Nothing to Say: Western Legal Philosophy and China

New York Times columnist Thomas Friedman created a stir when he offered the following comments: “One-party autocracy certainly has its drawbacks. But when it is led by a reasonably enlightened group of people, as China is today, it can also have great advantages. That one party can just impose the politically difficult but critically important policies needed to move a society forward in the 21st century… . Our one-party democracy is worse.”

I am reluctant to offer criteria for what it takes to be “a reasonably enlightened group of people,” but if Western academic legal theory and political philosophy stand in for what Friedman’s group believes, then we ought to be cautious in our optimism, to say the least. After all, their position is at times murky, and at times at odds with the American constitutional order. On pressing issues, Chinese academics assiduously studying American court cases, published journal articles, academic books, etc. may find an endorsement of China’s policies, not a repudiation of them. Far from “speaking truth to power,” Western academics may simply have nothing to say.

Take two contentious issues in China and the United States: eminent domain and religious freedom.

To build the Three Gorges Dam, the Chinese government displaced over a million people, flooded hundred of square miles, and spent the equivalent of billions of dollars. The project generated a not insignificant amount of controversy. The complaints against the project were various, but, generally speaking, they fell under two headings: environmental disaster and human suffering. People asked questions about the extent of the environmental damage and about what was to be done with the people who have been displaced. Concerns about property rights did not take center stage in the controversy, the way that such issues do in the United States.

In Kelo v. New London (2005), the U.S. Supreme Court held that a municipality could acquire private land for a private enterprise, under the Takings Clause of the Fifth Amendment, if it could appeal to future economic benefit that could result from the acquisition. So a local government can take private land for private use, if a public good can plausibly result.

The dissents in the case are fiery, with Clarence Thomas noting that, whereas the Court has an eye to limiting government searches of homes, it apparently cares less about limiting their destruction. He writes, “Though citizens are safe from the government in their homes, the homes themselves are not.” The principal dissent, written by Sandra Day O’Connor and joined by William Rehnquist, Antonin Scalia, and Clarence Thomas, begins with the charge that the Court in its ruling abandons a “long-held, basic limitation on government power,” namely that a government has no legitimate grounds to establish an act of the legislature that takes from one private party and gives to another. According to the four justices in this dissent, Kelo offers governments precisely this kind of power. The dissent ends with the following assessment:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

Notice that this opinion is a dissent, i.e., they … lost. The stated position of the U.S. Supreme Court is that the government can take property from one private party to give it to another private party for developmental reasons.

Chinese legal philosophers reading Kelo may well find complaints against the Three Gorges Dam amusing. Though the court makes clear that states can, individually, create more stringent requirements for eminent domain than what was in place in Connecticut at the time of Kelo, it is still the case that the U.S. Supreme Court believes that a local government can take a private citizen’s home, albeit with compensation, for the benefit of a large multinational corporation. In contrast to Kelo, the Three Gorges Dam is ostensibly for the public good—not for private gain that could lead to a public good. That’s not to say that the Three Gorges Dam project is good, defensible, or ought to have been done. But it is to say that, if Susette Kelo can lose her home for Pfizer, then a Chinese citizen can lose his home to help millions of others.

Take one more example: the 1982 Chinese Constitution demands religious toleration. Chapter 2, article 36, grants freedom of religion, both in belief and in practice, and it speaks against discrimination on the basis of religious belief. Yet the CPC Constitution prevents party members from having religious commitment. Additionally, Chinese citizens are not allowed to appeal to China’s Constitution in court cases. So if charged with violating a Chinese law on religion, a Chinese citizen cannot respond in court that his constitutional rights are being violated!

The United States is, obviously and thankfully, a very different place. The First Amendment both restricts the government from establishing religion and protects the free exercise of religion by citizens. The upshot of the First Amendment in instances of disputes is that U.S. law defers to—that is, it submits to—the ecclesiology of the relevant church body, rather than to what judges determine is plausible or is just apart from the relevant church’s governing structure. In Presbyterian Church v. Hull Church (1969), for example, the Supreme Court reversed a Georgia state court and Georgia Supreme Court decision. Both Georgia courts sided with local congregations wanting to secede from their denomination (and take their property with them) on the grounds that the national denomination departed from Presbyterian orthodoxy, i.e., there was a breach of trust, or implied trust. Whereas both Georgia courts thought it appropriate for the legal system to judge a matter of doctrine, the U.S. Supreme Court thought otherwise. Courts ought to defer to the ecclesiology of the religious body, so, if the churches in question are presbyterian, then questions of doctrine for the purposes of breach of trust should be determined along presbyterian lines. Far from being a recent decision from activist judges, the 1969 ruling self-consciously follows a series of previous rulings, going back at least to Watson v. Jones (1871), that distinguishes U.S. law from its English common law cousin.

Hence last year’s unanimous Supreme Court ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. Just as it is not for a U.S. court to decide whether or not a denomination or a local church departs from a particular doctrine, so too it is not for the U.S. government to decide who qualifies as a minister according to the church’s doctrine.

However, what’s interesting for our purposes is not the unanimous ruling by the Supreme Court but the executive branch’s arguments on the other side. In the majority opinion, the Court rejects “the view,” proposed by the Equal Employment Opportunity Commission and the respondent, that “the First Amendment analysis should be the same, whether the association in question is the Lutheran Church, a labor union, or a social club.” Let’s be clear on the executive branch’s approach to government involvement in employment cases when religion is involved: it should make no difference at all.

And consider the amicus curiae briefs. Those who want to treat the Religion Clauses of the First Amendment in the context of broadly written employment law included the People for the American Way; a group of law and religion professors; a group of antitrust professors and scholars; the National Employment Lawyers Association, et al. These briefs offered support for the respondents, that is, in favor of an attitude towards ministers and employment law that the Court unanimously found out of accord with the First Amendment.

Chinese legal theorists studying the case may walk away with an impression that, though the Court currently affords a special exemption for religious employment law, legal theory is slowly working in the opposite direction, towards special recognition but not special protection. They are far more likely to study the legal opinions of professors at prominent law schools—well represented in the briefs mentioned above—than the thoughts of those on the other side.

That’s certainly the impression that I got two summers ago, when I went to China to talk with Chinese and North American academics about religious toleration and the rule of law. Before the trip, my working assumption was that intellectual exchange could do real work: if only they knew the Western legal and moral tradition, I thought, they would behave differently. But I was mistaken. Parts of the West—and by no means the least influential parts of the West—simply have nothing to say to China’s moral challenges. It isn’t that people in China aren’t sensitive to Western legal and moral philosophy. On the contrary, they are, and sometimes what they’re reading offers support for, and not criticism of, China’s official state policies.

It all makes me think of Whose Justice? Which Rationality?, the title of one of Alasdair MacIntyre’s books. The next time someone says that China needs to learn from Western legal theory or political philosophy, we should ask, “Whose legal theory? Which political philosophy?” It makes a difference.