when our Air China plane circled the Bucharest Airport prior to landing there. The entire airport was surrounded by soldiers with fixed bayonets standing only a few feet apart. I thought to myself, “If it is this bad in Bucharest, I am going to be in really big trouble in Beijing.”
Imagine my surprise when I arrived at the old Beijing Airport. Passport and health inspections was cursory, and the officials were very friendly. As for my baggage and that of my fellow American passengers, they were not even opened. The only interrogation I faced was from an elderly Chinese gentleman in a very well-tailored “Mao suit”, who was sitting next to me waiting for his baggage. He asked me what I did for a living. When I replied that I taught Chinese law, he laughed so loudly that he almost fell off his chair. He said emphatically, “We have no law in China. You are cheating your students and the dean of Columbia Law School!” He was the first in a long line of Chinese citizens, especially taxi drivers in Beijing, who seemed to have conspired to undermine my position as an expert in Chinese law. I guess that was when I decided to concentrate on the laws of the Qing dynasty, for at least there is no one still alive who can say definitively that my interpretations were incorrect!
In late August and early September of 1979, Tim Gelatt and I from Harvard, along with Ellen Eliasoph from Yale, Druet Cameron from Iowa, and Susan Grueneberg from UCLA, showed up in Beijing with the intention of studying in Peking University’s (Bei-da) Law Department. It was largely an act of faith on the part of the Committee for Scholarly Communication with the People’s Republic of China (CSCPRC, later CSCC). By sending a sizable group of law school students and graduates (five out of a total of 30 U.S. official exchange students in the very first year after normalization of relations), the CSCPRC hoped to push open the door to other fields of study beyond the four officially allowed at Bei-da—Chinese, history, philosophy, and economics. After having our Chinese language ability tested at the Peking Language Institute for almost ten days, we were transferred to Bei-da, where we were told that law was an “extremely secret” discipline that foreign students were not allowed to study. We would have to sort ourselves among the open departments, which we did: two to Chinese, one to history, and two to economics.
But my schoolmate Tim was not going to give up that easily. He and I had met that spring with Professor Rui Mu, head of the international economic law division of the Law Faculty, who had (while in Cambridge) welcomed us very expansively and told us to look him up immediately upon our arrival in Beijing. Taking Professor Rui at his word, Tim and I found out (another close-guarded secret) where the Law Department was located—in one of the old original Yenching University courtyards—and went to find him.
There was total confusion when we showed up, asking to be directed to Professor Rui’s office. Of course, there was none, but we had spied a sign for “International Economic Law Division” over one door and barged in with typical American bumptiousness. We were told that Rui Laoshi was not in; we asked to leave a message; more consternation. We had brought paper and pen with us and, marshalling our best written Chinese, left the most erudite note we could assemble. Having been assured it would be given to Professor Rui, we left. Over the next several weeks, we heard nothing, but persisted in going back to the same office and leaving more notes, reminding Professor Rui of the hospitality extended to him at Harvard and hinting as politely as we could (with diminishing courtesy) that we now expected the same in return.
Finally, an actual law student made his way to our dormitory (no mean feat, since only Chinese roommates of foreign students were allowed in those dormitories then) and left a message that Professor Rui would come that evening at eight o’clock to meet with us. At the appointed time he showed up, quite red in the face (perhaps from having to climb three flights of stairs but probably due to other reasons) and told us that we could NOT study law, we should STOP bothering him, and NEVER come by the Law Faculty building again. The rebuff was unmistakable. Then he calmed down a bit and asked us, “Why do you persist in this? Didn’t you get the hints?” We explained that our interest stemmed from having studied Chinese law at Harvard with the famous professor Jerome Cohen, whom Rui knew and who was also in Beijing during that time. Rui retorted, “What was he teaching you? I’m the senior professor of international economic law at Bei-da and I tell you, there isn’t any Chinese law to study. Hasn’t been any for years. What was Professor Cohen lecturing about?”
