Safeguarding the Boundaries of Right: Jerome A. Cohen’s Experience with Law in the People’s Republic of China

Safeguarding the Boundaries of Right: Jerome A. Cohen’s Experience with Law in the People’s... The Master said, “At fifteen, my heart was set upon learning; at thirty, I had become established; at forty, I was no longer perplexed; at fifty, I knew what is ordained by Heaven; at sixty, I obeyed; at seventy, I could follow my heart’s desires without transgressing the line.”1 It is no surprise that our present-day sage, Jerome A. Cohen (孔傑榮), shares a Chinese last name with the Great Sage (孔夫子).2 Indeed, Jerry—as he is quick to insist that people use his first name—quotes the above passage from the Analects in his contribution to this Retrospective.3 Although separated by thousands of years and miles, the excerpt from Jerry’s memoirs-in-progress illustrates how Confucius’s words resonate in Jerry’s life: a devotion to lifelong learning and a pursuit of humaneness (仁). At Fifteen, My Heart Was Set upon Learning . . . Born on July 1, 1930, Jerry’s interest in China is fitting, seeing as his birthday shares the same day, albeit not the same year, with the founding of the Chinese Communist Party.4 (He is quick to point out that the Party is older.) Jerry had firmly set his heart on learning by the time he was a teenager in New Jersey. China, however, was not yet in his sights. He would leave New Jersey after high school to obtain both a B.A. and J.D. from Yale University, after which he had the distinct honor of clerking consecutively for Chief Justice Earl Warren and Justice Felix Frankfurter. At Thirty, I Had Become Established . . . By the time Jerry turned thirty in the summer of 1960, he had taken his stand.5 He had just completed his first year on the Berkeley Law School Faculty and was rapidly establishing himself as a tour de force both as a teacher and scholar. Albeit my understanding is that, at twenty-nine, Jerry had a few rocky moments while finding his sea legs as a teacher: he reminisces with characteristic good humor on his early days in the classroom by recalling a student skit that involved the line, “Professor Cohen doesn’t just hide the ball, he doesn’t even bring it to class!” Jerry’s nonchalant reference to pursuing intensive Chinese lessons in 1960 downplays how daring this decision truly was. Given Jerry’s extraordinary legal pedigree, people could not believe he would devote his energy to anything as esoteric—or even nonexistent in the eyes of some—as Chinese law. A Chinese idiom counsels that, without entering a tiger’s den, how can you hope to fetch a tiger cub (不入虎穴,焉得虎子)? Likewise, Jerry saw the risk in directing his career toward China, but he also saw the potential for great rewards. He tackled the simultaneous challenge of learning a new language and legal system with aplomb. Jerry persevered with his incorrigible optimism and his “试试看” (have a try) attitude, sending a string of letters to top PRC leaders and not missing a beat when his overtures were met with years of silence.6 Perhaps the most remarkable feat from this early period of Jerry’s interest in China was his wife Joan navigating life with three young boys in Kowloon in an era when water shortages and other hardships were commonplace. Also taking a page from Confucius’s playbook, I understand that she “took her stand” in assuming decision-making power over living arrangements after that experience. As a mother of two young boys myself, I stand in awe at her resilience, adaptability, and good nature through it all. At Forty, I Was No Longer Perplexed . . . By the time Jerry turned forty in 1970, he was certain about his passion for pursuing Chinese law as a career but remained perplexed regarding how best to get a foothold in China. Jerry notes that normalization of relations on January 1, 1979, opened up opportunities for more frequent and extended visits to the PRC.7 But he had found creative ways to engage with the PRC long before this historical shift in U.S.–China relations: he interviewed anyone he could find who had lived in the PRC, read voraciously, and finagled short-term visits to the Mainland. Jerry was finally able to delve deeply into direct work with PRC officials in 1979. He was not merely “present at the creation” of the PRC’s turn towards law in the late 1970s, he was enmeshed in the process. After years of studying Chinese law, Jerry gained personal access to PRC officials by immersing himself in his role as teacher of foreign law. The collaborative nature of these efforts—with the students “occasionally helping as we sought to clarify the meaning of our poorly expressed attempts to convey complex legal concepts”8—underscores Jerry’s deeply held belief that you must listen to people at all levels of a legal system. I have been with Jerry at conferences in China with high-ranking officials, but he also makes sure to seek out the basic-level judge from a rural area, because he knows that this person has valuable first-hand experience with how the system operates, not just in theory but also in everyday practice. At Fifty, I Knew What Is Ordained by Heaven . . . Jerry would never be so presumptuous as to claim that he knew the mandate of Heaven. By 1980, however, it was clear that he was ordained to play a central role in the U.S.