THE ANALECTS OF ARISTOTLE (PART II)

ABSTRACT

A central premise of Western liberal rights theories is that an individual’s liberty is bounded by the limit at which its exercise harms another against their will (the ‘No Harm’ principle). Modern climate science demonstrates that one community’s carbon emissions risk serious harm to the welfare of other communities. We look at the convergence between Western communitarian liberal rights theories and traditional Chinese values which place the interests of the community above the individual and examine how climate change and environmental litigation globally is seeking to harness human rights law to protect against environmentally degrading activities against the background of the machinery of the UN Framework Convention on Climate Change. We also look at the ancient and modern jurisprudential and legal background in China which may inform how China may be an actor in the efforts to address climate change within the scope of the rules based international system from which the USA is currently stepping back.

Introduction

The ‘No Harm’ principle states that the limits of freedom in society should be set where one individual’s exercise of freedom harms another involuntarily. In the Law of Nations, the principle has been extended to state actors, and as a general maxim, it is an easily defensible cornerstone of liberal theories of rights and responsibilities. The devil, however, is in the detail of where the lines are to be drawn and the respective weight to be given to group and individual interests in the formula. 

Until the discovery of the ill effects of passive smoking, those of us who wished to, could blow smoke rings in public with gay abandon: not so now. To apply the No Harm principle to being stopped from driving without a seat belt requires a more expansive and indirect definition of collateral damage to recognise the extra costs for the funders of public healthcare as a harm to be averted. The involuntary collateral damage caused by Burkha wearers to the Great Uncovered has yet to be satisfactorily explained and tends to get entangled in the issue of whether the wearers themselves have truly volunteered, or have been subjected to it, because it was good enough for Mum and therefore automatically O.K. for you too, my dear. But let’s not go there right now.

In this piece we shall look at how the law in Europe, the USA and China is responding to the possibilities to prevent and punish actions that cause harm to people by degrading the environment. But first, we are going to make a brief tour of current themes in Western liberal rights theories and make some comparisons to a Confucian approach in search of the best fusion cooking, when it comes to harnessing the law to help avert climate change and its ill-effects. We shall then end by looking at evolving international climate change law, before going on to look at how it is best made and applied, in Part III.

How can it be ‘Just for You’ and ‘Just for Me’ at the Same Time ? 

In ‘Justice: What’s the Right Thing to Do ?’ Michael Sandel bags up the current state of competing liberal rights theories and stakes out his own territory within them as follows. ‘…we’ve explored three approaches to justice. One says justice means maximizing utility or welfare - the greatest happiness for the greatest number. The second says justice means respecting freedom of choice – either the actual choices people make in a free market (the libertarian view)[1], or the hypothetical choices people would make in an original position of equality (the liberal egalitarian view). The third says justice involves cultivating virtue and reasoning about the common good. As you have probably guessed by now, I favour a version of the third approach.’.

The reason Sandel sees the first two standpoints as inadequate is that “ According to these theories, the moral worth of the ends we pursue, the meaning and significance of the lives we lead, and the quality and character of the common life we share all lie beyond the domain of justice.”

We looked in Part I at a list of private and public virtues that Confucianism values, so it is immediately obvious that there is a common aspiration here ,both East and West, to cultivate virtues conceived as contributing to the common good. What remains to be understood is how far there is consensus as to what the desired virtues should be and the nature of the common good that they are hoped to engender.

If Confucius and Lao Tzu stand for Eastern values, it is Aristotle (‘rechipped’ to remove some ‘bugs’ about his views on slavery in particular) who lays the ground for Sandel, with the simple proposition that the purpose of justice is to see to it that people get what they deserve. But stated that way, this is a theory that explains everything, and consequently explains nothing. So, it is necessary to explore Aristotle’s conception of justice, the civic virtues he considered it should reward and its implications for an ideal polity, so we can see how the comparison to classical Chinese thought stacks up.

A common starting point to the views of Confucius, Plato and Aristotle was that an ideal polity requires a class suitably qualified to govern. All of them would no doubt have agreed with Winston Churchill’s less well-known remark about democracy[2], which is that the best argument against it is a two-minute conversation with a voter. Conscripts of Jury Service have had similar things to say about the hallowed status of judgment by our peers.

Plato’s views helped make democracy a dirty word and oligarchic rule topped by mainly bad impressions of his idealized philosopher kings (with the later steroidal addition of ‘Divine Right’ on their side) the norm in the West for centuries. Plato predicted that democracy was bound to descend into mob rule and chaos to be replaced by tyranny. This was a cycle that both the French and Russian Revolutions manifested[3].

The challenge of Western liberal thought to avert that fate has been to develop functioning representative democracies balanced by a triangular separation of powers (legislative, executive and judicial) designed to serve Aeschylus’ 5th Century BCE exhortation ‘ Let no man live uncurbed by law or curbed by tyranny.’. In the words of Jonathan Sumption[4] this ‘ message is timeless and it’s universal. Law is not just an instrument of corrective or distributive justice, it is an expression of collective values and an alternative to violence and capricious despotism.’. That holds equally good whether the government whose despotism is to be averted is elected or not, so the common ground and differences in those collective values has more to tell us about whether civilizations will fight or dance together, regardless of governance. Only if ‘ Live and Let Live’ is not part of those values need the risk of conflict be acute.

Aristotle, much like the Buddha, espoused and defined virtue as a middle path between opposing vices - courage as the mean between rashness and cowardice, and so on. For him the highest aim of political association is to cultivate the virtue of citizens. However, ‘” He rejects the notion that the purpose of politics is to satisfy the preferences of the majority.”[5] . Unless some fundamental rights are agreed, defined and protected from the whims of majorities ‘The danger is that the demands of democratic majorities for state action may take forms which are profoundly objectionable, even oppressive, to individuals or to whole sectors of our society.”[6]

 For Aristotle, as AC Grayling explains[7] “… a key point was that any constitution has to be one that embodies the rule of law. The kind of democracy most disapproved of ‘is where the mass is sovereign and not the law. This kind arises where dictats are sovereign instead of the law, which happens because of demagogues. In law-abiding democracies demagogues do not arise; on the contrary the best citizens guide, that is because the demos becomes a monarch, one person composed of many, for the many are sovereign not as individuals but collectively’”[8].

