Clarke Colloquium Series presentations take place each week over lunch. Faculty and senior graduate students meet to present and discuss works-in-progress on law and culture in East Asia. The informal setting encourages discussion and the series' focus on new and cross-disciplinary research provides attendees with a nuanced view of Asian institutions and practices.
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| Professor Eva Pils spoke on The Peasants' Struggle for Land in China in spring 2008. |
FALL 2009 COLLOQUIUM SERIES EVENTS
Documents: ‘Gifts’ of Form in the Debate on Hybrids and Chimeras
W. Calvin Ho, J.S.D. Candidate, Cornell University Law School
Wednesday, September 9, 2009
The presentation will examine the impact of law on the “problematisation” of biomedical research involving human-animal combinations within an ethical setting. The author will focus in particular on the ways in which ethical challenges – both perceived and conceived – have been translated into legal issues that could be managed through legislative or regulatory action. The paper will reflect broadly the ways in which legal norms and practices shape scientific and technological development, with focus on developments in three key jurisdictions: the United Kingdom, the United States and Singapore.
Political Pluralization in China 2003-2006: Lessons from Hydropower and International Trade
Andrew Mertha, Associate Professor, Department of Government, Cornell University
Wednesday, September 16, 2009
Professor Mertha has written two books, several chapters in edited volumes and articles in The China Quarterly, Comparative Politics, and International Organization. His current project is a comparison of political "rectification" campaigns in China from the 1950s through 2005 and in Cambodia under the Khmer Rouge (1970-1975 in the "liberated areas," 1975-1979 under Democratic Kampuchea, and 1979-1998 in exile to the maquis). Longitudinally is examining institutional continuity, while spatially using the cases of the PRC and Cambodia to leverage what we know about political rectification – past and present – in authoritarian regimes more generally.
Watch a video of this event here.
Talk Overview
by Kelly Terranova
Professor Mertha’s discussion focused on the way in which groups which have traditionally been excluded from the policymaking process in China have recently found ways to become part of the system and have even been successful at shaping both local and national policy. The most interesting part of his discussion is the way in which these groups, whom he calls policy entrepreneurs, have been able to be successful; not by changing the system but by finding a way to work within it. We in the west are so focused on democratization and the need for structural change, but the movement in China has shown that this is certainly not the only way to achieve political liberalization and arguably not even the best way for some countries.
The Chinese political system, like most systems, has a lot of fragmentation. The policy entrepreneurs, which typically include disgruntled local officials, journalists and NGO officials, have learned to use this fragmentation to their advantage and to push their policy agendas right through the cracks. The primary tool used to do this is what Mertha calls issue framing. The official state "frame," or policy reason that the state uses to push its agenda, is the need to develop the western part of China. The state emphasizes how various projects will bring electricity, roads, commerce and economic development to people who have traditionally been ignored or forgotten and how it will ultimately create a more harmonious society. This is very difficult to argue against. What the policy entrepreneurs have been able to do in the instances where they have been most successful, is to re-frame the issue. They have been able to "get there first" and tell the story in a way that captures the hearts and minds of the people and paints a picture of a cause that they are persuaded to get behind. Once the policy entrepreneurs are able to do this, it sort of de-claws the state and mobilizes the people to rally against them.
One interesting thing to note about this is the importance of the policy entrepreneurs keeping their supporters under control. We saw in the Pubugou example that when it starts to get out of hand and the supporters become more like a mob of protestors, the government is going to get the final word. It no longer becomes about the policy goals, but degenerates into a struggle for the government to assert their power and regain control. The policy entrepreneurs are no longer in a position to negotiate. They have to walk away. Some of the successful alternate frames that the policy entrepreneurs have been able to use have included environmental rights, minority rights, cultural heritage and social justice. One notable frame that was unsuccessful was the issue of inadequate compensation.
