The Difficult Problems in Realizing the Ideal of Human Rights

The actual meaning of rights can be fully understood only on the basis of an analysis of the crucial problems pertaining to the process of realization of human rights in the transitional period. The nature of the process of the realization of human rights in China lies in a shift from totalitarian control and suppression of rights to a liberal guarantee and protection of basic human rights. But this change is subject to social, political and cultural conditions under which human rights can be realized. In this transition, therefore, it follows that there will be intense conflicts and social disorder. Here a distinction between the meaning of liberties relating to ways of life and the principle of liberty (consequences of liberties and the principle of liberty) is made, and there is the assumption that the actual value of liberty is much more important than the abstract form of liberty itself.

i. The Validity of Constitution and Law

Here we face the problems similar to those of the Weimar Constitution of A ugust 1919; that is, the Communist Party only m anipulates the Constitution, and does not respect it enough to act seriously upon it. At the same time, the oppositional organizations such as FDC & CAD are hostile to the 1982 Constitution, although they hope to draw up a new constitution.

78As to the role of leaders in the transitional period, see Jadwiga Staniszkis (1989 & 1990), Samuel P. Huntington, 1984, 213, Larry Diamond, 1989,151, and Higley & Gunther, 1992. This opens up the whole problem of the transition from authoritarian rule.

79In the 1920s, the Communists and National Socialists were hostile to the Weimar Constitution. See Neumman, in Keith Tribe, 1987, 7.

In p rin c ip le , eq u al rig h ts m u st be p ro te c te d by in s titu tio n a l arran g em en ts such as a constitution and laws; the aim of law s is not prim arily to m ake people good, but to uphold a system of rights. But the problem s lie in the nature of the laws and the process of law -m aking and law -im plem enting. A ccording to Wei Jingsheng, we have only autocratic rules of law, such as those exercised by Qin Shi H uang and the Gang of Four, w ith o u t dem ocratic rules of law in C hina. Lin Y usheng argues differently that traditional China has only "rule by law s": that is, law as the in stru m en t of rule which w eakens the m eaning of legality and even creates an efficient totalitarian society.80 Following Lin's view, we m ay claim that D eng X iaoping's legal reform s w ere in stru m e n tal to changes in the econom y and functionally useful in the m odernisation process, and not ends in them selves. It follows that the m ost serious problem s are: (1) Laws them selves are u n ju st in the sense th at legislation in C hina m u st first com ply w ith the so called "Four C a rd in al P rinciples" in the 1982 C onstitution and that the C om m unist Party has policy superiority over the state and economy. (2) The Party is above the legal system; the legal system in C hina gives the Party a special form of authority; and legal regulations are g re a tly in flu en ced an d even d ecid ed by the subjective w ill of paternalistic leaders.81 (3) A lthough there is a positive and w orkable law, in practice it is not taken seriously by either the leaders or the masses.

It is justifiable for a citizen not to obey the old laws, because the laws them selves are problem atic, and som e of them are unjust. Thus the notion of a general d u ty to obey the law that holds in all cases m ust be abandoned. In the transitional period, the old legal system has been discredited, and the new legal system does not yet function well. The new law w hich aims to p ro tect equal rights im plies th at the d u ty to obey the law is justifiably required. There is, how ever, a paradox betw een obeying the law and not

80Lin further argues that the rule by laws is totally different from the rule of laws which presupposes basic human rights and implies that any laws and regulations must comply with a meta-legal doctrine - the idea of natural rights (Lin Yusheng, 1988, 58, 79, 292, 381, 319). 81 The view may be well elaborated by Feng Xuefeng's fable in 1956 that a snake decides to make a law that no one can interfere with another animal's privacy without due process. Then to teach the timid hare how to use this law, the snake barges into his den and bites one of the baby hares to death. He waits by the door for the hare to come out and follow the new law by charging him with breaking it (see Nathan, 1986, 161-2).

obeying the law in the transitional period. It is this paradox that m akes laws and their protection of rights ineffective.