The essence of the rule of law is to limit public authorities’ and other citizens’ power to coerce us to what the law permits, ensure that the law provides for a basic minimum of rights to be protected and provide transparent access to an ‘independent’[9] judiciary to police this. 

The difficult challenge is to define what those minimum rights should be, state how and by whom they should be set, and with what possibility for them to be recalibrated to reflect evolving mores and scientific understanding over time. A second difficult issue is how far the notion that persons should have the requisite virtues to govern (as Aristotle and Confucius believed ) can be accommodated, by defining appropriate measures of merit without accidentally creating a self-perpetuating oligarchic ruling class.

In a democratic set-up the general idea is that the elected legislature should make the law and judges say what it is, rather than what it ought to be. In America that idea has been gummed up by the Founding Fathers’ formula deteriorating into all checks (or cheques) and no balance in the legislative body so that an overtly political cadre of Supreme Court Justices selected for a life tenure, lay down what the law ought to be . The gun and food lobbies have seen to it that the rights to bear arms and fat legs remain stuck in a legal constitution framed for a different age, and same sex marriage and termination of pregnancies has been legislated for by a judge-made evolution of views that were nowhere in the mind of the framers.

In the UK we have a political constitution, based on what has been called ‘an understanding that nobody understands.’ . Recently (and after Lord Sumption’s lectures) we have seen this more organic system’s potential for self-correction spring into action with a quick succession of events. 1) A referendum imposing a ‘majoritarian’ view[10] 2) Parliament stymying the Executive 3) The Courts stopping the Executive bypassing Parliament, and 4) A general election cloaking that majoritarian view with legitimacy (in a way that a direct democratic contest by referendum had not) by conferring a fresh mandate on elected representatives.

It may be Blasphemy, but is it Blas for you?

We saw in Part I a list of Confucian virtues[11] identified by Confucian scholar Professor Chenyang Li who notes that (as any reader of China Daily will readily see) the contemporary Chinese Government remains influenced by the traditional view that government as representative of the community bears ‘responsibility for molding values and elevating the moral character, spiritual outlook, cultural constitution and general etiquette of its citizens.”.

A more cynical view of the realities of government in ancient China was expressed in a centuries old letter from a high-level official in Jiangsu province to his son as follows: - “Rule #1: Your objective is not to find the truth but what’s right for you. Your superior is always right. Rule #2: You should not only learn how to tell a lie but be really good at it. The careers of a hooker and an official are very similar. The difference is an official is betrayed by his mouth.”.

Today ,as we shall see, official corruption and its elimination are major preoccupations of the Party ,going hand in hand with a centralization of power and a perception that it is provincial and local governments as well as the decentralized court system, where the problems mainly reside. As part of this process, corruption within the Party has been moved from an entirely opaque system of Party discipline and detention in special centres, to be within the purview of the Rule of Law and the less opaque court system (in each case with Chinese characteristics).

In western democracies ,in contrast, it has always been laws, as enshrined in constitutions and/or enacted by the legislatures and crafted in the common law courts that have contained and provided the delivery mechanism for the ethical content of corrective and distributive justice, rather than moral tutelage being directly the role of executive government (except by way of the executive contracting international conventions concerning, human, social and economic rights).

In a search for points of concordance, so that the law (especially international law) can evolve as a harmonious expression of collective values respectively in China and the West, it is worth highlighting four elements of Confucian values that are not so strongly expressed in modern western outlooks. These are :-

Filial piety (xiao shun 孝顺),

Etiquette (zun li 遵礼),

A sense of shame (lian chi 廉耻

Harmony (he mu 和睦).

Whilst ‘Honour thy Father and thy Mother’ is, of course, a Commandment and ‘ Manners Makyth Man”, the fourteenth century motto of the founder of New College Oxford and Winchester College (Bishop William of Wykeham), respect for elders, good manners and a strong sense of family as the very foundation of society ,are much eroded in the West compared to a Confucian role ethics prescription that holds “ Simply put, when family reverence is functioning effectively within the home, all is well with the community, the polity, and indeed the cosmos.[12]” .

In addition, the combination of harmony being elevated to an ethical value in its own right and a more highly developed sense of shame in Chinese and East Asian culture, perhaps gives rise to a distaste for adversary politics and litigation, as well as a failure to value openness and regard daylight as the best disinfectant.

In China (as a millennia old civilization state lacking the background of religious wars, persecution, competitive colonialism and genocide that is in the DNA of western nation states) a more natural emphasis of communal over individual rights and the continuation of imperial rule by other means (with the Party as the twenty first dynasty) is more congruent with its history than it could possibly be in the West given the grisly record of efforts at one party rule and its degeneration into totalitarianism that occurred for us in the twentieth century.

The challenge in the West is to produce harmony and a broad consensus from adversarial representative democracy, tolerant of diversity (except for the intolerant kind) and with a broadening application of the No Harm principle to protect communities, somewhere in the mix.

The technocratic drift and shying away from moral debate amongst liberal thinkers noted by Sandel in Democracy’s Discontent allowed space to be occupied by a mix of Evangelical and neo-conservative views in the United States against a background of rising inequality and large segments of the population feeling disenfranchised. This made way for demagoguery and populism ,as well as resurgent nationalism.

Whilst consumerism and the markets as God may have left a spiritual and moral vacuum in both China and America , the problem of what values to repopulate it with is producing greater polarity, tribalism and identity politics in America and the West than in China and East Asia.