Kelly Terranova is a third-year J.D. student at Cornell Law School. She holds a bachelor's degree in political science and is interested in cross-cultural comparative studies. She considers the Clarke Program "a great way to learn more about the law and culture in an area of the world that I do not know
much about."
The Art of the Gut: Manhood and Ethics in Japanese Politics
Robin M. LeBlanc, Department of Politics, Washington and Lee University
Wednesday, September 23, 2009
Co-sponsored with Cornell University East Asia Program
Professor LeBlanc teaches comparative politics, political theory, and women’s and gender studies. Her published books include The Art of the Gut: Manhood, Power, and Ethics in Japanese Politics (forthcoming, October 2009, University of California Press) and Bicycle Citizenship: The Political World of the Japanese Housewife.
Watch a video of this event here.
Talk Overview
by Emma Truswell
Robin LeBlanc began her presentation about masculinity in Japanese political life by introducing her audience to two of her research subjects: men with different politics and backgrounds but who used, and were constrained by, common patriarchal structures and conventions. Takada-san is a conservative politician bred into politics; Baba-san is an older man who was, during LeBlanc’s study, entering politics for the first time, hoping to reform politics in his town and prevent the construction of a nuclear power plant. LeBlanc’s talk focused on the role of silent empathic political agreement between men, aun no kokyu or the art of the gut. Her discussion was colored by the insights and experiences of Takada-san and Baba-san, as well as her own observations: especially of a strategic meeting of town patriarchs at the home of Baba-san, where she silently served tea.
LeBlanc’s presentation was structured by four major questions. First, how does male dominance shape Japanese politics? Le Blanc found that men in Japanese politics—particularly the "middle managers of power" that were her focus—spoke of their manhood primarily as a constraint. It required that they act as breadwinners, show familial loyalty and conform to certain standards they felt were expected of them as ethical men. Yet Le Blanc also indentified masculinity as a resource that provides opportunities for one man to manipulate others using the art of the gut. The art of the gut describes the culture of silent rather than explicit arrangements made between men—the entreaty to a powerful man by breadwinners whose livelihoods are at stake, or the quiet disapproval of a respected patriarch. In Japanese politics, such an agreement is the perfect contract, made by understanding and without the clatter of words. It is also, LeBlanc writes in her book, "the insider’s strategy"—it confirms assumptions and supports existing structures. Women are excluded from conveying or receiving the political messages that form silently between the guts of men.
Secondly, how are identity and agency, structure and power linked? In exploring this question, LeBlanc focused on the meeting she observed at the home of Baba-san. This meeting followed the difficult decision amongst members of Baba-san’s alliance, the Referendum Association, to appoint a young, attractive single mother as candidate. Traditionally, the voting system in local Japanese politics has led to careful arrangements in which candidates of the same affiliation split geographical areas and organizations within which to campaign, in the hope that the popularity of one candidate will not directly lower the votes of another. When such a scheme was suggested at the meeting, Baba-san silenced discussion without full explanation; he declared that backroom arrangements of this kind were an insult to voters did not create “the sort of election our group conducts”. The meeting ended soon afterwards.
LeBlanc explained that such silent understandings support existing systems; because the need to make an arrangement explicit challenges the power structure it helps to hold in place. The quiet suppression of traditional electoral strategy engaged in by Baba-san helped to answer LeBlanc’s third question: is there a relationship between gendered identity and ethical agency? LeBlanc was particularly fascinated by the use of masculine political connections to assist an outsider, concluding: "the unsettling truth is that pursuing masculine gender privilege and using power ethically is, at least sometimes, the same thing." LeBlanc addressed briefly her final question: can social science capture these connected phenomena in operation? Her answer to this question was a hesitant "yes," but she commented on dangers of such analysis: such as that the subjects of her research made independent decisions as men and as ethical agents only in the narrow spaces left by the structures that constrain them.
Emma Truswell is an international exchange student at Cornell Law School from the University of Sydney in Australia. She has a strong interest in Asian culture, and the relationship between law and public policy.