–China relationship. And he committed himself to this role with characteristic energy, acumen, and wit. Jerry was simultaneously structuring early Chinese–foreign joint ventures and acting as formal and informal teacher to future generations of China law scholars and practitioners. This work was not easy. Jerry has weathered many obstacles during his decades engaging with China. His anecdote about repurposing the funds from a Polish American law foundation to apply to China shows his creativity when confronting challenging circumstances.9 When faced with inevitable last-minute changes in plans on our many trips to China together, Jerry would give a puckish smile and comment, “按照情况灵活安排!” (“Act flexibly in accord with the circumstances!”) Jerry’s casual reference to other educational and professional pursuits during this time does not do justice to the tremendous multitasking of which he is capable. Periodic excavations of the piles in his office vividly evidence how many projects he often has afoot. Projects that, much to the frustration of people close to him, often pull his energy away from his memoirs. The short excerpt from his memoirs published in this issue addresses only his work with the PRC. Jerry’s career has also been deeply intertwined with events in Taiwan, Korea, and Japan, as well as regional dynamics including recent work on tensions in the East and South China Seas. At Sixty, I Obeyed . . . The excerpt from Jerry’s memoirs ends in 1981, but his involvement with China has continued unabated. By the time Jerry reached the age of sixty in 1990, he certainly was anything but obedient in a superficial sense of listening to what others, including the PRC government, wanted him to do. Nor was this kind of blind obedience what Confucius sought. The phrase that Confucius used to describe his view at sixty, “耳順,” is subject to varying interpretations, with alternative translations being “at sixty my ear was attuned”10 and “at sixty I heard [the mandate of Heaven] with a compliant ear.”11 All of these capture an awareness of and adherence to a greater purpose than short-term expedient gains. Underlying these two Chinese characters (耳順) is the idea of deeply held morals that are developed over decades. In the 1990s, Jerry embraced a greater purpose with vigor as he increasingly focused his energies on human rights and, in particular, China’s criminal justice system. This was in fact a return to his original work: Jerry’s 1968 book from Harvard University Press on the criminal process in the early years of the PRC remains today a valuable resource that carefully documents legal developments and ties them to broader historical trends in Chinese law.12 This book was followed in the early 1980s by translations of the new Criminal Law and Criminal Procedure Law. Human rights had been a concern throughout Jerry’s years in private corporate practice with him becoming personally engaged in a number of cases, particularly those involving U.S. citizens detained in China. After he joined the NYU Law Faculty, however, human rights took center stage. He has been unabashed in his refusal to be cowed by tacit or explicit pressure to avoid sensitive cases as well as in his refusal to pull punches when interacting with Chinese officials. Jerry will never be obedient in the sense of docile or tractable, but he is unwaveringly respectful and principled. At Seventy, I Could Follow My Heart’s Desires Without Transgressing the Line . . . By 2000, Jerry had combined teaching at NYU with hands-on projects that brought a stream of foreign legal academics and practitioners to China for close interaction with their Chinese counterparts. For example, when the PRC began to consider dramatic reforms to procedures in death penalty cases, Jerry spearheaded a project that introduced American practice with capital cases. This project was done with candor and self-reflection on the many failings of the American system: the worst kind of comparative law, Jerry advises, is an “apples and oranges” approach that compares our ideals with another country’s practice. Jerry was following his heart’s desires, and in doing so, he not only stayed on the right side of Confucius’s proverbial line, he also helped other people to see how they could make the legal system more humane. At Eighty . . . Confucius was unable to provide personal guidance on what he learned at eighty.13 If at seventy the Confucian milestone is not overstepping the boundaries of right, perhaps with eighty comes safeguarding those boundaries. Jerry is uniquely situated to draw on his over half-century of work with China’s legal system both to give credit where credit is due and to provide criticism when it is warranted. At a time when the human rights situation in China has deteriorated markedly, Jerry’s voice remains a clear reminder of what is the right thing to do. He is using his public platform to fortify the boundaries of right. Jerry also continues to lay the foundation of future generations of China law scholars and practitioners. As someone