We began recounting the several courses, and Jerry’s books and other articles by pioneers like Stanley Lubman, Victor Li, and Randy Edwards. Through narrowed eyes, Professor Rui assured us they had all been wasting their time—and ours. And so the five of us began to look elsewhere to learn about Chinese law, translating treatises about the new criminal law and criminal procedure law, finding the odd play or literary article with a legal theme, and reading the new magazines that had just started or restarted publishing information about China’s embryonic law. Upon reflection, it was probably a better education than we would have had in the Law Faculty classes offered at that time. We missed the opportunity, however, to be classmates of Li Keqiang, a student in the department in those years.
More than 20 years ago, I took a very bright and affable law school dean from the PRC to dinner at a restaurant in NYC. Part-way through the dinner, he asked whether he might put a very personal question to me. Of course, I said yes. He stressed, somewhat anxiously, that it was deeply personal and that he hoped I would not be offended. Again, I said yes and began to wonder whether it concerned my religion, my salary, the bedroom, or something similarly sensitive. At that point, looking nervously around the room and then leaning across the table, in a near whisper he asked, “Professor Alford, do you actually believe in the separation of powers (sanquan fenli) or is this just something that, as an American law professor, you are expected to say to Chinese educators?”
In 1991 I was interviewing judges in various cities around China about problems in enforcing civil judgments. In one city, I asked a group of judges whether their court had run into problems of local protectionism in getting its judgments enforced in other cities. (The literature identified this as a common problem.) Not at all, they unanimously assured me. Several months later, in the course of doing more research into the literature, I came across an article written by the judges of this very court, which was written or published (I don’t recall which) in the very month in which I had spoken to them. And what did the article identify as Problem No. 1? Local protectionism!
During a negotiation in Shanghai in the early 1980s on a joint venture to manufacture garments, the Chinese side was evasive on the level of wages that would be paid to workers. It was difficult to calculate, we were repeatedly told.
One morning, my client and I went jogging, and we were soon joined by a young man in his twenties. When he discovered that I could chat with him in Chinese, he became very talkative. When he told me that he worked in a garment factory, I proceeded to interview him on wages and what items they included, and by the time our run together was finished, my client and I were prepared for that morning’s negotiation. At the table once more, we announced that we had been able to conduct some research since we had last met the day before, and proceeded to describe what we had learned. The Chinese side recovered from their surprise and became more open in our discussions. (The joint venture never happened.)
More recently, I was in a taxi in Shanghai, and while chatting with the driver I noticed that a car with a strip of lights strung across its roof was creeping up on our left, even though there was only room for one car, obviously wanting the taxi to let it pass. My driver was stubborn and didn’t give way, but the other car persisted and got very close. After it sped away, I asked the driver if the car was an official car. “Yes,” he said, and then shouted, without any prompting from me, “Of course it was an official car, and officials have special rights. How can we have human rights if the officials have special rights?”
On May 8, 1999, I was having dinner with a British diplomat in the former Beijing courtyard home of Hua Guofeng. The diplomat’s mobile phone went off suddenly; he listened, nodded gravely, closed the phone, and turned to me immediately with “The Americans have bombed the Chinese embassy in Belgrade . . . this is bad . . . ” Indeed, it was “bad,” as the awful incident on the night of May 7-8 during NATO’s Kosovo campaign triggered days of vocal condemnation, violent demonstrations surrounding the U.S. embassy, and the sight of then-rising Hu Jintao greeting heavily-bandaged embassy personnel at the Beijing airport. A few days after the bombing, I received a notice from either the Beijing Lawyers Association or the Beijing Judicial Bureau inviting me—directing me—to attend a meeting on “the 5.7 incident” with representatives of all law firms in Beijing.
As I entered the large meeting room at the Beijing Judicial Bureau on the appointed day, I saw perhaps hundreds of my Beijing-based lawyer colleagues sitting in rows, a roving cameraman with a huge TV camera and boom microphone, klieg lights erected above, and a large banner in red strung over the front dais, saying, “Thoroughly (chedi) Condemn the Criminal U.S.-led NATO Bombing of the PRC Embassy in Yugoslavia!!” Ministry of Justice and Judicial Bureau officials sitting at the table before us began with strong denunciations of the NATO action, all using much the same words on the “purposeful” (guyi de) “U.S.-led NATO” (yi Mei wei shou de Bei-yue) action. As the officials spoke with quick glances in my direction, I felt many of these condemnations were directed at me as the senior representative of one of the capital’s longest-standing U.S. law firms.