The Tokyo Women's Tribunal and the Turn to Fiction
Karen Knop, Faculty of Law, University of Toronto
Wednesday, October 7, 2009
As rapporteur for the International Law Association's Committee on Feminism and International Law, Professor Knop was responsible for the ILA's report on gender and nationality (2000). She sits on the Board of Directors of the Canadian Council on International Law and has served on the Executive Council of the American Society of International Law. She writes on public international law, with a focus on issues of interpretation, identity and participation.
Watch a video of this event here.Talk Overview
by Buhm-Suk Baek
Professor Karen Knop’s presentation deals about the Tokyo Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery in 2000 to examine “some path not taken in international law’s development with a view to understanding its contemporary resonance.” In other words, she tries to show what the outcome of Tokyo Women’s Tribunal itself would have had.
The International Military Tribunal for the Far East (IMTFE) in 1945 could be a landmark for gender studies because there were actual prosecution and convictions explicitly based on rape, especially describing the consequences of Nanking massacre. IMTFE, however, did not address the comfort women system which can be considered institutionalized mass rape of civilian women. Thus, the Tokyo Women’s Tribunal was established by human rights NGOs and activists from ten Asian countries with a goal to remedy the failures of the original Tokyo tribunal.
The Tokyo Women’s Tribunal is a trial of events not as compensating for the IMTFE, but as the IMTFE. It means the Tribunal applied the international law of 1937 to 1945 as it existed during the time of the crime when the comfort women system operated. The Tribunal is a kind of new twist on people’s tribunal that enabled it to convict as the IMTFE after World War II. There was a debate over the legitimacy of this tribunal whether it is people’s tribunal or mock tribunal. The Tokyo Women’s Tribunal, however, distinguishes it from other people’s tribunals because, as Professor Knop pointed out, there is the mixed context of the fact and fictionality in the Tribunal. In addition, the fiction can help establish the Tribunal’s legitimacy by “providing a consistent legal approach to disposing of legal objections such as statutes of limitations.”
Then she draws a parallel between the Tokyo Women’s Tribunal and the “turn to the past” in literature. The Tribunal, she argues, parallels two particular forms of literary engagement with the past. One is “fact-ion” and the other is the “pre-quel” as opposed to sequel. Application of these two mechanisms enables us to get a better sense of how the Tribunal created facts in the past. The Tribunal tells a factual story of the original tribunal and at the same time, adds a prequel to the history of sexual violence in wartime and the story of prosecution of gender related crimes in international law. In this sense, this precedes the international tribunals in Rwanda and Yugoslavia in the 1990s. Therefore, Professor Knop suggests that the Tribunal’s ‘as if’ device is a distinctive form of critique.
And this mixed context of the fact and fiction in the Tribunal: same witnesses, same victims, different judges and prosecutors fills the gaps in history to blend in what happened on issues of gender-justice since 1990s with preceding history in World War II. In other words, “by peopling and writing the ‘pre-quel’ to these late-twentieth century feminist initiatives in international law,” the Tribunal made these initiatives as a continuation of the factional Tribunal, rather than a change from the original Tokyo trial. They were, as professor Knop emphasized, gradual next steps to include the issue of women’s rights and gender justice in international law.
Regarding the limitation of this kind of critique, she pointed out three things. The Tribunal stuck to the legal sensibility of the time. By categorizing rape as a violation of family honour, the judges did not change the sexual stereotypes embedded in international law. The Tribunal also had to contend with the impact of colonialism on the international law of the World War II period. And, in creating this past, the Tribunal did not clearly distinguish between doing what the IMTFE could and should have done, and what it would have done, if the issue of the comfort women had been fully addressed at the original Tokyo tribunal.
The final part of the judgment in the Tribunal can be “had women been there, it would have been different.” This might be an introduction of another kind of fiction and the idea that women were not there creates another feminist past and present conundrums.