H ow ever, a m ore serious problem resides not in the justification of obeying or not obeying laws, but in the practical im plem entation of laws. Let us exam ine the effects of corruption. One often talks about the serious co rru p tio n in C hina and in doing so refers only to officials or cadres. N ev erth eless, the p ro b lem of m ass c o rru p tio n sh o u ld be d ra w n to attention. O rdinary people, like taxi drivers, doctors, ticket sellers and shop assistants, do use their pow er for personal gain. A common attitude is that if you do not use w hat pow er is available to you, then it will expire as quickly as a film ticket. This attitude is so popular that it seems to legitimize "the back door" and abuse of pow er. The seem ing legitim acy of "the back door" and abuse of pow er im plies that people and cadres do not m ake a clear distinction betw een w hat is legal and w hat is illegal. It follows than that if people do not have a clear sense of laws and do not care about them, it is difficult to im plem ent the rule of law. As Machiavelli claims, w hen it is corrupt, good legislation is of no avail; and a co rru p ted people, having acq u ired lib e rty , can m a in ta in it only w ith the g re a te s t d ifficu lty (M achiavelli, 1970, 157-60, also see Skinner, 1983). If laws and regulations are not effective, freedom in its operation is not action w ithin the lim its of law but a kind of anarchic action. Thus, w ithout the rule of law this form of freedom inevitably increases social disorder and becomes a "negative force" rather than a constructive one.

ii. Conflicts between Rights

The realization of freedom is alw ays associated w ith w hat Jean-Paul Sartre calls m oral dilem m as or em otional contradictions on the in d iv id u al level (B. H. S later, 1988, 317). T here are m ore in tim ate lin k s b e tw ee n contradictions and freedom on the collective level than on the individual level.

The o p eratio n of rig h ts at both the dyadic (the rig h t of v o lu n tary exchange or contract) an d collective (the rig h t of associations and state organizations) levels is subject to, and affected by, certain social, political and cultural conditions as well as social relationships u n d er w hich hum an rights can be realized. Rights, therefore, are often related to other rights of

other people. There are conflicts betw een rights. According to H ardin, the protected actions of one party coincidentally bring harm to another party, typically because of the external effects of the actions. A nd the protected dyadic rig h t of contract conflicts w ith collective rights th at w ould deny m em bers of relevant collectivities the right to enter certain dyadic contracts (H ardin, 1988, 117). Let us examine the exam ple of tensions betw een hum an rights and dem ocracy in term s of political developm ent. W hen the control an d su p p re ssio n of m inority n ationalities by the ru lin g p a rty loosen, conflicts b etw een n atio n alities increase; an d n atio n alism will o v errid e dem ocracy given abuse of the rig h t to autonom y. For exam ple, the operation of the right to regional autonom y may underm ine a possibility of the realization of a dem ocratic federal system if conflicts betw een rights occur. If people in Taiw an and Tibet are supposed to be granted fully the rig h t of au to n o m y , they m ay choose to b u ild an in d e p e n d e n t nation. Therefore the rights of autonom y m ay contradict the idea of a dem ocratic federal system as proposed by Yan Jiaqi. In short, the Chinese liberals have not set up principles for dealing w ith these conflicts of rights.

The Chinese liberals also overlook the consequences of the operation of the right to property. The right to property and its protection in the legal system m ay becom e an even greater source of political conflict in Chinese social life. To protect the right to property in Chinese economic life m eans, at tim es, th at political privilege tu rn s into econom ic privilege given the corruption of pow er and the absence of fair rules. Thus economic privilege leads to unequal com petition and injustice. The close relationship betw een dem ocracy and the right to property and private ow nership is m ere wishful th in k in g .

The conflicts betw een rights cannot be attributed to the old system but to the n atu re of rights operating in the transitional period. This will bring forth a new problem , m ore serious than the conflicts betw een political p o w er an d in d iv id u a l rig h ts if the collapse of the C hinese com m unist party's m onopoly control occurs. The greatest difficulty for the realization of hum an rights lies in the overlapping of the old and new problem s. A nd the old p ro b lem s such as political privilege, c o rru p tio n and the crisis of succession have not been resolved; while new problem s — tensions betw een

rights, distorted forms of rights and a burden of rights arise from the actual social and political background in China.8^

iii. Distorted Forms of Rights

In adhering to a "perfected" ideal of human rights, there will be an increase in the inevitable distortions attaching to the processes of realizing human rights. First, freedom and rights operate in an anarchic way or, what Wei Zhengtong calls, "break from any bondage" in China. Thus liberty is understood to be completely antagonistic to tradition and its culture. As Wei Zhengtong observes, in modern China liberty takes the form of anti­ tradition: if we have tradition, then we have no freedom; if we want freedom, we have to break with tradition completely (Wei Zhengtong, 1976, 55-69, in particular, 66). Thus this rebellious kind of negative liberty not only contains the idea that liberty is being let alone, but become a subversive force set up to oppose the existing political and cultural system.88

Second, in Mao's time, there was roughly an egalitarian distribution of wealth but there was a lack of equal rights and opportunity.84 Conversely, in Deng's time, there was neither equal rights and opportunity nor equal distribution of wealth. Injustice has become a crucial social problem. We see

8^As to the study of the contradictions in the transition period in the Communist societies, see Jadwiga Staniszkis (1989 & 1990).