Social and cultural psychologist Professor Jonathan Haight[13] conducted revealing research on the psychology and values of liberals and conservatives in America to draw conclusions and make a prescription for a more harmonious and inclusively pluralistic zeitgeist there, which borrows lightly from Eastern thought, but with western characteristics. He suggests ”liberals and conservatives are like yin and yang – ‘both are necessary elements of a healthy state of political life’, as John Stuart Mill put it.”.  Haight’s formula looks to balance libertarian sacralization of individual liberty and conservatives’ sacralization of certain institutions and traditions, with liberal concerns for social care, and their conviction that governments can and should restrain ‘ corporate superorganisms ‘and that some big problems really can be resolved by regulation. This chimes with Sandel’s perspective that there is a place for loyalty to and the rights of communities , family and nations within a pluralistic liberal framework.

In short, there is room for ‘live and let live’ allowing different shades of moral conviction to be accommodated, whilst rejecting moral relativism. An elastic view of the ‘No Harm’ principle, and ‘Golden Rule’[14] common to both Western and Eastern philosophy, is inevitably part and parcel of this outlook, and how far to stretch it? is at the heart of the debate.

Having taken this brief tour d’horizon of values East and West, let’s now take a look at how the law in Europe, the USA and China is responding to the possibilities to prevent and punish actions that cause involuntary harm to people by degrading the environment.

Must the Dutch Government Rule the Waves?

On 20 December 2019, climate change activists got a Christmas present (and the Dutch government got a headache) from the Supreme Court of the Netherlands which upheld the results of first instance and appeal decisions from 2015 and 2018, obliging the Netherlands to comply with its (pre-Paris Treaty) obligations to reduce C02 emissions to 25% below 1990 levels, by the end of 2020.

The key conclusions were that the European Convention on Human Rights (ECHR) imposes actionable positive obligations on states to provide citizens on their territory with effective legal redress (Art 13) to secure appropriate preventative action designed to avert threats to life, both existential (Art 2 -Right to Life) and qualitative (Art 8 -Home and Family Life). These positive obligations were held to be engaged and the Netherlands was directed to act. Even though their actions may not work to achieve the desired outcome because of the derelictions of other states, and despite the comparative uncertainty of science concerning solving the problem (as opposed to the scientific consensus as to what has caused it), they must still do their bit.

The Dutch Supreme Court’s conclusion was in line with the impressive advice (complete with 597 footnotes) of its Deputy Procurator and Advocate General. The dispassionate rigour of the forensic treatment is a good advertisement for the fraught topic of climate change, and the collective rights and obligations arising from it, to be a subject for judicial and not purely political disposal.

Against a backdrop of largely common ground between the litigants about climate science and fossil fuels’ contribution to greenhouse gases and global warming , the Dutch Supreme Court overcame constitutional objections (such as its inability to compel legislation) as well as objections based on the margin of appreciation to be afforded to the Dutch Government (both within European law principles of subsidiarity and on principled concerns about the boundary between judicial and political decision making).  The outcome of the decisions below was upheld and the Dutch Government was dispatched to do what it can to meet the Netherlands target reduction commitments, even if it still turns out the dykes holding back the Zuider Zee overflow, because like King Canute, they cannot rule the waves.

I would be happy for this prediction to be proven wrong but (as we shall see) early indications are that the courts in the UK and America may be unlikely to mirror the Dutch courts’ robust approach to the justiciability of climate change issues.

Hot Topical Climate Litigation elsewhere in the West: US and Them

The forensic landscape is reliably more flamboyant and heterogeneous in the US than in the UK, where the ghetto in the immediate environment of the Royal Courts of Justice in London[15] tends to ensure a broad phlegmatic conformity, with radical views driven to the margins. We will look at one case from each setting[16].

In August 2015 a group of 21 young plaintiffs sued the USA in the guise of President Obama and various heads of federal agencies[17] in Eugene, Oregon claiming that US federal fossil fuel policy deprives them of life, liberty, and property without due process of law[18], impermissibly discriminating against young citizens, who will disproportionately suffer from the federal policies promoting fossil fuels[19] and failing to discharge obligations to hold essential natural resources in trust for the benefit of all citizens.

The case became known as ‘Youth v Trump’ ,following sideshows featuring Judge Coffin of (Careful with that Axe) Eugene[20] ,who dealt with applications for Trump’s joinder and the intervention of various fossil fuels lobby groups to help out the government. Trump got to stay out, but the lobbyists got in, for a wee while at least. As in the Netherlands litigation, the US government largely did not quarrel with the climate science, whereas the lobby groups were neither prepared to admit nor deny it, leading Judge Coffin to point out that this would mean the issue of whether carbon emissions cause global warming would actually be up for proof at trial, if matters got that far. The lobbyists thereupon sheepishly withdrew to avoid judicial confirmation that the whole thing is not a hoax.

The US Government moved to strike out the claim on the pleadings and have the case summarily dismissed as disclosing no viable cause of action, even taking the facts alleged as true. The claim had some elements shorn[21], but (without diving too deeply into the technicalities) the key arguments rejected, on the basis that the claims raised triable issues, were as follows:-

1)   That the claim failed to state an arguable case for statutory judicial review which was argued to provide exclusive recourse. The court held that the relevant statute did not govern, so that the due process, equal protection and public trust claims were potentially available.

2)   That the plaintiffs lacked standing under Article III of the Constitution because the alleged harms were insufficiently concrete and particularized and neither fairly traceable to, nor redressable by, the federal government . The court considered all three triable issues.

3)   That the case was not justiciable under the separation of powers doctrine as a political rather than legal question. This too failed as a preliminary point.

4)   That there was no fundamental right to a climate system capable of sustaining life – again held to be triable.

5)   That no positive obligation of protection by the state was engaged under the Due Process Clause of the 5th Amendment, because this needed the state either to have assumed a special responsibility (e.g. by taking somebody into custody) or to have created the danger with a deliberate indifference as to its consequences. The indication that the latter ,difficult to prove, standard may nonetheless be arguable was colourfully illustrated by the judge quoting from a 1969 memo on greenhouse effect to Nixon’s Domestic Affairs Assistant (and Watergate convict) John Ehrlichman, noting ‘This…could raise the level of the sea by 10 feet. Goodbye New York. Goodbye Washington for that matter.’ .