Buhm-Suk Baek is a J.S.D. candidate at Cornell Law School. He is currently writing his dissertation, Prospects for a Regional Human Rights Mechanism in Asia, under the supervision of Professor Muna Ndulo.
Movements to ‘Reform’ the Death Penalty in China and Thailand: What will the Future Bring?
John Blume, Cornell University Law School
Wednesday, October 21, 2009
Professor Blume joined Cornell Law School in 1993, and, in conjunction with Cornell Professors Johnson and Garvey, formed the Cornell Death Penalty Project to foster empirical scholarship on the death penalty, offer students an opportunity to work on death penalty cases, and provide information and assistance for death penalty lawyers. He has served since 1996 on the Habeas Assistance and Training Project Counsel, which consults the Defender Services Committee of the United States Courts. He teaches Criminal Procedure, Evidence, the Death Penalty in America and supervises several capital clinics.
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| Mitsuru Claire Chino |
Diversity in the Japanese Workplace: Law and Practice
Mitsuru Claire Chino, J.D. '91, Corporate Counsel at Itochu Corporation, Japan
Tuesday, October 27, 2009
Myron Taylor Hall Room G85, 12:20 pm – 2:00 pm
Lunch will be served. Please RSVP to Donna Hastings at donna-hastings@lawschool.cornell.edu.
Claire Chino is a Cornell Law graduate and was a partner of an international law firm before she joined Itochu Corporation as its corporate counsel. As corporate counsel, she is primarily involved in overseeing the legal aspects of the company’s global investments in the energy, natural resources and chemicals industry sectors. In addition, she is committed to women’s causes within the company, and helped the company start a diversity program in 2004.
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| Timothy Webster |
Ambivalence and Activism: A Short History of Employment Discrimination in China
Timothy Webster, J.D., LL.M. '06, Senior Fellow, the China Law Center, and Lecturer in Law, Yale Law School
Wednesday, October 28, 2009
Talk Overview
by Isaac Lindbloom
Mr. Webster presented a lecture addressing the recent developments in antidiscrimination laws in China. In his lecture, he addressed the three largest groups of people who face discrimination in China: hepatitis B virus carriers, migrant workers, and women. In particular, he focused on discrimination that occurs in the workplace. He also focused primarily on hepatitis B carriers, as they are the group who has made the most headway in the area of employment equality in China.
Mr. Webster started out with the Tale of Two Trials. Mr. Webster spoke of how these two trials, which both took place in 2003, sparked the recent developments in the employment antidiscrimination laws in China. The first case was the case of Zhou Yichou. Zhou Yichou applied for a government position in Jiaxing, Zhejiang. The district had nine positions to fill, and in order to obtain any government position in China, applicants must pass a rigorous civil service exam. Zhou Yichou scored the eighth highest score, out of one hundred and thirty applicants, on the written and oral exams. Thus, he was offered a position, conditioned on him passing a physical exam. Unfortunately, the physical exam revealed that he was a hepatitis B carrier. The applicable laws at the time clearly forbade any hepatitis B carriers from holding government positions, so his offer was rescinded. As a result, Zhou Yichou contemplated committing suicide. However, he felt a better alternative was to first buy some candy and a paring knife, and stab the government official who delivered his rescission to death (presumably eating candy on his way to the official’s office). This, of course, was equivalent to “suicide by cop” because killing a government official in open daylight with many witnesses sealed his fate immediately. Zhou Yichou was executed in early 2004.
