When the longest-practicing and most venerated Western legal figure in China surveys the Chinese cultural landscape, reflects on the growth of the country’s legal community, and ponders the implications of the latest shuffling of national leadership, he sees a metaphor appropriate for his current gig as visiting professor at the University of Hawaii’s William S. Richardson School of Law.
"China’s leaders are sitting on a volcano," says Jerome Cohen.
A professor of law at New York University, co-director of the U.S.-Asia Law Institute and the first Western lawyer to practice in Beijing, Cohen was one of six prominent legal scholars brought to the UH law school to teach intensive specialized courses before the start of the new semester. Cohen will make a special public appearance at 5 p.m. Monday at the law school to discuss two recent high-profile legal and diplomatic cases in China.
Included in the discussion will be Cohen’s insights on last year’s delicate negotiations to secure the safety of Chinese dissident Chen Guangcheng, the blind, self-educated Chinese lawyer who helped expose the forced sterilization of women in rural communities in China.
Under circumstances even Cohen doesn’t fully understand, Chen escaped from house arrest and made his way to the American Embassy in Beijing. Cohen directly consulted with Chen and worked with the U.S. State Department and Chinese leaders to come up with a face-saving solution to the budding international crisis.
After a series of stranger-than-fiction twists and turns, Chen was eventually allowed to leave the country. But even Cohen isn’t sure what strings were pulled and by whom.
It is, as Cohen knows well, the nature of international diplomacy in a country where the rule of law is sometimes conveniently dismissed as just another foreign import.
Cohen, long a believer that greater rule of law can help China realize its vast global potential, said the impending turnover of power that will occur when Chinese President Hu Jintao leaves office in March has the potential to vindicate the faith of generations of Chinese citizens who have become increasingly reliant on an imperfect legal system to offset the arbitrary rule of local government and the reflexive repression that has quashed efforts to pursue social justice.
"It’s an enormously exciting time in China," Cohen says. "You have a new leadership and you don’t know which direction you’re going to go in."
Cohen says there are hundreds of thousands of attorneys, prosecutors and judges now working in China, 300,000 or so Chinese students who take the bar exam each year, and a critical mass of party officials who operate as legal specialists.
"So you have a rising tide of interest, awareness and education in the law," Cohen says. "It has been seen as a very hot ticket. And yet a lot of people have been disillusioned by what’s happened in practice. Many hopes for legal reform were lost in the last five years or so. It’s been a kind of reversal of interest in law under the now-departing Chinese leadership. Many people hoped to develop an independent court system and rule of law that would place government and the Communist Party under the rules of society. Instead, there has been a contrary and repressive spirit and paranoia among leaders, even as people are demanding a better legal system."
Cohen says Chinese leaders are "quite adept" at quelling public discontent with token concessions while at the same time applying repressive measures that consistently come into conflict with the human rights expectations of the countries with which they are increasingly politically and economically engaged. Still, Cohen says, a more informed, more connected Chinese populace is making it harder to perpetuate such repression.
"There are people, especially poor people, who don’t have the money connections that successful entrepreneurs have, and when they are the victims of arbitrary local rule, and when they see that the rules that are in place are not enforced, they are not afraid of rioting, or as they say, of ‘mass incidents.’
"There is a rising tide of demand for a more law-abiding, fairer system of justice," Cohen says. "In the age of the Internet and of blogging and texting, the people don’t think they have to be pushed around anymore. All this is creating a better ferment for a better legal system. Leadership needs to respond in a more positive fashion than trying to repress everybody using criminal injustice in the name of harmony. If they don’t, there are people who believe it will lead to a lack of harmony, to put it mildly — a mass revolt of some kind."
Cohen fears another possible scenario: Chinese leadership diverting attention away from internal political strife and toward something external that can be used to mine nationalistic fervor. A conflict with Japan in the South China Sea, perhaps.
Whatever the immediate future holds, Cohen — who helped initiate Richard Nixon’s historic visit to China, founded the East Asian legal studies program in the U.S., brokered deals with Western corporations that helped to transform China into a global economic power and continues to play an integral role in addressing human rights abuses and the disposition of political dissidents in China — freely allows that change will never come easy in a country where complex social forces, political frameworks, and cultural and economic crosscurrents interact in ways that may never be fully appreciated or understood.
Such is not the broad stroke of an armchair Orientalist but the insight of a career-long participant of closed-door negotiations and a fly on the wall during conversations that never officially take place.
"There is a large sense of disappointment in Hu Jintao and other current leaders and there is hope that the new guys can do better," Cohen says. "But even if they are willing to take on the challenge, there are so many entrenched interests, so many people who benefit from the existing situation, that they don’t want to see change. And these people are very good at derailing change.
"What we will witness now at best will be a struggle," he says. "It will take very specific forms and there will be landmark outcomes."