6)   The Equal Protection claim, which required either that infringement of a fundamental right was engaged or that the young plaintiffs constituted a distinct ‘ suspect or semi-suspect class’ ,survived as triable on the fundamental right point but prior authority (presumably of a childless judge) precluded young or future generations being labelled a suspect class.

7)   The public trust doctrine issue (described as being ‘deeply rooted in our nation’s history’) also survived.

All in all, the case has so far lived to fight another day and it remains to be seen whether it will be strangled later in its life than the fate suffered by a parallel effort in London, which now gets a brief mention commensurate with its short forensic lifespan.

Meanwhile in the UK in 2018, an application for Judicial Review was brought by a climate action group called Plan B against the Secretary of State for Business, Energy and Industrial Strategy. The case sought to establish the unlawfulness of the Secretary of State’s refusal to amend the UK’s emissions target in light of relevant developments over the last ten years since the 2008 Climate Act was passed. The claimants failed to get permission to proceed ,either at first instance or on appeal.[22] They relied upon the same ECHR provisions as Urgenda had in the Netherlands, but fairly predictably foundered, despite a valiant effort, on the high hurdles that protect ministerial discretion unless it is seriously perverse, misdirected or unjustifiably unreasonable. Perhaps no great surprises here, but might outcomes in China hold some in store?

China in a Bull Shop?

In Spring 2013 China’s press carried an article about a Beijing taxi driver being surprised to discover that his passenger discussing the difficult challenge of conquering the city’s smog was none other than President Xi Jin Ping. This was a carefully constructed propaganda stunt (i.e. fake news) designed to reinforce the President as a man of the people. Given how cocooned from the public the members of the Standing Committee are in reality (let alone the General Secretary himself) the stunt also has shades of the archetypical Wise Man, coming down from the mountain like Nietzsche’s Zarathustra, to impart a new value system on the world in the wake of the death of God, declaring ‘To blaspheme the Earth is now the dreadfulest sin…Man is a rope stretched between the animal and the Superman – a rope over the abyss.’[23]

The idea that government is the steward of the moral and material welfare of society (entrenched in China over millennia) combined with the Party’s considerable direct control over industrial, agricultural and economic activity, posits that central government is the obvious prime mover to be responsible (and better placed than governments in Western democracies) to set and execute the policies and profound changes needed to address climate change. It is less obvious that court enforcement of laws could be a means to impose achievement of emissions targets on government. In particular, the idea that central government could have its hand forced by individuals deploying human rights laws vertically against it ,as happened in Holland, would be a novel and alien prospect.

 Nevertheless, we shall see that both laws penalizing polluting activities and judicial review are beginning to be harnessed in China quite extensively. Before addressing these modern developments ,which have been largely unremarked in the West, I am going to take a quick dive into the background of classical Chinese jurisprudence, which is sufficiently esoteric to be both pretty much unknown in the West and perhaps relegated to cultural ‘muscle memory’ in China, which may yet influence how things develop from here on.

The Holy Trinity of Chinese Jurisprudence - F.D.R. (Fajia, Daojia and Rujia)[24]

It seems that as early as the Xia Dynasty (23rd – 18th centuries BCE) the basic idea that fa (law) was for the plebs and  li (rituals) was for the toffs had already taken hold. By the time of the 5t h- 4th centuries BCE you had the Fajia (Legalists) in the fa corner, holding that publicised and punishable laws could keep society on the straight and narrow, and the Rujia (Confucians) in the Li corner, holding that law alone, without the accompaniment of a code of ethics was inadequate to produce a healthy society. The slightly improbable hippy referee (as the D between the F and the R) was the Daojia who advocated that going with the flow in conformity with nature, without the manmade constructs of either Li or Fa, was the way to go. In some respects , it has been observed[25] the Daojia outlook had much in common with the anarchism of the Russian Peter Kropotkin (1842 – 1921) who said ‘ The law is an adroit mixture of customs that are beneficial to society and could be followed if no law existed, and others that are of advantage to a ruling minority, but harmful to the masses of men and can be enforced on them only by terror.”

We have already discussed Confucian core values. These were developed by Confucius’ successors, Mencius and Xunxi of whom the last began to articulate a relationship between Li and Fa roughly equivalent to that between Equity and Common Law. Although it took the Daoists to help effect some very rough facsimile of the fusion of Equity and Common Law ,as enacted in England by the Judicature Act of 1873, by helping overturn the dominance of Fa and the Legalists to achieve a lasting reassertion of Confucian values (enshrined in the civil service exams over centuries until the modern era, as previously described). The Fajia or Legalists reached the height of their influence in the ‘Warring States’ period from 467 to 221 BCE, when scores of states in what is now China were in conflict until the state of Qin prevailed and established a unified state.

We have not so far encountered the Legalists at all, and to do so for a lawyer is like going over to the Dark Side. Their core ideas seem to provide a playbook for totalitarianism and cast a long shadow in China , with four chilling central themes:-

1)   Persons should be presumed wicked and not innocent

2)   A culture of informants should be encouraged to punish criminal schemes pre-emptively

3)   Collective punishments should be imposed on persons with connections to culprits

4)   Disproportionately harsh deterrent punishments should be set for minor offences so as to use ‘punishment to eliminate punishment’ (yi xing qu xing) .

All of this needed to be overseen by a ruler in absolute command of his subjects who dare not challenge him, as the people were incapable of managing their own affairs and needed to be controlled by force and deception. Shang Yang and Hang Fei, the two leading proponents of the Legalist school do not sound like people who would be top of my dinner party invitation list, although Lao Tzu, who might well be, seemed to share their distrust of the common people and their (and Plato’s) conviction of the need for a sage ruler. The Legalists and Lao Tzu, however departed from Plato (and moved closer to Machiavelli) in insisting that society needed that ruler to make all the rules and enforce them ruthlessly with deceit and force if necessary. 