The second case was that of Zhang Xianzhu. Zhang Xianzhu also took a civil service exam for a government position, but for a position in Wuhu, Anhui. He scored the highest score out of thirty applicants. He too received a conditional offer for employment, and he too subsequently had his offer rescinded due to discovering that he was a hepatitis B virus carrier. Fortunately, rather than committing suicide, or taking any other violent action, he decided to instead start a website aimed at improving public awareness of the government-mandated discrimination against hepatitis B virus carriers. Through this website, Zhang met Zhou Wei, a leading antidiscrimination lawyer and scholar in China. Zhou Wei convinced Zhang to sue the government over their overt discrimination, which he did. In his case against the government, Zhang did win, but only a moral victory. The court decided for the government on all issues except one. The court found the government’s finding Zhang “unfit” was erroneous because he was merely a hepatitis B virus carrier, and not actively infected with the virus. But, this victory was a hollow one for Zhang because there was no remedy available to him, as the court also found that the recruitment period had ended, and the number two applicant had already been awarded the position. What this case did do, though, was spark public interest which eventually lead to better antidiscrimination laws in 2007.
At this point in his lecture, Mr. Webster revealed some very interesting data from surveys given to employers in China. Of the employers who filled out the survey, sixty-three percent said that, given the opportunity, they would discriminate against HIV and AIDS carriers. Fifty-six percent said they would discriminate against hepatitis B virus carriers, and fifty-three percent admitted they would discriminate against STD carriers. Interestingly, only six percent said they would discriminate against women (which, if true, is probably better than American employers!). Surveys also revealed that nearly a third of surveyed individuals who were actual hepatitis B virus carriers claimed that they had been fired at some point because of their status as hepatitis B virus carriers. Moreover, they reported that seventy percent of their bosses openly told them that they were being fired because of their hepatitis b virus carrier status.
Next, Mr. Webster provided some illuminating background on laws leading up the 2007 new antidiscrimination law. For instance, in 1987, a state council issued its Administrative Regulation on Hygiene in Public Places which declared that infectious disease carriers had to receive a “health certification form” in order to work in positions with “direct contact” with customers, such as in a hotel, park, inn, restaurant, café, museum, library, and a theatre. Mr. Webster argued that this was essentially the state council’s way of telling those carrying or infected with infectious diseases, including hepatitis B virus, “we don’t want you in public places.” Mr. Webster explained also that many of these diseases, including hepatitis B virus, can only be spread through blood or semen, or through infected fecal matter. This makes it highly unlikely for those infected to spread it to others unintentionally in such places as a restaurant or library.
Fortunately, Mr. Webster pointed out, with the two cases of Zhou and Zhang, and Zhang’s website, public interest was sparked and eventually grew so loud that the Chinese government responded with the Employment Promotion Law in 2007. What was even more remarkable about this was that the government put the proposed law out for public comment. The public, indeed, did respond with thousands of letters and about 11,000 online comments. Finally, the Ministry of Labor promulgated an opinion that prevents discrimination against those who are carriers of certain infectious diseases, including hepatitis B virus. It did not, however, prohibit discrimination against those who are actively infected with the infectious diseases. The Ministry of Labor also issued regulations that provides for punishment of up to 1,000 (approximately $150 USD) for employers who discriminate against hepatitis B carriers.
Isaac Lindbloom is a third-year J.D. student at Cornell Law School.
Clarke Lecture: Jobs and Hope: Gone Forever? Cases from Japan
Yuji Genda, Professor, Institute of Social Science, University of Tokyo
Wednesday, November 4, 2009
Professor Genda is a labor economist and a noted public commentator on the problems facing Japanese youth. A recipient of the prestigious Suntory Prize for Social Sciences and Humanities, he is the author of numerous books and articles on youth, work, and the Japanese labor markets.
Talk Overview
by Janette Lee
On Wednesday, November 4, Yuji Genda, Professor at the Institute of Social Science and Director of the Hope Studies Program at the University of Tokyo, gave the 2009 Clarke Lecture at Cornell Law School. His speech was entitled, “Jobs and Hope: Gone Forever? Cases from Japan.” Professor Genda, a noted labor economist and academic scholar, explored the relationship between hope and work in the face of Japanese financial crisis and social change.
