Thursday, July 5, 2012

He Weifang: Legal Reform, Resolve, and Lawyers (Part III of III)

Professor He Weifang. Photo credit:
China Business View
There is perhaps no better example of a public intellectual in China than He Weifang (贺卫方), professor of law at Peking University Law School and avid promoter of legal reform and judicial independence. In part two of a three-part translation of an interview He gave Xi’an newspaper China Business View, he discusses the role of lawyers in legal reform and the benefits judicial professionalization brings to the public. Click here to read part one of the translation on reform and professionalization and part two on the reformer’s need for resolve.

Reform Itself Changes National Circumstances [Excerpt]
China Business View, May 19, 2012
Interview with He Weifang

Lawyers Can Bring Public Discontent into the Realm of Rationality

CBV: Discuss the importance of civil society to reform.

He: Chinese society has never resolved the problem of the structure in the middle of society: besides the state, there are only individuals who are like a sheet of loose sand. For 2,000 years it’s been like this. So, we need to fight against these 2,000 years of history. We know that the bar in the UK is an extremely independent organization that experiences no interference from the state. On the contrary, they nibble away at state power. In the 17th and 18th centuries, British lawyers monopolized entry for judges and judges had to be reputable members of the legal profession. This meant that the strength of society had entered into state power and a portion of the power of the state had been transformed by the logic of society. In my view, this is what civil society is. When society is filled with a variety of forces, the state cannot do whatever it wants.

CBV: Lawyers play a very important role in the democratic process, as they can minimize the intensity of conflicts and promote moderate progress. But in practice, lawyers are less effective than hoped for and they are heavily restricted.

He: Lawyers as a profession have decided that they must struggle against public power. In today’s China, when we glance behind us we can see lawyers “banding together for support” and continually demonstrating their strength. Lawyers are determined to struggle against public power and think of ways to use norms to shape state power. But in another sense, they are also using norms to shape public sentiments and bring public discontent with the government into the realm of rationality so that it can be resolved reasonably. So, when ordinary people hire a lawyer to represent them in a lawsuit, the clearest symbolic significance is that they still respect the state. Can you still attack lawyers at that point? A history lesson from France teaches us that if you always attack lawyers, it forces lawyers to become the leaders of a great revolutionary era. Silver-tongued lawyers are good at argument at court and they can also be terrific at inciting people. Weren’t Danton and Robespierre both lawyers? So, I am always calling on officials both directly and indirectly to change their prejudices and stereotypes about lawyers.

CBV: Often during some high-profile individual cases the arguments that develop in public opinion and the media cannot be bridged, such as in the case of Li Changkui. What is the significance of a society’s culture to the law?

He: Some decisions are clearly unreasonable or, perhaps, flawed. Take the case of Li Changkui: sentenced to death by the court of first instance, the death sentence suspended on appeal. I felt the reasoning used by the appeal court to change the verdict was not convincing, but I said we should respect the court’s final judgment because we must support the determinacy and stability of judicial decisions. We cannot allow judicial decisions to be like baking a pie, because if decisions are not determinate, it means power is not determinate and we’ll forever live in a state of uncertainty. The security of a rule-of-law society relies to a great degree on the stability of judicial decisions. This is what we commonly refer to as the ultimate nature of judicial decisions.

Cicero said that extreme justice is extreme injustice. Humans cannot achieve absolutely perfect justice. [So] we [shouldn’t] concentrate the limited financial and human resources of the legal system on those errors that should not be corrected—that’s the primary lesson of the Li Changkui case. This kind of sense is what Chinese legal culture lacks most. I’ve been trying everything I can to use weibo [a Twitter-like service] and the Internet to express this kind of idea. I will continue to say that if ordinary people don’t understand a judge’s decision, it doesn’t mean it does not benefit them. On the contrary, the more one pursues professionalism, the more benefits it brings to ordinary people. Admittedly, ordinary people don’t really understand what [judges] are doing, but despite not understanding, these things are still valuable and must be subject to checks and balances from within the profession. Of course, what sort of force can constrain the actions of jurists? This requires a slow growth process for the legal profession, as well as rationalization of the legal profession’s internal mechanisms. I’ve discovered an interesting paradox: The more emphasis is placed on maximizing the value of one’s own industry, sometimes it actually brings the most benefits to ordinary people.

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