Against this background, it is easy to see why the law got a ‘bad rap’ in China while trust in government where the Confucian ethics prevailed (at least in theory) was greater.

A further side-effect of the elevation of Li over Fa  was the development of groups in society who regulated their affairs amongst one another by informal sets of rules better described as codes of conduct than law. As Chan Wejen describes it ”Thus there was a ‘civil society’ in traditional China. It had an informal ‘legal system’ that co-existed with the formal one. More accurately speaking, the two ‘systems’ were dimensions or components of the traditional legal system. They supplemented and complemented each other, making that system more efficient.”

From these rather dubious beginnings that have kept both law and the lawyers rather low in the value chain in Chinese estimation, the developments of recent years described below show signs that law is now taking its appropriate place, not just because of its need to regulate dealings between the citizens in a market economy, but also because it can be used as an instrument to centralize power and control the exigencies of provincial and local government, both in stamping down on corruption and by penalizing environmentally degrading conduct.

Quantity in Search of Quality, Damned Lies or Statistics? : Judicial Reforms in China

In a country which, according to Bill Gates[26], produced and used more cement between 2011 and 2013 than the US did in the entire 20th century, it is not difficult to come upon mindboggling statistics. In the five years from the inception of judicial reforms from 2013 to 2017 the number of first instance suits against government agencies increased 87% from 123,194 annually to 230,432, with appeals popping 207% from 35,222 to 108,099[27].

The main driver for this has been reforms originating from 2013 proposals and ensuing changes to the Administrative Litigation Law (ALL) (illuminated by Supreme People’s Court (SPC) guidance on them, published in 2018). One key change was to allow claims for judicial review (JR) to be registered without being blocked clerically, which had previously been the functional equivalent to the judicial filter in English proceedings of the need to obtain Permission to JR. The old discretionary registration process would appear to have been an open invitation to low level corruption. 

A second change has been to introduce the possibility for Procurators under the aegis of the Supreme People’s Procuratorate to instigate public interest litigation both against delinquent government organs and private individuals. Whilst popular satisfaction with central government is high in China compared to the West, it is the provincial and local mechanisms ,as well as private sector rogue actors, that have been magnets for popular dissatisfaction across a spectrum engaging housing, planning and urban development and industrial pollution, as well as food safety (e.g. the poisoned baby milk scandal), with corruption a pervasive element.

The authors of the thoughtful article[28] from which I have drawn these impressive statistics make the point that much commentary both inside and outside China has been beguiled by the numbers into a ‘never mind the quality, feel the width’ conclusion that they are a sure fire indicator of a strengthening rule of law in China.

The underlying picture appears more nuanced. In the first place it is clear that the reforms are part of a top down process to reinforce centralized power. This has included both centralization of court systems within provinces and creating circuit courts of the SPC to adjudicate important cross jurisdictional cases as well as creating lower level, cross region courts including important metropolitan courts in Beijing and Shanghai[29]. It is for Procurators not the citizens to keep government in line and to do so directed by a centralized command structure.

In addition to the top-down centralization theme, there have been important qualitative initiatives, such as screening out over 60% of court employees that previously had the title judge (in some cases with slender qualifications) and promoting judicial transparency by the introduction of open trial and publication of decisions online.[30]

Amidst these quantitatively impressive reforms, the title of the Party’s October 2014 ‘Decision on Facilitating Fully-Fledged Rule of Law’, as their progenitor still has something of the quality of someone whistling in the dark - propogandist in an effort to display a confident understanding of the ‘Rule of Law’ which is in fact sketchy, or at any rate, not equivalent to the understanding that a Lord Bingham or Lord Sumption would have of the concept[31].

In a culture that lacked an ideogram for ‘rights’, but idealized humane benevolence (ren ai) in a set-up where the government is and always was your keeper, the answer to the question ‘Quis Custodiet Ipsos Custodes?’ (who guards those guards?) is ‘their superiors!’, and not the citizenry, or even a judge who has taken an oath to do justice according to the law without fear or favour. Above the top boss, there was in theory only ‘the Mandate of Heaven’ with its secularized modern equivalent now based on the say-so of the denizens of the Standing Committee.

The command and control reflex and suspicion of transparency runs deep, with judges within the court system used to seeking undisclosed direction from higher up in a way apt to make appellate review something of a charade. The oath is to the Party and the laws that emanate from it rather than to a body of rules, which no man can be above (pace Nixon, Trump, Cheyne & Partners).

The Party’s second 5- year Plan (2004 – 2008) had explicitly promoted judicial independence and judicial authority ( which is after all enshrined in the Constitution) and yet the Party’s Propaganda Department in 2013 designated ‘judicial independence’ as a politically incorrect term in a circular which prohibited seven terms which became notorious as the ‘7 No’s’[32] More recently President Xi (in a speech on 24 August 2018 marking the CCP’s establishment of the Commission for Law Based Governance over which he presides) stressed ‘we must never copy the models or practices of other countries…we must never follow the path of Western ‘constitutionalism, separation of powers or ‘judicial independence’. Domestically it is top down, rule by law. The power of the constitution proceeds from the National People’s Congress and not vice versa. Just as Parliament is sovereign in the UK, the Party elected to the NPC by the people is sovereign in China.

It can be deduced that President Xi’s views also underlie the quiet death in 2008 of the Supreme People’s Court 2001 ruling in Qi Yulin v Chen Xiaoqi et al. which recognized the constitutional rights of a Chinese citizen to name, identity, education and reputation, and was touted (or rather miscast) as China’s Marbury v Madison. 

Marbury became an icon for JR, in holding that it was the job of the Supreme Court to say what the law means in the Constitution, and to use it to strike down unconstitutional laws, if necessary. The more modest claim of the SPC was to be able to interpret the Chinese Constitution in a way that some have said owes more to top-down federalism than separation of powers. In December 2008 the decision was peremptorily put back in the box by the SPC issuing a terse circular to say that the 2001 ruling was ‘no longer in use’.

