Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Monday, June 4, 2012

Imposing values

In my little corner of the intellectual universe, where we discuss Chinese law, issues of values are often intertwined with issues of facts and interpretation. One often-voiced mantra is the idea that we mustn't impose our values on others. This idea has too many problems for me to dissect them all in a single post (who are "we"? how do we identify the dividing line between "us" and "others"? what counts as "imposition"?). What I want to do here is point out one particular problem, which is that figuring out the values held by the Other is a difficult project. The Other is rarely homogeneous, and the result is that usually the values of the elite Other get taken for the values of the whole Other, leading of course to profoundly conservative results. (This is why elites love to be able to label someone an outsider and then assert that he may not impose his values.)

The Constitution of Japan turned 65 last month, and so it's a good moment for reflection on this document. It is almost without peer in the length of time it has lasted without formal amendment. Those who want to change it, in particular Article 9 (which commits Japan to pacifism), argue that it was imposed by MacArthur in the post-WW2 occupation. But David Law's argument in the ConstitutionMaking.org blog make a lot of sense to me:

MacArthur definitely did *not* have permission from Washington to write a constitution for Japan, but instead saw and seized an opportunity after the Cabinet proposed a deeply conservative document that the Japanese public rejected, and he ended up proposing something with much stronger popular support than Japan's own government could muster. Its longevity should therefore come as little surprise: what democratic constitution can endure for over six decades unless it enjoys enduring popular support? Therein ought to lie a valuable historical lesson for those who argue that constitution-making in post-occupation settings (Iraq, Afghanistan?) is about cutting deals among elites, popular opinion be damned. The lesson is: actually, the people do matter. If that's too much to ask, then one at least hopes that scholars won't draw from Japan the wrong lessons about the viability of "imposed constitutionalism".

Imposing something that has no local support is, of course, a dead end. But we ought to be cautious about making or accepting assertions that something has no local support, or doesn't resonate with the alleged values of an alleged culture. And of course arguing over whether something was imposed is a good way of deflecting attention from what people ought to be arguing about, which is whether it's actually a good idea.

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Great post!

Posted by: Dan | Jun 4, 2012 10:43:04 AM

I think this over-simplifies the actual debate, and in the process conflates what are two distinction complaints. The first complaint, the one you start off with, is one of imposing values. This is a different complaint from a complaint about the existence of something called Asian values. One can be concerned about imposition of values without necessarily endorsing a notion that there exists a distinct set of values that can are essentialistically Asian.

The other problem is that the complaint about imposing values is not a really complaint about using particular values to legitimate particular practices, which is what you focus on. It is really a complaint about using particular values to delegitimate particular practices -- to say, in effect this way, and no other. Here, your critique is actually more appropriately address to the proponent of the value, because it is the proponent -- not the resister -- that claims to be speaking (and generally from an elite perspective) authoritative for the whole of humanity. The resister, by contrast, is simple arguing that things are more complex than the proponent is willing to recognize.

Finally, I would take David Law's description of the Japanese constitution with a huge grain of salt. The general understanding about the effectiveness and the role that Japan's constitutional places in Japan's present-day political culture seems very much a minority view. In fact, there is an alternative argument, that I have heard Japanese make, which is that Japan's written constitution is largely irrelevant to Japan's actual political culture (the true reason it has not been amended, or enforced in the courts). If this is the case, then Japan's experience would lend support for the view that is exactly opposite of what you are arguing.

Posted by: Mike Dowdle | Jun 6, 2012 2:30:11 AM

"I think this over-simplifies the actual debate": Mike, Mike, this is a blog post, not a law review article!

"it is the proponent -- not the resister -- that claims to be speaking (and generally from an elite perspective) authoritative for the whole of humanity"

I don't know who you've been arguing with, but personally I never purport to speak for anyone but myself, or to claim that the values in question are other than my own. The whole business of arguing about the origin of values seems to me to be a complete red herring.

Posted by: Don Clarke | Jun 6, 2012 7:35:42 PM

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