who is lucky enough to call Jerry a mentor and friend, I have witnessed personally his commitment to helping others develop themselves and then use their own voices to stand up for what is right and just. Jerry is, in the true Confucian sense of the word, humane (仁). And although I know that Jerry will dismiss any attempts to call him a sage, the following passage from the Analects aptly describes his tremendous contributions: Zigong said, “What would you say of someone who broadly benefited the people and was able to help everyone? Could he be called humane?” The Master said, “How would this be a matter of humaneness? Surely he would have to be a sage? Even Yao and Shun were concerned about such things. As for humaneness—you want to establish yourself; then help others to establish themselves. You want to develop yourself; then help others to develop themselves. Being able to recognize oneself in others, one is on the way to being humane.”14 Footnotes 1. Selections from the Confucian Analects: On Confucius as Teacher and Person, Colum. Univ. Asia for Educators 2, http://afe.easia.columbia.edu/ps/cup/confucius_teacher.pdf (last visited Oct. 12, 2017) (“[2–4] 子曰。吾十有五而志于學、三十而立、四十而不惑、五十而知天命、六十而耳順、七十而從心所欲、不踰矩”). 2. Jerry Cohen actually has two Chinese names, the second being 柯恩. I will save that tale for readers of his full memoirs. 3. Jerome A. Cohen, Law and China’s “Open Policy”: A Foreigner Present at the Creation, 65 Am. J. Comp. L. 729, 729 (2017). 4. The Chinese Communist Party was founded on July 1, 1921. 5. An alternative translation to the phrase “而立” from the Analects is, at thirty “I took my stand.” 6. Cohen, supra note 3, at 729. 7. Id. at 730. 8. Id. at 732. 9. Id. at 737. 10. The Analects: Sayings of Confucius (D.C. Lau trans., Penguin Classics 1979). 11. R. Eno, The Analects of Confucius: An Online Teaching Translation (2015), http://www.indiana.edu/~p374/Analects_of_Confucius_(Eno-2015).pdf. 12. Jerome A. Cohen, The Criminal Process in the People’s Republic of China, 1949–1963: An Introduction (1968). 13. Confucius is said to have lived from 551–479 BCE, thus dying at approximately the age of seventy-one. Selections from the Confucian Analects: On Confucius as Teacher and Person, supra note 1, at 1. 14. Selections from the Confucian Analects: On Humaneness, Colum. Univ. Asia for Educators 1–2 (bk. 6:28), http://afe.easia.columbia.edu/ps/cup/confucius_humaneness.pdf (last visited Oct. 12, 2017). © The Author(s) [2017]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Comparative Law Oxford University Press

Safeguarding the Boundaries of Right: Jerome A. Cohen’s Experience with Law in the People’s Republic of China

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Abstract

The Master said, “At fifteen, my heart was set upon learning; at thirty, I had become established; at forty, I was no longer perplexed; at fifty, I knew what is ordained by Heaven; at sixty, I obeyed; at seventy, I could follow my heart’s desires without transgressing the line.”1 It is no surprise that our present-day sage, Jerome A. Cohen (孔傑榮), shares a Chinese last name with the Great Sage (孔夫子).2 Indeed, Jerry—as he is quick to insist that people use his first name—quotes the above passage from the Analects in his contribution to this Retrospective.3 Although separated by thousands of years and miles, the excerpt from Jerry’s memoirs-in-progress illustrates how Confucius’s words resonate in Jerry’s life: a devotion to lifelong learning and a pursuit of humaneness (仁). At Fifteen, My Heart Was Set upon Learning . . . Born on July 1, 1930, Jerry’s interest in China is fitting, seeing as his birthday shares the same day, albeit not the same year, with the founding of the Chinese Communist Party.4 (He is quick to point out that the Party is older.) Jerry had firmly set his heart on learning by the time he was a teenager in New Jersey. China, however, was not yet in his sights. He would leave New Jersey after high school to obtain both a B.A. and J.D. from Yale University, after which he had the distinct honor of clerking consecutively for Chief Justice Earl Warren and Justice Felix Frankfurter. At Thirty, I Had Become Established . . . By the time Jerry turned thirty in the summer of 1960, he had taken his stand.5 He had just completed his first year on the Berkeley Law School Faculty and was rapidly establishing himself as a tour de force both as a teacher and scholar. Albeit my understanding is that, at twenty-nine, Jerry had a few rocky moments while finding his sea legs as a teacher: he reminisces with characteristic good humor on his early days in the classroom by recalling a student skit that involved the line, “Professor Cohen doesn’t just hide the ball, he doesn’t even bring it to class!” Jerry’s nonchalant reference to pursuing intensive Chinese lessons in 1960 downplays how daring this decision truly was. Given Jerry’s extraordinary legal pedigree, people could not believe he would devote his energy to anything as esoteric—or even nonexistent in the eyes of some—as Chinese law. A Chinese idiom counsels that, without entering a tiger’s den, how can you hope to fetch a tiger cub (不入虎穴,焉得虎子)? Likewise, Jerry saw the