Not only saying what the Chinese Constitution shall contain, but also what it means (at least so far as central government is directly affected) appears to remain strictly within the purview of the Party, the National Assembly and its other machinery. Whilst the reforms described have certainly harnessed laws to help directly affected citizens and broader interests represented by the Procurators to prevent and sanction pollution and other environmentally degrading actions inside China, it seems highly unlikely that the mechanism of using individual rights to life etc. vertically to force the state to enact laws domestically will take off in China anytime soon.

Perhaps the more interesting questions, when it comes to combatting the global problem of climate change and the resulting exigencies (such as mass migration) , is what can or should judges outside China do domestically to weaponize existing legislation? and can new international treaties addressing the problem be feasibly contracted and used?

Does Climate Change Engage Fundamental Rights and Should Judges make Law?

The case against justiciability of climate change issues under human rights law states that climate change problems transcend the balancing of general and individual interests that classic human rights law is intended to address (mainly in the vertical relationship of the state over the individual). The difficulties of demarcating specific groups as victim to a threat posed to the entire world’s population and the diffusion and relativities of territorial causes amongst nation states, as well as the variety of contributing causes, ranging from aviation to farting cattle, are all raised as objections.

 These concerns frame the debate very squarely in the ambit of the overarching theme of Part I which sets up Western concerns with the rights of the individual and establishing a linear relationship between cause and effect against the contrasting communitarian emphasis on interconnectivity and acausal synchronicity in Eastern thought.

How do we find the middle path that both Aristotle and the Buddha (as well as the Taoist concept of going with the flow) would all recommend in navigating the polarities between group and individual rights? How do we pay heed to the whole being greater than the sum of the parts without trampling on individuals? And how do we address the difficulty that the law, like science, can more easily cope with a linear relationship between cause and effect (even on a balance of probabilities test) than it can with complex ,networked and global problems like climate change, which will need some corollary to differential equations in science, to help solve them when administering justice ?

A starting point to this debate concerns what should be the content of fundamental rights immune from change by governmental dictat, and how and by whom should those rights be set and subject to adjustment. In his Reith Lectures, Lord Sumption sets out his stall with characteristically persuasive lucidity and precision to advocate that only a limited core set of rights should be insulated from political change, and that, in principle at least, it should be for politicians and not judges to fix and adjust this specially protected species of rights, leaving judges strictly to determine what the law is, and not what it ought to be. When subsequent to those lectures, the UK Supreme Court had to put Boris Johnson back in his box for counselling the abuse of the Royal Prerogative to Prorogue Parliament (a phrase engaging more rogues and PRs than even Saatchi and Saatchi), Lord Sumption appeared to acknowledge than his could be a beautiful theory murdered by a brutal set of facts, and agreed that the Supreme Court had done what it had to ( but ought never to have had to) do.[33].

Asking ‘Is it better for the law to be laid down by judges or politicians? ’ begs the pragmatic questions ‘ What judges, compared to what politicians?’ And ‘In the context of what overarching system?’ The best answer may vary considerably from context to context, and in particular as between national and international contexts. The right prescription also needs to take account of politics being the art of the possible.

The logically anterior question to, ‘ how and by whom fundamental rights should be set?’ is the principled question of what they should contain. The existential protection of life is at the less controversial end of the spectrum ,provided it does not engage as yet unborn lives and we have seen that climate science has demonstrated that global warming affects both the existential and qualitative rights to life in the here and now, and is set to affect posterior, ‘yet to be’ lives, more acutely. This appears to put climate change theoretically within a fairly restrictive definition of fundamental rights, even if we draw the line at imminent existential harm for the presently living.

This in turn raises the question of how much risk society wishes to tolerate in permitting individual freedom. As Lord Sumption points out we could easily dramatically reduce death and injury from road traffic accidents by re-enacting Victorian legislation limiting road speed to 4 miles per hour, but it should certainly be for politicians rather than judges to legislate in that way. Similarly, the scientific discoveries indicating that in dynamical systems the outcome of any process is sensitive to its starting point, cannot seriously predicate that the law should (as the Chinese Legalists might have advocated) require butterflies to be beaten to prevent them beating their own wings in the Amazon, so as to avert the collective harm of a tornado in Texas.

Making laws entails drawing lines, and judging two nearly identical situations differently because they are a hair’s split apart on either side of the line in question is always likely to make the law look like an ass, if its application is mechanical and not holistic: good judges need good judgment in the round.

My (perhaps controversial) proposition on the subsequent question of whether it is better for judges or politicians to make laws on climate change, is that it is probably best for politicians to make the laws in China and for judges to do so in democracies and internationally within a framework of negotiated international treaties. Much in the same way as listed companies need to make short term profit to appease shareholders (sometimes at the expense of long term growth and prosperity) so politicians in democracies are answerable to the short term desires of a living electorate, and less well placed to be stewards for future generations than is the case for the Party in China. China is fundamentally a family business, not a listed one subject to the whims of shareholders who care little for unborn generations.

 Judges forged in the crucible of long experience in the forensic process and selected based on their merits in that process are similarly better placed than politicians answerable to an electorate, when it comes to balancing interests in a rigorous and disinterested fashion.[34] Judges cannot flat out legislate, but their ingenuity in creating law from some broad norms laid down in a constitution or a treaty (each reinvented judicially to be living instruments able to absorb and give effect to newly emerging social norms) has been amply demonstrated both by SCOTUS conjuring from the Constitution rights of privacy to permit contraception, and rights of equality and free association to consecrate same sex marriage. Similarly, the European Court of Human Rights in Strasbourg (ECtHR) has mined unexpected rights from Article 8 ECHR. So too has the International Court of Justice managed to make its own earlier decisions a Trojan Horse for developing new norms of international law (somewhat to the irritation of lawyers from the civilian rather than common law tradition).

It is hard to disagree with the view that, ideally , law-making ought to be the province of politicians in a democracy, and that judicial lawmaking has had is dark days from Dred Scott[35], to union bashing in the name of freedom of contract, but to say that judicial law-making is bad, one has to ask, bad compared to what? Bad compared to a legislature paid not to pass common-sense gun safety laws to protect the owners and their children from the arms which their parents have a right to bear ? I think not.