The meeting continued with each of the lawyers assembled speaking in turn, offering sometimes heartfelt, sometimes rote, denunciations of the NATO bombing. Many of these lawyers were friends and colleagues of almost two decades, and yet each one spoke in a way I found changed and different: they were strident, conclusory with respect to U.S. intent, angry, and passionately nationalistic. As the lawyers’ statements wound on, it dawned upon me that I was partaking of political theater, something close to a Cultural Revolution “struggle” session, where the unified party line was the guilt and criminality of the U.S. government in wantonly killing Chinese diplomats, and the “struggle-ee” was the person representing U.S. legal professionals—me! I admit to being somewhat sympathetic to the outrage directed at the U.S. government in the bombing: “What stupidity . . . what negligence!” I thought to myself. Yet, I could not believe that the U.S. bombing was intentional, or that such a rush to judgment about American criminality was useful in that fraught moment.
Quickly it came my turn to speak. I deferred, to the evident unhappiness of the officials assembled before us. The condemnations continued, until everyone except me had spoken. Thinking I had escaped the awful prospect of any public statement, I was surprised and disheartened when a friend of more than a decade, a leading lawyer at one of Beijing’s strongest foreign-related commercial firms and an LLM graduate of Columbia Law School, suddenly stood up to say, “We have not heard from U.S. lawyer Howson (Hao Shan). He has lived in China for many years. He is a U.S. lawyer. I think we should hear what U.S. lawyer Howson thinks about this criminal action by the U.S.-led NATO!”
After shooting my friend an exasperated and no doubt despairing look, I assembled my wits and tried to make several points. First, no one had any accurate understanding of the intent behind the air strike against the Chinese embassy. Was it a terrible, tragic mistake, or was it what all the comments in the room—and the clear Party line—seemed to suggest it was, a targeted killing of PRC diplomats in the former Yugoslavia? So, I said, as in any shocking criminal case, we had to first understand as best as we could the facts of the tragedy.
Second, given our shared identity as legal professionals, it was incumbent upon all of us to be dispassionate, and not to rush to judgment, or let our heads be swayed by anger, nationalistic feeling, or politically-useful provocation. The maintenance of this dispassionate stance in the most difficult circumstances, I said, was a hallmark of “rule of law” and a key function in our role as legal professionals, as distinguished from mob rule or the shifting winds of top-down political campaigns.
Third and finally, the world, and the PRC as a UN member, could rely upon norms of public international law to address the bombing, investigate and determine culpability, and provide a remedy for it. I remember declaring that I was not a specialist in public international law or the laws of war, but felt sure that the world’s international legal system could address culpability and punishment, whether the bombing was merely negligent, grossly negligent, or intentional. It was on this third point that I talked my way into an ill-advised flourish. Carried away in the moment, I said, “China can use [public international] law as a weapon (yi falu wei wuqi) to protect its national interest and seek redress!” Most in the room had been silently glowering at me up to this point, hearing the U.S. lawyer attempt to wriggle out of a difficult moral and political position. But as I said the word “weapon (wuqi),” the leaders at the front beamed their approval, the TV lights switched on, the cameras moved in close, and a sharp wave of staccato applause broke out among my lawyer colleagues, with many saying, “Yes, a weapon . . . a weapon!”
To this day, I am not sure what was broadcast on Beijing or national television of the stumbling American lawyer accepting responsibility under struggle, or counseling the Chinese nation to pick up a “weapon” against the United States. . . . I do know that in the days and weeks afterwards, I encountered many of the Chinese lawyers that were in the room that day, and we discussed, drafted, and negotiated the documents and arrangements we always had, without any reference to our extraordinary May meeting at the Beijing municipal bureau of justice. The experience, however, left a lasting mark on me, and caused me (and I daresay some of my Chinese colleagues) to understand even more profoundly the ideal of dispassionate use of the law and legal procedure in the most appalling and politically-charged circumstances.
1. William H. Hinton (1919-2004) was an American farmer and writer sympathetic to Communism who lived in China during the late 1940s. He is best known for his book Fanshen, published in 1966. ^