risk in directing his career toward China, but he also saw the potential for great rewards. He tackled the simultaneous challenge of learning a new language and legal system with aplomb. Jerry persevered with his incorrigible optimism and his “试试看” (have a try) attitude, sending a string of letters to top PRC leaders and not missing a beat when his overtures were met with years of silence.6 Perhaps the most remarkable feat from this early period of Jerry’s interest in China was his wife Joan navigating life with three young boys in Kowloon in an era when water shortages and other hardships were commonplace. Also taking a page from Confucius’s playbook, I understand that she “took her stand” in assuming decision-making power over living arrangements after that experience. As a mother of two young boys myself, I stand in awe at her resilience, adaptability, and good nature through it all. At Forty, I Was No Longer Perplexed . . . By the time Jerry turned forty in 1970, he was certain about his passion for pursuing Chinese law as a career but remained perplexed regarding how best to get a foothold in China. Jerry notes that normalization of relations on January 1, 1979, opened up opportunities for more frequent and extended visits to the PRC.7 But he had found creative ways to engage with the PRC long before this historical shift in U.S.–China relations: he interviewed anyone he could find who had lived in the PRC, read voraciously, and finagled short-term visits to the Mainland. Jerry was finally able to delve deeply into direct work with PRC officials in 1979. He was not merely “present at the creation” of the PRC’s turn towards law in the late 1970s, he was enmeshed in the process. After years of studying Chinese law, Jerry gained personal access to PRC officials by immersing himself in his role as teacher of foreign law. The collaborative nature of these efforts—with the students “occasionally helping as we sought to clarify the meaning of our poorly expressed attempts to convey complex legal concepts”8—underscores Jerry’s deeply held belief that you must listen to people at all levels of a legal system. I have been with Jerry at conferences in China with high-ranking officials, but he also makes sure to seek out the basic-level judge from a rural area, because he knows that this person has valuable first-hand experience with how the system operates, not just in theory but also in everyday practice. At Fifty, I Knew What Is Ordained by Heaven . . . Jerry would never be so presumptuous as to claim that he knew the mandate of Heaven. By 1980, however, it was clear that he was ordained to play a central role in the U.S.–China relationship. And he committed himself to this role with characteristic energy, acumen, and wit. Jerry was simultaneously structuring early Chinese–foreign joint ventures and acting as formal and informal teacher to future generations of China law scholars and practitioners. This work was not easy. Jerry has weathered many obstacles during his decades engaging with China. His anecdote about repurposing the funds from a Polish American law foundation to apply to China shows his creativity when confronting challenging circumstances.9 When faced with inevitable last-minute changes in plans on our many trips to China together, Jerry would give a puckish smile and comment, “按照情况灵活安排!” (“Act flexibly in accord with the circumstances!”) Jerry’s casual reference to other educational and professional pursuits during this time does not do justice to the tremendous multitasking of which he is capable. Periodic excavations of the piles in his office vividly evidence how many projects he often has afoot. Projects that, much to the frustration of people close to him, often pull his energy away from his memoirs. The short excerpt from his memoirs published in this issue addresses only his work with the PRC. Jerry’s career has also been deeply intertwined with events in Taiwan, Korea, and Japan, as well as regional dynamics including recent work on tensions in the East and South China Seas. At Sixty, I Obeyed . . . The excerpt from Jerry’s memoirs ends in 1981, but his involvement with China has continued unabated. By the time Jerry reached the age of sixty in 1990, he certainly was anything but obedient in a superficial sense of listening to what others, including the PRC government, wanted him to do. Nor was this kind of blind obedience what Confucius sought. The phrase that Confucius used to describe his view at sixty, “耳順,” is subject to varying interpretations, with alternative translations being “at sixty my ear was attuned”10 and “at sixty I heard [the mandate of Heaven] with a compliant ear.”11 All of these capture an awareness of and adherence to a greater purpose than short-term expedient gains. Underlying these two Chinese characters (耳順) is the idea of deeply held morals that are developed over decades. In the 1990s, Jerry embraced a greater purpose with vigor as he increasingly focused his energies on human rights and, in particular, China’s criminal justice system. This was in fact a return to his original work: Jerry’s 1968 book from Harvard University Press on the criminal process in the