Professor Genda identified 1998 as a turning point when Japan underwent a transformation that fundamentally changed its identity as a nation: financial institutions that were previously viewed as unshakable went bankrupt; small and medium sized companies disintegrated; unemployment soared; and the Japanese youth, the most vulnerable group during times of recession, was hit the hardest. In the scramble to protect employment of the middle aged and elderly, companies slowed down or halted altogether the recruitment of new graduates.
Yet, Professor Genda argues that the problems predated the 1990s; instead, they stemmed from the 1980s. In 1985, there was a rapid increase in the foreign exchange rate, which caused serious distress to the Japanese industry. The year also marked the passage of the Equal Employment Opportunity Act between men and women. The population also aged very quickly in the 1980s: by 1994, Japan had become an “aged society” where over 40% of the population was over the age of 65. Professor Genda identified two major symbolic changes that took place in the 1980s.
First was the shift in self-employment. A unique characteristic of the Japanese economy that distinguishes it from the other developed countries is that a large percentage of the workers—75%—are in small- to medium-sized firms. This phenomenon began right after the Second World War, when many entrepreneurs in Japan engaged in setting up their own businesses. Sony, Honda, and Panasonic, Japan’s largest companies, all began as small factories. To this day, small high-tech firms in Japan are indispensable to large firms worldwide. However, since the 1980s, the percentage of workers outside the non-agricultural and forestry services who were self-employed declined tremendously. This marked decline was especially concentrated among younger self-employees. The proportion of those who were self-employed only rose for those who were over the age of 60. In general, since the 1980s, younger workers are less likely to be their own boss.
The second significant change was in the family. The family unit was the symbol of the post-war generation; however, since the 1980s, there has been a drastically increasing number of single-person households. This can be attributed to the increasing number of the elderly who lost their spouses and young, unmarried persons who live on their own. Fully one-fourth of the population live in single-households. These statistics, however, only provide a superficial understanding of the changes in the Japanese family. Two case studies from the 1980s reveal more deep-seated problems: in 1980, a 20-year old, who was from a distinguished and “normal” family and who had failed his college entrance exams twice, bludgeoned his father and mother to death while they were sleeping. In 1983, scandal erupted when several children from a training home for troubled youths died. They had been subjected to physical violence as a means of rehabilitation. Although there was media condemnation of the incident, there were also quite a few teachers, television commentators, and parents who supported such Spartan means of raising children. It was no longer possible, they argued, to properly raise children solely through education and affection. Professor Genda said that both these incidents reveal that something is seriously wrong in the Japanese family since the 1980s.
In piecing the two major social symbols together—self-employment as a symbol of independence and family as a symbol of security—Professor Genda said that the deterioration of both has led to a diminished sense of independence and security. When one looks at the typical ideal of success in Japan, one thinks of passing the college entrance exams, securing a job in a major Japanese multinational firm, and working continuously until retirement. However, there was a parallel success story in Japan—that of poor rural persons graduating from junior high school, moving into larger cities to get jobs, getting married, and eventually starting their own businesses. This was the Japanese dream for ordinary families. This mostly disappears in the 1980s, largely as a result of declining self-employment. The reason for declining self-employment is difficult to pinpoint. One possible explanation is related to money: with increasingly difficult working conditions (such as mental health problems and longer hours), most people prefer the safety net that large firms provide. However, money is not the only explanation. Here, Professor Genda identifies another major factor: the family. Young, prospective entrepreneurs from the rural areas always had the security of knowing that if they did not succeed in setting up their own businesses in the city, they could always return to their family in the countryside. With the decline in agriculture, however, the rural family is no longer a source of security.
Professor Genda explained that sometimes, the motivation for independence comes from the reality of poverty. Poor youths, who cannot afford to go to college, have nothing to lose from starting their own businesses. However, poverty has not always been the driving force behind independence. There is the ever-increasing phenomenon of the leet—a “do nothing” youth who prefers leisure over work. Before the economic crisis, the leet tended to come from rich families—they were lazy because they could afford to be. Since the 1990s, however, the poor youth have vastly outnumbered the rich youth; these are young people from poor families who, in the face of declining economic prospects, are more likely to be discouraged from working. This will have negative consequences, as more will depend on government aid when their parents can no longer afford to support them. For many non-regular workers who have been dispatched, there is no family to go back home to.
