This post is written in response to Jean Christopher Mittelstaedt’s criticism of the paper I presented at the 2015 European China Law Studies Association Conference. Jean Christopher Mittelstaedt works with Stéphanie Balme at SciencesPo, in Paris. The criticism I received from him is, thus far, the best and most sophisticated criticism I have ever received. I am not posting the response he sent me. Those who are interested in the question of how we should approach Chinese law may want to get in touch to explore possible ways to start a broader public conversation on this and similar points.
Here is, however, a summary of what Christopher wrote. Among others, my paper holds that principles in Western law are equivalent to “原则” in Chinese law, and therefore “Seeking Truth from Facts” functions as a legal principle.
Christopher’s criticism takes aim at the question of what a “principle” and what a “原则” are, according to the paper. To understand a language, he writes, we have to live within it. Language posits us within a worldview and determines our horizon. Our horizon, however, expands when we enter a foreign language. Whenever we acquire a command of one or more foreign languages, we acquire the ability to live in between two or more different worlds, without negating the worldview our mother tongue has bestowed on us. The most interesting question, here, would be what happened to the speaker’s worldview, what does it mean to our use of language, which semantic detours and how many of them the speaker has to take when the general consensus prohibits the speaker or writer to use his true mother tongue. But, this question relates to the philosophy of language more than to anything else.
When we speak two or more languages, we find ourselves entangled in the problem of interpretation: when we translate from language A to language B, we automatically add an additional layer of interpretation to the meaning B has in the target language. This is a general problem, the critique says, evident in my acceptance of what a “principle” is, and in my projecting the meaning of “principle” onto yuanze 原则. “Principle” does not correspond to the meaning of yuanze 原则. yuanze 原则 was born within a specific horizon of meaning, one that has to be studied and understood. The paper I wrote criticizes the brutalization of concepts in Chinese law, the separation of concepts from the contexts that give them meaning but, the same brutalization is evident in my analysis of what “Seeking Truth from Facts mean”.
1. This response does not put forward a defense of the paper I wrote in September. I believe that the endeavor of:
(1) isolating a word, or a concept, or anything else in Chinese law AND
(2) explaining the word, concept etc. in light of a meaning that originates from the context within which the interpreter operates; or a meaning the interpreter attributes to those who use the explanandum (= thing to be explained) in China is defensible on cognitive grounds only.
While we cannot make sense of the world around us in the absence of at least one cognitive scheme, any attempt to defend the paper on cognitive grounds would amount to nothing more than a statement that:
“because the meaning I have constructed for X according to how I see the world, is the meaning of “legal principle in a Western sense” [where “Western sense is clearly another construct”] then, whenever a Chinese person encounters X he will give to X the same meaning I gave to it or at least very similar one.”
This statement says more about the interpreter, and perhaps about the interpretive consensus within which the interpreter operates than it does about the explanandum. If this point is accepted, then the question remains of why I wrote a paper where paragraph 2 bends back upon itself. Differently stated: why does paragraph 2 tells us a lot about how we Westerners look at principles but, it doesn’t say anything about how Chinese people conceive of yuanze 原则?
2. After all, I have stated that one of my goals is performing what I playfully call “psychoanalyses” of the concepts and “mechanisms” I encounter. In other words, if those who make, interpret and use the law are historical beings whose goals include solving problems as these problems exist in their societies, perhaps their statements could be read à la letter.
For instance, the words in article 33 of the PRC Constitution “the State respects and preserves human rights” can be read as meaning that the state respects and protects human rights. In the absence of nothing less than a clear statement to the contrary emanating from a constitutional authority, perhaps we would not want to assume that article 33 paragraph (3) was included in the PRC Constitution with the intent to pay lip service to rights that belong to every human being. An interpretation based on either the assumption that
(1) Chinese politicians and legislators will always and only say the contrary of what they mean, or
(2) in theory, they may truly mean what they say but, they are in practice unable to achieve their purposes because they have adopted a different set of political principles would be problematic.
In the paper, I explained how I am trying to ‘listen’ to the political/legal system impartially:
Differently, from Michael Dowdle‘s concepts of “constitutional listening”, which itself is an adaptation of the principle of charity, impartial listening does not involve “finding the most coherent interpretation we can” for legal statements. Neither does it involve the Occamian simplicity principle. The human mind strives for explanations which are as simple and as coherent as possible, and it is therefore natural that our search for clarity, simplicity, and coherence leads us to overlook interpretations that seem, to us, to lack these qualities. However, simplicity and coherence may be more an aspiration of those who try to understand Chinese ideology and law, than an objective feature of either ideology, law or both. If this is the case, then the very presupposition that the best possible explanation is the simplest or most coherent one will not enable a better understanding of the law. A seeming incoherence between two or more of the concepts or principles stated or embodied by the same piece of legislation, between law and interpretation, interpretation and enforcement or adjudication ought to be considered among the normal features of the legal system. Impartial listening takes into account the possibility that both coherence and incoherence are normal components of a legal system. Therefore:
(i) it abstains from finding any interpretation that attempts to reduce incoherence, or to simplify complexity;
(ii) it accepts that, in stating principles which may appear naive or incoherent, the law-maker, or the exegete, is stating what he believes to be the truth, using the language that he believes to be acceptable in the political and legal environment within which he operates;
(iii) it considers naivete, excessive simplicity (or complexity), incoherence (or coherence) between concepts and principles as given, and possible symptoms of political or legal dynamics that deserve a further exploration.