83In order to overcome these theoretical problems, I suggest that Philip Pettit’s (1990) republican conception of negative liberty is an alternative intellectual basis for Chinese democratic institutional design, because of the following intellectual virtues: (1) The republic conception of negative liberty emphasizes equal liberty in the context of a particular society where individuals exist and interact with one another. This conception requires that a person be let alone to the greatest extent that is standard for anyone in the society; and that he (she) is given a status in law, and perhaps a status vis-a-vis social convention generally, that provides some objective assurance against interference; and finally that he (she) and others must share an awareness that he (she) enjoys this status (Pettit, 1990, 164-5, 176). This conception is contrary to Chinese liberals’ slight attention to the problems of in realizing the ideal of human rights due to their rebellious attitude towards the Chinese totalitarian regime. (2) The republic conception of negative liberty favours the right political products for the state to deliver such as criminal justice, social welfare and a variety of community benefits (Pettit, 1990, 168-72). This conception is contrary to Yan's implicit assumption that rights and the power of the state are antithetical. (3) The republic conception of negative liberty see citizens not only as consumers of the political product, but also as active, deliberative participants in the political process (Pettit, 1990, 172-6). This conception is contrary to Yan's elite democracy.

that som e people enjoy economic freedom on the basis of suppression of others' freedom . The poor and pow erless are controlled by the rich and and pow er holders in political and economic life. Also freedom of contract and enterprise m akes sense only in the context of a free m arket system in which the w orkers and em ployers are both free to give or w ithhold w ork. But u n d er political m onopoly, freedom of contract and of enterprise becom es a privilege and a new tool of exploitation on the p a rt of political pow er h olders.85 That sort of freedom and rights becomes despotism .

T hird, a person, freed from the bonds of a totalitarian society, which sim ultaneously gave him security and lim ited him , has not gained freedom in the positive sense of realization of his individual intellectual, em otional and m oral potentialities. Some people break free from political oppression b u t, u n fo rtu n ately , are then w orse off because they are enslaved u n d er econom ic oppression. For those people, nothing is gained except alteration of the form and sphere of enslavem ent.

Fourth, freedom and rights are supposed to be a consensus for political institutional arrangem ents and actions, b u t in reality China is currently an un p rin cip led society w hich lacks consensus and tru st betw een and am ong governors and the governed; and the principle of freedom and rights is often m a n ip u la te d by p o litician s and even C hinese d em o crats living overseas for their ow n interests.

U sing analysis of the distorted form s of rights, we further argue that the political system in C hina is a m ixture of totalitarianism and distorted forms of rights and freedoms; it has become p art authoritarian and p art free. The classic polar opposites of totalitarianism and dem ocracy, therefore, are n o t an analytical value to analyze the political system in the transition period (Pye, 1990c, 14).

iv. Burden of Rights

W hile John Rawls (1989, 235-8) discusses the b u rd en of reason, and Erich From m (1960) the b u rd en of liberty, here, we em phasize th at rights m ay

88 Also See Franz Neumann "On the Preconditions and the Legal Concept of an Economic Constitution", in Keith Tribe, 1987, 48.

become a b u rd en in the following cases in which (1) people do not know how to make a choice w hen there is a conflict of rights; and in w hich (2) certain people do not w ant to be held responsible for their choices which, w hile en su rin g independence, leave them u n certain of w h eth er or not there will be a price to pay for their choice. The point here is to show that at the crossroads for liberty, the burden of rights may, during the transition, contribute to the totalitarian tendency.

From the above d iscu ssio n , we co n clu d e th a t th ere are three particularly difficult problem s86 attaching to the process of realizing hum an rights. (1) To protect hum an rights we need a just constitution and law, but we have neither a just constitution and law nor well-civilized people who su p p o rt the rule of law in China. (2) To protect, develop and im prove equal hum an rights some regulations and lim itations on rights are necessary. But the ruling party suppresses hum an rights and imposes arbitrary lim itations, w hile the oppositional organizations seldom address the problem of legal lim itations; it is, therefore, difficult to arrive at a consensus of definite lim itations on rights through institutional norm s. (3) Tolerance is a virtue of freedom and is recognition of the autonom y of others. H ow ever, China lacks tolerance after the events of June 4, 1989. People are full of revenge. H atred and revenge tend to suppress the freedom of others. The servile and