Under such bleak circumstances, however, has been the rebirth of hope as a means of reinvigorating independence and security. In uncertain times such as these, people, fearing the unknown, grasp for something strong to hold onto. One-third of Japanese adults aged 20 to 59 say that they have no hope, or that they believe that hope is unattainable. Professor Genda’s main thesis is that we need to transform uncertainty into risk, and this can be done by increasing hope among the people. It is impossible to transform uncertainty into certainty, but people can stretch their imaginations and learn to articulate their uncertainties; this will empower them to face the future. As a means of studying the connection between hope and society, the University of Tokyo organized a Hope Program. The first task was to define “hope.” Professor Genda defined hope as a wish for something to come true by action. Instead of focusing on the broad and vague notion of “hope,” Professor Genda believes it is more helpful to focus specifically on the four elements of hope (wish, something, to come true, and action); this will help people articulate for themselves their own story and how to meet their hopes for the future. The key to helping people find hope is communication. Professor Genda said that one unique tendency of hopeful people who take action is that they are more likely to have experienced serious setbacks, and they are more likely to discuss their needs. This is significant: talking about setbacks in the past can also open up talk about hope for the future. Professor Genda emphasized the need to talk frankly about setbacks, with the appropriate humor, to help people take a brighter look at the future. Playfulness, then, is essential to finding attainable hope by taking chances.
Professor Genda finds one big hope in Japan’s aging society: the elderly people, who have experienced setbacks and obstacles, have valuable experiences that they can recount humorously to young people. Young people, feeling at ease by the humorous narratives, will listen. Such handing down of experiences empowers young people to take courage in the face of uncertainty and empowers them to take risks. Thus, the youth can find hope, not despair, in an aging society. Professor Genda refuses to take a pessimistic view of the fundamental changes in society that have been occurring since the 1980s. Rather, he expects a brand new culture in Japan to emerge after it overcomes the current difficulties. Based on an aging society, this will be the driving for a new economy in Japan. Japan should take advantage of this and use the aging population to encourage the youth to have hope in the future.
Janette Lee is a third-year J.D. student at Cornell Law School.
Critical and Theoretical Approaches to the Chinese Legal Reforms from Tiananmen to the Harmonious Society
Leila Choukroune, Assistant Professor HEC School of Management; Department of Law and Taxation at l'École des hautes
Wednesday, November 11, 2009
Professor Choukroune’s research interests include public governance and the internationalization of law, the legal aspects of international trade, the legal aspect of doing business in China and India, the internationalization of Chinese and Asian Laws, and business and human rights. An article "Harmonious Norms for Global Marketing: The Chinese Way,” will be forthcoming in the Journal of Business Ethics.
Talk Overview
by Herve Comeau
Professor Leila Choukroune has a PhD from Paris I Sorbonne and is a qualified lawyer to the Paris bar; she is also assistant Professor of international and comparative law at HEC Paris School of Management, arguably the best business program in Europe. Professor Choukroune gave a brief seminar on a critical and theoretical approach to the Chinese legal reform. She began her lecture with a quote by Liu Xiaobo, the Chinese critical intellectual and Human Rights activist who was arrested in 2008 and whose whereabouts the Chinese government has not divulged. In his article titled Tiananmen Paranoia Liu stated that, “Ever since the Tiananmen massacre, successive Chinese leaders have lived in a permanent state of paranoia and continue to treat even peaceful political groups as serious threats to their rule. This paranoia is worst at times such as this, in the immediate lead up to the anniversary of the massacre, when relatives of the victims are forbidden openly to pay tribute to the dead, dissidents are put under house arrest, and the Chinese media and Web sites are warned against making any mention of June 4.”
