Sunday, July 5, 2009

Rule Of Law vs. Rule By Law 法治與人治

Being an immigrant from Taiwan which has a very different culture and custom, it took me quite some time before I can appreciate the American legal system beyond what is portrayed in Hollywood dramas or reported and discussed in news. Born into Chinese society which has a long history of promoting the ideal of benevolent ruler who could see clearly right from wrong and uphold justice perfectly, it was not difficult for most Chinese to accept the notion of “Rule BY Law” as an ideal since the Republic. There is a significant difference however between the concept of Rule by Law and Rule of Law which is the true universal ideal today. The latter seeks to constrain government power and protect the freedom of people, while the former is merely one of the tools of government that can sometimes be abused to suppress people.

As a necessity, each civilization has obviously developed its own legal system or rules in history to allow its society to progress orderly and resolve conflicts as needed. For China, Legalism school of political philosophy法家was developed early and blossomed around 2500 years ago during the Spring-Autumn and Warring State 春秋戰國Periods for social, economic and political reforms. When the First Emperor Qin秦始皇successfully unified China in 221 BCE and adopted Legalism as the principle of its government, there is a far reaching and long lasting impact on Imperial China for the following 2100+ years. While Qin dynasty did not last long, it showed a way of rule by law by a supreme leader with a centralized government supported with harsh rules to force people into submission including techniques such as “collective responsibility and punishment”. Subsequent dynasties, learning from Qin’s failure, combined ideas of Confucianism and Legalism to rule the land in a far more sustainable fashion. Nevertheless, as Imperial China began its modernization and attempted to revamp its legal system in mid and late nineteenth century, it looked to the west through Japan who had imported the Civil Law system from Germany during Meiji Restoration in 1868. Till today, the legal system of Taiwan still follows mainly the Civil Law traditions with several evolutionary changes in last decade.

A little digression is in order. The philosophy of law or jurisprudence aside, design, implementation and practice of laws is equally important. Today, there are two dominant non-religious legal systems – Common Law and Civil Law, both are products of western civilizations with their roots traced back to Greece and Roman Empire. The representative countries where Common Law system is practiced include Great Britain and U.S. while Germany and France are representative countries where the Civil Law system is practiced built on the 1804 Napoleonic Code of France which was written in accordance with the principles of French Revolution.

While both systems accept the Rule of Law as the fundamental concept, they take very different philosophy and approaches to the substantive and procedures parts of law. First off, Common Law system is built on and balanced with the notion of equity and custom through case laws and procedural fairness. New rulings serve to continue enhancing and evolving the existing ones. In comparison, Civil Law system begins with codification of laws. New codes nullify the old and jurists’ function is to apply the existing laws to particular cases.

Further, in Civil Law system, an inquisitorial process is used where judges play a principal role who investigate the facts, uncover the truth, and figure out the most applicable statue and demonstrates through logical deduction how it applies to the particular case at hand. Meanwhile, the attorneys’ primary role is to argue before the judge what interpretation of the statute and facts lend themselves to best their clients. On the other hand, the common law system employs an adversarial process where persecuting and defense attorneys represent their clients and compete to “win” with possibly hostile cross-examinations, while judges serve as referee to insure the integrity of the proceedings and proper applications of laws; the hope is the truth shall be exposed through such a competing process.

There have been academic studies of pros and cons of each system, but the reality is both systems have been practiced for a long time yielding reasonable overall results in many countries in Europe and in U.S. For countries which look to borrow experience and adopt a system, the choice is often more of proximity and the familiarity of particular social customs and traditions. Today, Taiwan continues to follow the Civil Law system but the results appear to be less than satisfactory with a lack of trust and confidence by people (By the way, Japan doesn’t seem to do any better). To give you a feel for the maturity of the system, while there is no right number for number of lawyers in a society, the number does suggest the extent the practice of legal system is involved and embedded into the daily life of a society. According to American Bar Association, number of active lawyers in U.S. currently is over 1.1 million or one lawyer for every 275 people, the highest in the world. In comparison, there are about 6,000 active lawyers in Taiwan that translates to about 1 for every 4,000 people.

My suspicion of the first issue with Taiwan’s legal system of lack of credibility begins with the intuitive idea of procedural justice or the lack of. It has long been recognized that the best way to help achieving fairness outcomes from all angles and aspects is to have a transparent and fair procedure. With a well-designed procedure, the impossible and hopeless argument of if a particular outcome is fair (according to ME) can be shifted to if the procedure is fair for which one has a chance to fix and improve. This is particularly critical in Common Law system and is called by some Natural Justice. The importance of such a due process that protects individual’s right is in fact written into the constitution in U.S.