What judges need in order to be able to help to drive the evasive action hoped to avert the worst consequences of climate change is first more international laws to draw upon, and secondly fora in which such laws can be deployed effectively. We now turn to look at aspiring candidates to form these laws and will turn in Part III to considering mechanisms to give them teeth.

A Third Covenant and a BIT on the Side in Paris and Kampala

If courts and international tribunals are going to attempt to enforce an expanded conception of the ‘No Harm’ principle engaging a human, social and economic right to a life sustaining environment, they will need sources of law to apply.

We have seen that the courts in America are being asked to address whether there is a fundamental right to a climate system capable of sustaining human life under their national constitution, which has so far been held to be a triable issue. According to the Preamble to the Draft of the International Covenant on the Human Right to the Environment there are more than 150 national constitutions which have included the environment as a social obligation, and among them more than 95 have recognized the human right to the environment as a new fundamental constitutional right.

As we know, many constitutions littering the planet are the detritus of departing colonialists making a record of rights that they probably had not offered to the locals whilst they were in charge, and with the newly independent nations under new management, many such rights continued to be honoured largely in the breach. Nonetheless, even the feeble functioning of a national constitution can be garnered as evidence of state practice for the purposes of forming customary international law, so this growing constitutional consensus can help to construct sources of law on the international plane, which would be the most appropriate place for climate change to be addressed, if only the enforcement mechanisms were there to do it.

We have also seen that the fundamental rights enshrined in an international instrument ( i.e. the ECHR) have been deployed successfully in Holland and unsuccessfully in the UK. The doctrine of the ECtHR in Strasbourg is that the ECHR is a ‘living instrument’ able to morph with the times and as Jonathan Sumption observes ‘ For those who believe that fundamental rights should exist independently of democratic choice, dynamic international treaties have an obvious attraction. They create a source of law which is independent of democratic political choices.’.

So ,what are some of the key existing and proposed international instruments that may in principle provide dynamic sources of law to compel meeting greenhouse gas (GHG) reduction targets and protect people against the consequences of global warming?

The UN Climate Framework

Most obviously there is the whole UN edifice under the 1992 Framework Convention on Climate Change (FCCC), under which the adoption of the Paris Agreement in December 2015 was the latest major milestone.

 The key methodology of the framework rests on national commitments to cut GHGs with the aspiration to keep global warming at 1.5oC, or below 2oC, the perceived dangerous tipping point. These targets are monitored in annual Emission Gap Reports to measure how much targets will need to be ratcheted up (at five yearly intervals) if we are not going to miss the mark as best as scientists can tell (which is not very well comparing historic predictions against actual warming). As of December 2019, current unconditional national commitments look set for us to see a 3.2°C temperature rise, unless global emissions are cut by 7.6 percent every year for next decade.

We have seen from the Netherlands case that the EU’s adoption of targets and requirement for member states to meet them can give forensic teeth to national courts, via the co-option of a dynamic human rights treaty viz the ECHR .

What the UN framework and Paris Agreement lack (because politics and international diplomacy are arts of the possible) is any bespoke international enforcement mechanism, such as the WTO procedure, which is mandatory for WTO membership. The signatories to the Paris Agreement were also careful to record that ,with respect to loss and damage, their recognition of the importance of averting, minimizing and addressing loss and damage associated with the adverse effects of climate change ‘does not involve or provide a basis for compensation[36]’.

The UN Human Rights Framework

Separately from the UN machinery directly addressing climate change , nine core instruments have been the progeny of the 1948 Universal Declaration of Human Rights (of which China is party to six). In addition to the individual rights to life and family life as reflected in the ECHR, there the two UN International Covenants which respectively cover economic, social and cultural rights (ICESCR[37]) and separately civil and political rights (ICCPR[38]). The Covenant on social and cultural rights is crafted from a group perspective, first and foremost. In the words of ICJ Judge Xue Hanqin ‘Culturally, collective and societal interests are always viewed with deference in the Chinese society. It is a virtue that in pursuing social harmony, peace and order, collective and communal interests, if necessary, should prevail over individual interest.’.

It seems even less of a stretch to read the group right to an adequate standard of living under Article 11 of the ICESCR as a right to a life sustaining environment, than it does to read the Article 8 ECHR rights to privacy and family life and home that way, the problems of lack of available forum to deploy the right, and the tension between Article 11 ICESCR and Article 25, which prevents the Covenant being interpreted to impair the inherent right of all peoples to utilize fully and freely their natural wealth and resources presents a problem. So, do we need a specifically crafted instrument ?

A Third International Covenant and More?

At least two initiatives are afoot to attempt to meet the need for clearly demarcated treaty rights to environmental protection. The first, mentioned above, is a suggested draft third covenant ‘the International Covenant on the Human Right to the Environment. This includes core rights to a healthy environment, protection, precautionary measures, environmental assessment and reparation, as well rights for disaster victims, environmental refugees and internally displaced persons (IDPs), as well as a right to effective redress in national courts.

A second initiative seeks to tackle the problems of climate refugees as a standalone issue. The current criteria for refugee status under the 1951 Geneva Convention is fixed on the mid twentieth century concerns of fleeing political persecution across international boundaries.

The proposed draft Convention on the International Status of Environmentally - Displaced Persons, seeks to leverage Africa’s example of the Kampala Convention for the Protection and Assistance of Internally Displaced Persons in Africa and apply protection to climate refugees who do seek to cross international boundaries. Given how fraught the topic of refugee migration from Africa and the Middle East to Europe is under existing instruments that focus on political persecution, the sponsors of this draft hope that treating climate refugees separately and imposing a proximity requirement, establishing a global agency and a financial aid fund with a principle of proportionality based on means and needs might help steer clear of the current refugee crisis minefield.