Professor Choukroune moved on to discuss the role of Economic modernity, social stability, and the normative tension in China. She characterized China in the 1990’s as seeking socialist rules of law, and trying to become a socially harmonious society. However, that society was and is principally a Marxist society and not a Confucian society as the Chinese government frequently relate themselves to. Professor Choukroune juxtaposed the image of the Chinese Olympic Games where the Chinese opened it by quoting Confucius and showcasing an extravaganza featuring 3,000 men dressed up as Confucian disciples, with the Eight Honors and Eight Disgraces written by President Hu Jintao; “Love the country; do it no harm. Serve the people; never betray them. Follow science; discard superstition. Be diligent; not indolent. Be united; help each other; make no gains at others' expense. Be honest and trustworthy; do not sacrifice ethics for profit. Be disciplined and law-abiding; not chaotic and lawless. Live plainly, work hard; do not wallow in luxuries and pleasures.”
So whereas the concept of socialist rules of law was the focal point of Chinese political discourse in the 1990’s, it is the Marxist principles of a socialist harmonious society that colors the dialogue of Chinese legal reforms today. Professor Choukroune characterized the Chinese use of disciplinary law as similar to Foucault’s idea of “institution disciplinaire,” but rather than be simply limited to prisons and small communities; it is applied to society as a whole. This is an attempt to create a society as defined by French philosopher Claude Lefort, where the government wishes to create a “fantasy of a society presumed to have overcome internal divisions. Everything is given over to the compulsion of producing unity, or rather the appearance of it. This compulsion is the real categorical imperative of totalitarian systems. (…) Now, totalitarian society has been, and continues to be, affected by democratic individualism. It is only intelligible against a background of democratic modernity.” Professor Choukroune utilizes the concept of the Peuple Un, or The One People, in order to explain China’s motivation in using disciplinary law as a weapon, and its refusal to adopt international legal standards.
However, China only maintains the semblance of an egalitarian society and not its actual principles. This fiction of harmony and justice has created disillusionment among the Chinese working class with judiciary. As a result the people have called for a return to mediation, and have sought to incorporate themselves into the legal system. Professor Choukroune gave several examples of Barefoot Lawyers, a Chinese phenomenon of self trained jurists, who have been arrested after having sought to implement Chinese legal protection of Human Rights. However, partly due to the increase to over six hundred law schools in China today, where there were zero twenty years ago, has brought glimmers of hope to Chinese workers who are being empowered with legal tools.
Herve Comeau is a second-year J.D. student at Cornell Law School.
Thinking with Culture in Law and Development: Examples from Nepal
Amy Cohen, Michael E. Moritz College of Law, Ohio State University
Wednesday, November 18, 2009
Myron Taylor Hall Room G85, 12:20 pm – 2:00 pm
Lunch will be served. Please RSVP to Donna Hastings at donna-hastings@lawschool.cornell.edu.
Professor Cohen teaches property, international dispute resolution, law and development, and mediation. Her research interests include dispute resolution theory and practice, particularly in international and transnational development contexts. Her recent scholarship explores how legal scholars and development practitioners are responding to the demands of globalization and neoliberalism through participatory problem-solving frameworks. She has worked on community development initiatives in Nepal, Thailand, and Ghana.
Morrison Foerster Practice in Japan, the US, and China: Dealing with Asian Legal Issues
Joel Haims and Karen Hagberg, Morrison Foerster US, and Xiaohu Ma, Morrison Foerster Beijing
Wednesday, December 2, 2009
Myron Taylor Hall Room G85, 12:20 – 2:00 pm
Lunch will be served. Please RSVP to Donna Hastings at donna-hastings@lawschool.cornell.edu.
US-based Morrison Foerster partners Joel Haims and Karen Hagberg and Beijing-based partner Xiaohu Ma, will discuss their practice in East Asia and related legal issues.