The importance of procedural justice cannot be understated. It is way too easy for us, rightfully so, to focus on the outcome and pass our judgment on moral question of what is just. In the recent Oscar winning movie The Reader, there is a scene of German law school class after WWII where the professor discussed with students concept of law: “It is not a question of right or wrong. It is the question of it is legal or not.” This may sound extreme, but I hope you would agree that only if we are willing to start from such a point of view, then we can hope to stick to the principle of Rule of Law. We will then be able to focus on fixing the root causes of the problems as opposed to the symptom of it in a particular case. Only then we can hope to incorporate compassion, custom, and common sense into a legal framework that people in the society can live by freely with acceptable balances. Only then, we can hope to escape from the unsustainable belief of “right” outcome can be achieved by having the “right” people.

By the way, one way to take a snapshot of a society’s attitude to the legal system is to watch popular TV legal drama series (excluding reality court shows like Judge Judy and SciFi or super hero stories). In U.S., Law and Order is the longest running prime time American TV legal drama series debuted in 1990 with 433 episodes. Indeed it is so successful that it has become a franchise with two successful spinoffs thus far and generates over 1 billion dollars of revenue annually. The show explores the human and societal issues from multiple perspectives: law enforcement – police and district attorney’s office, judges, and defendants and defense lawyers. The outcome is not always just to each of us but could left scars on all involved as in real life. It provides both the drama and challenges the viewers with issues that one may not have thought about before.
In contrast, the all time most popular TV series drama in Taiwan is Cases of Bao Gong 包公傳, based on stories of Bao Gong 包公 (999-1062ACE) who was the chief administrator and justice of the capital of Northern Song Dynasty about 1,000 years ago. The TV series debuted in April 1974 and aired for 350 episodes till Nov 1975. Each episode goes through a case story where Bao Gong and his assistants investigated cases, uncovered the truth, found the guilty, punished the criminals, and delivered or restored justice. Three themes were apparent throughout all Bao Gong cases: a)Bao Gong was never in err and used all interrogation and investigatory techniques including torture cleverly, b) equal justice to all except for the emperor from whom Bao Gong derived his absolute unequivocal judicial power, c)the victims and their families/friends and average citizens were extremely grateful and regarded him as God of Justice包青天. Incidentally, the popular symbol of western justice is the Roman Goddess Lady Justice who wears a blindfold (impartiality), carries a sword at her right hand (enforcement) and a scale at her left hand (fairness).

I was also one of those fans (that included Chiang Kai-Shek and the First lady!) before I left for America to study in graduate school. I still recall this series was so popular that one had hard time finding taxi during the prime time the episodes were aired. Almost two decades later, CTV (Chinese Television Service 中華電視公司) remade it in 1993 Feb which was met with another sounding success and ended up with another 236 episodes. To me, it reflected to some extend the slow progress of the understandings and practice of the Rule of Law in Taiwan. Judging from the never-ending political fights and media amplifications of the ongoing trial of former president Chen Shui-Bian, I would not be surprised if a show like Cases Bao Gong would still draw huge audience now.

Yes, you may have detected by now that somewhere during the last 35 years, I have been transformed from a fan of “Cases of Bao Gong” to a fan of “Law and Order”. I now understand the important difference of Rule Of Law and Rule By Law. I now understand that Rule of Law is very much a necessary condition for democracy and freedom of people. I now understand that one must get the basic concept right first and that one must focus on the question “is it legal?” before addressing seriously “is it just?”

Law is not a theoretical or an abstract notion or tool. It is an integral part of a society and as such, the implementation and practice of it tells us all our attitude and maturity. As long as we spent most of our energy debating and arguing the outcomes regarding simultaneous considerations of “Compassion, Rationality, Legality” 情理法, it suggests we are still a land of at best Rule By Law, away from the ideal of Rule of Law. We will then risk of being ruled by individual power and abusive government above the law under the disguised of law. As long as we continue to judge ourselves by the outcomes alone, evade transparency, and take short cuts to selectively apply laws to achieve “desired” outcomes, we will not be protected from abuse of power. Worse, the ideal of democracy and individual freedom will remain to be illusive and unsustainable.

Ok, enough of this serious discussion. Before I go, here is a Yotube video of the original 1974 title song of the TV series Cases of Bao Gong for your enjoyment. Talk to you soon!

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