Both of these initiatives have much to commend themselves in principle. There is perhaps some hope that the rising clamour of populations who are suffering fires, storms and air pollution will at the very least make it easier to get international instruments agreed that sound good by clearly articulating rights to protect against potentially avoidable environmental degradation.

 What will be more difficult and will require some litigation savvy and forensic ingenuity (as well as the kind of judicial courage and activism that the Dutch courts displayed) is working out how to give any new legal sources the full force of law. That is the topic which I shall come to in the third and final piece of these Analects of Aristotle. The observant will note that I have just covered, Paris, Kampala and a Third Covenant, but you will have to wait for Part III to get your BIT on the side.

[1] And ,of course, ‘Libertarians for Burkha- wearing’ probably has more followers on Twitter than even the Church of the Latter-day Saints.

[2] His more famous remark is to the effect that democracy is the worst arrangement apart from all of the others

[3] Niall Fergusson in The Tower and the Square analyses this cycle in terms of a comparison of an ebb and flow between networked systems and hierarchies mutually arising over the course of history in a way that chimes with Capra’s ‘ ‘The Systems View of Life’ mentioned in Part I

[4] Reith Lecture 1 ‘Law’s Expanding Empire’ 21 May 2019

[5] Sandel Op Cit 193

[6] Sumption Ibid

[7] Democracy and its Crisis p 21

[8] AC Grayling’s summary of Aristotle’s views was extracted from Politics Books II and IV translated by Benjamin Jowett (1894)

[9] In 2013 the Chinese Communist Party Propaganda Office officially disapproved the label ‘Judicial Independence’, but ,as we shall see, this appears to have misunderstood that such independence does not contradict that judges themselves shall be never so high as the law is above them in a dispensation in which ,in the UK, Parliament is sovereign and in China, so is the Party, and this is not conflicted by judicial independence because it is respectively Parliament and the Party that make the law.

[10] 27% of the UK’s population voted to ‘ open the box’ i.e. see what leave means and a smaller percentage voted to ‘take the money’ i.e. keep what they already knew.

[11] 1)       Benevolence (ren ai), moral principle (daoyi 道义), honesty (cheng shi 诚实), trustworthiness, (shou xin 守信) filialness (xiao shun 孝顺), harmoniousness (he mu 和睦).

2)          Self-improvement (zi qiang 自强), industriousness (qin fen 勤奋), courage (yong gan 勇敢), uprightness (zheng zhi 正直), fidelity (Zhong shi 忠实), sense of shame (lian chi 廉耻).

3)          Patriotism (ai guo 爱国), law-abidance (shou fa 守法) orientation towards collective interest (li qun 利群), etiquette (zun li 遵礼), engagement in public affairs (feng gong 奉公), devotion to one’s profession (jing ye 敬业).

[12] Rosemont and Ames The Analects of Confucius: A Philosophical Translation 2009 ,22-23.

[13] ‘The Righteous Mind: Why Good People are Divided by Politics and Religion’ 2012 p 313

[14] i.e. variations on the theme ‘Do unto others as you would have them do unto you’ .

[15] AKA, the Temple and Inns of Court from which the judiciary is mainly recruited.

[16] For further materials on climate litigation around the world, including EU, France, Germany, India, Pakistan and New Zealand take a look at Urgenda’s website https://www.urgenda.nl/en/themas/climate-case/global-climate-litigation/

[17] Kelsey Cascadia Rose Juliana et al v USA in the US District Court of Oregon, Eugene Division case No. 6:15-cv-01517-AA

[18] Prohibited by the Due Process Clause of the 5th Amendment.

[19] Engaging the Equal Protection Clause of the 14th Amendment of 1868, known as the Reconstruction Amendment, designed to give equal protection under the law to the former slaves freed by the 13th Amendment.

[20] For those living more under Rock than for it, a famous Pink Floyd lyric.

[21] For US constitutional wonks, a purported self-standing claim under the Ninth Amendment was struck out. This states that rights enumerated in the Constitution shall not be construed to deny or disparage others retained by the people. It has been held not to independently secure any constitutional right to ground a civil rights claim but was a useful prop to the Supreme Court crafting a right of privacy.

[22] Queen, On the Application of Plan B and others v Secretary of State C 12018/1750

[23] Thus Spoke Zarathustra , Friedrich Nietzsche, from the Prologue 3 and 4

[24] I am indebted for the following account to an article in the Tsinghua China Law Review (Vol 2: 207), by Chan Wejen ‘Classical Chinese Jurisprudence and the Development of the Chinese Legal System.’

[25] Alan Watts Tao : The Watercourse Way p 51

[26] www.gatesnotes.com/Books/Making-the-Modern-World

[27] These numbers are taken from Judicial Review of Government Actions in China by Wei Cui, Jie Cheng and Dominika Wiesner accessible at https://commons.allard.ubc.ca/fac-pubs, to which I am indebted

[28] ibid

[29] The Beijing 4th Intermediate Court and Shanghai 3rd Intermediate Court created in 2015 based on the model of railroad courts affiliated to Railroads Ministry which had cross-regional jurisdiction.

[30] Lieberman ,et al, ‘Mass Digitization of Chinese Court Decisions: How to Use Text as Data in the Field of Chinese Law,’ 21st Century China Center Research Paper No. 2017(01) 2017.

[31] See the Reith Lectures by Lord Sumption cited above and ‘The Rule of Law’ by the late lamented Tom Bingham (as he insisted on being called, with genuine humility)

[32] Circular on the Current Ideological Field, in Mirror, vol. 43, August 2013, Hong Kong.

[33]

[34] I suspect that ‘ disinterested’ rather like ‘independent’ could be misinterpreted in China – I of course mean non-partisan as opposed to disinterested ,as in, ‘does my face look bovvered?’

[35] holding that when Thomas Jefferson held certain human rights to be self-evident, they self-evidently did not inure to the people picking his cotton.

[36] See Paragraph 52. of the Adoption and Article 8 of the Paris Agreement

[37] Signed by China on 27 October 1997 and ratified 27 March 2001

[38] Signed by China on 5 October 1998 and still not ratified.