early years of the PRC remains today a valuable resource that carefully documents legal developments and ties them to broader historical trends in Chinese law.12 This book was followed in the early 1980s by translations of the new Criminal Law and Criminal Procedure Law. Human rights had been a concern throughout Jerry’s years in private corporate practice with him becoming personally engaged in a number of cases, particularly those involving U.S. citizens detained in China. After he joined the NYU Law Faculty, however, human rights took center stage. He has been unabashed in his refusal to be cowed by tacit or explicit pressure to avoid sensitive cases as well as in his refusal to pull punches when interacting with Chinese officials. Jerry will never be obedient in the sense of docile or tractable, but he is unwaveringly respectful and principled. At Seventy, I Could Follow My Heart’s Desires Without Transgressing the Line . . . By 2000, Jerry had combined teaching at NYU with hands-on projects that brought a stream of foreign legal academics and practitioners to China for close interaction with their Chinese counterparts. For example, when the PRC began to consider dramatic reforms to procedures in death penalty cases, Jerry spearheaded a project that introduced American practice with capital cases. This project was done with candor and self-reflection on the many failings of the American system: the worst kind of comparative law, Jerry advises, is an “apples and oranges” approach that compares our ideals with another country’s practice. Jerry was following his heart’s desires, and in doing so, he not only stayed on the right side of Confucius’s proverbial line, he also helped other people to see how they could make the legal system more humane. At Eighty . . . Confucius was unable to provide personal guidance on what he learned at eighty.13 If at seventy the Confucian milestone is not overstepping the boundaries of right, perhaps with eighty comes safeguarding those boundaries. Jerry is uniquely situated to draw on his over half-century of work with China’s legal system both to give credit where credit is due and to provide criticism when it is warranted. At a time when the human rights situation in China has deteriorated markedly, Jerry’s voice remains a clear reminder of what is the right thing to do. He is using his public platform to fortify the boundaries of right. Jerry also continues to lay the foundation of future generations of China law scholars and practitioners. As someone who is lucky enough to call Jerry a mentor and friend, I have witnessed personally his commitment to helping others develop themselves and then use their own voices to stand up for what is right and just. Jerry is, in the true Confucian sense of the word, humane (仁). And although I know that Jerry will dismiss any attempts to call him a sage, the following passage from the Analects aptly describes his tremendous contributions: Zigong said, “What would you say of someone who broadly benefited the people and was able to help everyone? Could he be called humane?” The Master said, “How would this be a matter of humaneness? Surely he would have to be a sage? Even Yao and Shun were concerned about such things. As for humaneness—you want to establish yourself; then help others to establish themselves. You want to develop yourself; then help others to develop themselves. Being able to recognize oneself in others, one is on the way to being humane.”14 Footnotes 1. Selections from the Confucian Analects: On Confucius as Teacher and Person, Colum. Univ. Asia for Educators 2, http://afe.easia.columbia.edu/ps/cup/confucius_teacher.pdf (last visited Oct. 12, 2017) (“[2–4] 子曰。吾十有五而志于學、三十而立、四十而不惑、五十而知天命、六十而耳順、七十而從心所欲、不踰矩”). 2. Jerry Cohen actually has two Chinese names, the second being 柯恩. I will save that tale for readers of his full memoirs. 3. Jerome A. Cohen, Law and China’s “Open Policy”: A Foreigner Present at the Creation, 65 Am. J. Comp. L. 729, 729 (2017). 4. The Chinese Communist Party was founded on July 1, 1921. 5. An alternative translation to the phrase “而立” from the Analects is, at thirty “I took my stand.” 6. Cohen, supra note 3, at 729. 7. Id. at 730. 8. Id. at 732. 9. Id. at 737. 10. The Analects: Sayings of Confucius (D.C. Lau trans., Penguin Classics 1979). 11. R. Eno, The Analects of Confucius: An Online Teaching Translation (2015), http://www.indiana.edu/~p374/Analects_of_Confucius_(Eno-2015).pdf. 12. Jerome A. Cohen, The Criminal Process in the People’s Republic of China, 1949–1963: An Introduction (1968). 13. Confucius is said to have lived from 551–479 BCE, thus dying at approximately the age of seventy-one. Selections from the Confucian Analects: On Confucius as Teacher and Person, supra note 1, at 1. 14. Selections from the Confucian Analects: On Humaneness, Colum. Univ. Asia for Educators 1–2 (bk. 6:28), http://afe.easia.columbia.edu/ps/cup/confucius_humaneness.pdf (last visited Oct. 12, 2017). © The Author(s) [2017]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.

Journal

American Journal of Comparative LawOxford University Press

Published: Dec 1, 2017

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