Author: Martha C. Franks
My course on American Law began with the question “What is Justice?” The students laughed and rolled their eyes, remembering discussions on Plato from their Humanities class the previous semester. There were several Socrates jokes. I was glad of this immediate association. In the American Law class, my plan was to make vivid for them why people are still arguing about this question twenty-five centuries after Plato put down his pen.
My first assignment would be the American Declaration of Independence. After a brief history lesson on the context of the document, I asked them: are revolutions against the law? The students responded with historical observations, even a few arguments, but when I pressed them on the pure philosophical question, they went quiet. I could hear minds furiously calculating, “Yes, of course, revolutions are against the law, but they are the work of heroes! Like the 1949 revolution and Chairman Mao. What about revolutionary unrest today, though? That’s bad! I think.” Concluding that the question was unanswerable, they sat silent. I was not unhappy as I handed out copies of the Declaration. It seemed to me that the force of the question had awakened curiosity.
I was late to our second class, not being used to the new semester’s schedule. My students were hanging out in the hall, locked out. Locks were everywhere at the Affiliated High School of Peking University, or Bei Da Fu Zhong, although for the most part, they were not effective. Everyone in the school knew of certain windows and doors that could be propped open or otherwise jimmied, so the locks never seriously impeded anyone. Lots of things seemed to be like that in China. Draconian obstacles and prohibitions were there in theory, but people routinely found their way around them. A rule was not what the authorities said, but what they chose to enforce. As a teacher of law, in which the question of the exercise of authority is absolutely central, I found the situation interesting.
Once in the classroom, I wrote on the whiteboard the word “Authority.” I asked them where authority came from.
A few ideas trickled in uncertainly.
“Your parents? Your friends? The Government?”
Faster now.
“Books? Tradition? Logic?”
I wrote all these answers on the board, and asked: if someone like Thomas Jefferson were part of a revolution, which of these sources of authority would he or she look to? Hesitantly, they hammered out that a revolutionary could not look to the government she wanted to overthrow, and probably not to her parents. Probably not tradition, either, although it could go both ways; loyalty to government was one tradition, but if the government was itself violating tradition there might be a loophole. Friends, logic, and books, yes. “What about Nature?” someone broke in excitedly, “Isn’t that a source of authority?” It went up on the board.
So far, the conversation had been calm and even wary, so I was unprepared for the burst of sudden excitement when we got to the Declaration itself. A crowd of questions leapt up around the line, “We hold these truths to be self-evident, that all men are created equal . . . .”
Passions ran high. Apparently, there had been arguments in the dormitory the night before. Some students thought that the Declaration was right and that equality among people was in fact self-evident. “Look at tiny babies. All are the same,” they argued. Others thought it was self-evident that people are not equal. Some are tall, some are smart, some are artistic, and some are musical. Everybody is different! Does being equal mean being the same? Even if not, how can you say that anything is self-evident about it? Maybe the smarter people are just better. Certainly, it’s the smarter people you want running the government. But people who think they are smart can be the stupidest of all. The practical workers should run the government.
I had dropped out of the conversation, but pretty soon they all turned to me to show them the way out of this disagreement. They were disappointed when I only complimented them on their arguments and handed out the United States Constitution. I wanted them to live with disagreement in the air.
Alas, on its face the United States Constitution is not a riveting document. As constitutions go, it is blessedly short, but it is written in the language of lawyers. When the strategy of the document became clear to my Chinese students, they were doubtful about it. They weren’t sure they liked how the American system relied so strongly on legal structures and procedures rather than on people. It sounded inhuman.
I had led up to the American state documents by way of the Enlightenment, which they had studied in other classes. Enlightenment ideas, I claimed, especially economic ideas, abandoned the search for virtue in human beings, and sought to use human greed and ambition as an engine for a prosperous society. So the Constitution does not try to find a virtuous and competent President, or Congress, or Judiciary. Everyone hopes that these officials will be virtuous, but the government does not depend on their virtue. Instead, it sets up legal structures and procedures whereby these three branches of government will police each other.
This is the heart of the doctrine of the Separation of Powers. The great insight is that human beings must stop looking, fruitlessly, for good and trustworthy rulers. No one can be trusted with power. In that predicament, the writers of the United States Constitution believed, the only thing to do was to invent procedures that will contain the inevitable quarrels among people seeking power and make those quarrels productive. Such a system should work whether the people in charge are good people or whether they are awful people.
My students rejected this idea. They were sure that lots of people would do competent and honest, virtuous work, so that good government only required finding those virtuous people and putting them in charge. I tested this belief with as many questions as I could think of. “Do virtuous people want power?” I asked. “What kinds of people do want power?” They were taken aback by these challenges. I wrote on the whiteboard a saying that is very famous in Western political thinking: “Power corrupts, and absolute power corrupts absolutely.” People would object, bringing forth different arguments to try to prove that saying false. Many of those arguments revolved around education.
“If a person has a good education,” a student would assert, “they will do right. They will not be corrupted by power.” So, I responded, “You are saying that education teaches virtue? Can virtue be taught?” They laughed, recognizing the question from their study of Plato’s Meno in the previous semester. I was glad to have them see, in the context of our class, American Law, why people care so much about that question. If virtue could be taught, and we knew how to teach it, societies would not need doctrines like the Separation of Powers. So, I asked, what kind of education will cause people to become the good people you need in order to have good government and a good society? Like Plato, we reached no clear conclusion. Even historical examples did not help. History is full of efforts to teach character and does not show many obvious successes.
Student papers on these topics were wonderful. One student offered a theory about why the American approaches to law might not feel right to China. He compared the United States and Chinese Constitutions, laying both the similarities and the differences at the feet of Confucius. The Chinese Constitution, this student pointed out, has clauses guaranteeing freedom of speech and freedom of the press, but somehow those guarantees do not play the prominent public role in mainland China that they play in America. This student argued that this has come about because the checks and balances of the United States Constitution do not seem admirable when approached from the point of view of Chinese tradition. Laws should not control human beings, because, for Confucius, the ideal is to be good enough that you don’t need laws.
Other papers showed hugely mixed feelings about the ideas we had aired together. Some thought perhaps it was good to have competing centers of government, making for shifting alliances and divided political debts. But such an arrangement was inefficient and disorderly, some criticized. Then again, another argued, inefficiency might be a good thing in government.
Well, they were all thinking, so my job was done.
(Martha C. Franks is an attorney and a part-time faculty member at St. John’s College in Santa Fe, New Mexico, USA. Ms. Franks taught high school at the Affiliated High School of Peking University, or Bei Da Fu Zhong (北大附中, BDFZ) during the 2012–13 and 2013–14 academic years. She has written a book on the experience, Books Without Borders, which will be published at the end of 2018).