It seems that the paper starts out on the right track but then, it derails as it falls back in the very same cognitive scheme it tries to avoid. Yet paragraphs 3 illustrates how “Seeking Truth from Facts” became among others a 原则 yuanze, and some of the meanings that those who use “Seeking Truth from Facts,” say “Seeking Truth from Facts” has. Isn’t this a contradiction I could have easily avoided?
To give an adequate response to Christopher’s criticism, an explanation of how I conceived the paper, and a disclosure of the intentions I had in mind as I set out to write the paper are necessary.
3. To explain how I conceived the paper, I should try to explain how I read Chinese texts.
Here, the ‘how I read Chinese texts’ relates not to the techniques I have learned, and to those I am trying to develop (described here, in part). The ‘how I read’ in the context of this post relates to my perception of the text, and what kind of cognitive processes my perception of the text triggers.
When reading a Chinese text, or a text in an alphabetic language, persons may experience the text verbally, in the sense that upon seeing the characters 实事求是 or the words “Seek Truth from Facts” they may think in words, verbalizing the words in their mind. I do not. I experience the text in a different way. Whenever I read, I visualize each and every word in roughly 50 percent of the page (25 percent if the text is in Chinese) with a single glance. I do not verbalize the words in my mind but, I conceive their meaning (in some case the meanings) visually, as in the case when a person sees a road sign:
Sometimes, I conceive their meaning non-visually, and non-verbally. Sometimes, seeing Chinese characters triggers a flow of images. Sometimes, it is as if characters were moveable components, that could be rotated, shuffled, and arranged at will in the same way wooden alphabet blocks can. I see the text as if the text was not the unitary whole that it is (or it claims to be, or it seems), but a composite of various units of meaning, which are connected in many different ways:
Each unit of meaning may have been born at a different time, because of a variety of different reasons, and it may acquire one or more different meanings over time. The hypothesis that units without meaning exist in legal texts is a hypothesis I reject on very simple grounds:
If “shishi qiushi” really contained no information, then it wouldn’t have been carved on the stone placed at the East Gate of the People’s University (=Renmin University of China).
While reading and commenting on the CCP Statute at Law at the End of The Day, upon seeing 实事求是 I had a flashback of each one of the places, each one of the texts, and each one of the practices where I saw those words, that slogan, motto, chengyu, or principle carved, painted, written, spoken or acted upon. I understood that these artifacts, places, texts, actions etc. were somehow related because, not unlike polyhedra, Chinese tifas and 原则 do have different faces (meanings). Some yuanze perhaps are “weightier” than others, and while the yuanze can be ordered hierarchically, such an ordering is not the only possibility….
4. The intentions I had in mind when I wrote the paper were many. I wanted to give an example of how we may try to understand the information conveyed to us by all those linguistic units we do not really understand. (If we truly understood them, we would not dismiss them as Communist blabber without at least attempting to perform an analysis of what their meaning may be).
I wanted readers to understand how, in reality, principles are neither transcendent nor are they unchanging truths. Principles and 原则 are man-made. They are created in a specific historical, cultural, political, and social context in response to distinct needs，problems or wishes. That 原则 are man-made, and that principles are man-made too, given how they derive from experience and empirical observation, does not say anything as to whether one’s conception of law is consequentialist or deontological. What I found interesting about principles and 原则 is that both of them are ordinary words, words that have transcended the sphere of ordinary language to acquire a different kind of communicative function.
I am trying to work outside of all the approaches, and techniques of China studies, with the goal to unveil the cognitive frameworks I have been using for the past ten or twelve years as a result of being (among many other things) a “China scholar”, and possibly understand where they work, and where they don’t. Trying to step out these cognitive frameworks is possible only if one becomes aware of them first. Again, one can become aware of these cognitive frameworks by listening nonjudgmentally and impartially to what the field says.
Last, but not least, I wanted to stimulate a debate or at least a discussion on whether our current approaches are suited to our goals. As I have explained on at least three different occasions, and in different European cities, I felt that after spending twelve years working mostly on criminal justice, I was hitting a wall that limited my comprehension of what Chinese law is. This wall was a wall made by those ideas, approaches, and techniques that are more or less taken for granted, and therefore seldom interrogated.
One of my goals is understanding what “X” means and how it works, where X may be any concept or institution in China’s legal system. If research is collaborative, then generating some debate at least was essential to achieving this goal. Because of this reason, I deliberately placed a few fallacies, and elements of internal incoherence in the draft version of the paper. Among others, I took the provocative moves of:
a) stating that a semantic equivalence between “principle” and “yuanze” exists, without performing a semantic or etymological analysis of “yuanze”. In fact, I wrote what “Seeking Truth from Facts” means, according to what some of those who use “Seeking Truth from Facts” say it means but, I never said what “yuanze” means, according to what those who write or talk about “yuanze” say it means.
b) explaining what a principle means to “Westerners” by appealing to authority. In so doing, I projected an alleged and perhaps non-existent “Western view” of what a legal principle is on China, while at the same time decrying the use of Western standards to look at Chinese law.
c) suggesting that principles are at the same time eternal unchanging truths and man-made, interpretive entities that do change over time.