THE ANALECTS OF ARISTOTLE PART III

Introduction

I began by saying I would pursue three broad themes to show:-

 First, how modern science has verified ancient thinking on mankind’s and the environment’s interdependent connectivity.

 Secondly, that this has consequences for tackling global problems, requiring an expansion of Western individual rights theories to protect communal rights.

Thirdly, that there is scope for fusion cooking between Eastern and Western thinking to recraft  a ‘one planet, two systems’ rules- based world order.

In pursuing the first two themes, we have ranged across:-

·        Ancient Eastern mysticism and the latest ‘systems thinking’ in climate science and other disciplines, to illustrate the ‘Tao of Modern Science’.

·        Climate change litigation, deploying human rights law from Holland, to America and Britain.

·        International treaties in the making to protect rights to a habitable environment.

·        Legal reforms in China enabling public interest environmental protection litigation.

·        Western political philosophy from Aristotle to the Neo-Aristotelianism of Professor Michael Sandel, drawing concordances with the main schools of legal thought in Pre-Qin Dynasty China, and most especially Confucian value ethics.

The time has now come to consider the third theme - a basis for ‘Weasternisation’ of the world order, paving the way by:-

·        recapturing some strands in Western philosophy that echo the Eastern thinking, and the Marxism- Leninist base of Mao’s revolution.

·        Identifying seven characteristics emerging from China’s history that inform its journey to the current expression of ‘socialism with Chinese characteristics’, and its ambitions at home and on the world stage.

·        looking at some crossover international law and relations theories that chime with the more promising aspects of this Xi Jin Ping Thought, in particular –‘ Rule of Law’, ‘Coexistence with Nature ‘, and ‘Common Human Destiny’.

so as to be able to draw all these ideas together in imagining how to work towards a ‘Weasternised’ international Rule of  Law that is fit for purpose to deal with 21st century challenges and has some enforcement mechanisms to make it work.

Topical Developments, since Part II

Since last writing on these themes I have joined colleagues at our Beijing office for Chinese New Year celebrations and made it back to London and Dubai just in time not to be disrupted by a circumstance that is especially pertinent to the subject matter of global solutions to global issues, i.e. the Coronavirus outbreak . This will also have proved timely for sales of ‘The Butterfly Defect: How Globalization Creates Systemic Risks and What to Do about It’[1] ,first published in 2014, which explained how connectivity heightens the risks of global pandemics, whilst broadly exploring the theme that uncoordinated local solutions are increasingly inadequate to address modern systemic risk in a range of areas.

In addition, on 27 February 2020 the Court of Appeal in London defied my pessimistic prognosis for Judicial Review in England ( in contrast to the Dutch experience)  making any effective intervention in the enforcement of the state’s climate change commitments by  finding that ‘The Paris Agreement ought to have been taken into account by the Secretary of State in the preparation of the ANPS [Airports National Policy Statement] but was not…’  and making a Declaration that a planning scheme for expansion of Heathrow Airport had not been lawfully approved on that ground[2] .

Eastern Echoes in Western Thought (and Vice Versa)

We have already compared the maxim of Aristotle (384-322 BCE) that ‘the whole is greater than the sum of its parts’ to some Eastern ideas (including in Confucian thought developed by Aristotle’s contemporary Mencius (372-289 BCE)).  This theme and other ideas found in Oriental thought also have parallels in Heraclitus, Spinoza, Hegel , Schopenhauer, and Nietzsche. With Karl Marx, the direction of travel then proceeded West to East, to reach China via the Russian Revolution,  and become socialism with Maoist characteristics. So, let’s  first ‘speed date’ our way through these philosophers and their key themes that have counterparts in Eastern thought, before tracing the evolution of China’s politics from the fall of Empire in 1911 up to the present.  For my sketches of these philosophers, I have drawn more or less equally upon the two unsurpassed histories of philosophy by Bertrand Russell and AC Grayling[3].

Heraclitus  (c 540 - ? BCE)

An arrogant, misanthropic Ephesian aristocrat (born circa 540 BCE, making him a contemporary of Confucius 551-479 BCE) who set an example for obscurity surpassed only by Hegel and Zen Masters. Fire is the element that matters most: everything is in flux, with a unity of opposites born of dialectical conflict ‘for in strife opposites combine to produce a motion which is a harmony. There is a unity in the world, but it is a unity resulting from diversity.’.

Bertrand Russell paralleled this thinking to modern physics in the way that Capra later did the Tao, saying ‘ Energy had to replace matter as what is permanent. But energy, unlike matter, is not a refinement of the common-sense notion of the ‘thing’; it is merely a characteristic of physical processes. It might be fancifully identified with Heraclitean Fire, but it is the burning, not what burns. ‘What burns’ has disappeared from modern physics.’.

Spinoza (1634 -77)

An excommunicated Sephardic Jew whose family had fled to Holland to escape the Inquisition, Baruch Spinoza is respectively lauded by Russell as ‘the noblest and most lovable of the great philosophers.’ and by Grayling as having a view ‘ that breathes the clear air of intellectual freedom, and directs the attention to what matters: life itself, here and now, in society with others, requiring thought and understanding.’.

Spinoza’s  metaphysics, unlike modern physics, is all about matter, and can be described as purely deterministic, pantheistic logical monism which posits all the universe as a single substance comprising god or nature ‘For him the universe is God or God is the universe, nature is God or God is nature; they are one and the same thing.’. The Jesuits in China equiperated the Tao to God, and the ancient Chinese idea of Tian (Heaven) is of a similar ilk to Spinoza’s conception of the universe.

 Spinoza’s ethical antidote to his own metaphysics extracts a happy ending from the rather depressing premise that all is strictly predetermined, by imagining that the teleology of the universe is benign and progresses towards harmony, so that we should see that our individual misfortunes ‘are only misfortunes to you, not to the universe, to which they are merely passing discords heightening an ultimate harmony.’. His prescription to avoid misery, makes common cause with the Christian injunction to love one’s enemies and our neighbours as ourselves, which Russell had nothing against ‘except that it is too difficult for most of us to practice sincerely’.

Spinoza’s political prescription, that proved a lodestar for the Enlightenment, states that ‘Everyone is by natural right the master of his own thoughts…and utter failure will attend any attempt in a commonwealth to force men to speak only as prescribed by the sovereign, despite their different and opposing opinions.’( China take note).

Hegel (1770-1831)

One of Hegel’s key claims to fame ,which connects him fairly directly to modern China, is the influence of his central notion of dialectics on Karl Marx and thence via the Soviets to Chairman Mao. ‘ As applied to history, the dialectical process is one in which conflicts – within a society or between states – cause disintegration which is overcome in new arrangements, which in their turn become the theses to new antitheses requiring solution in new syntheses - and so on again[4]. He ascribed a positive moral worth to war  to construct a doctrine of the state (of which Hegel considered the Prussian monarchy to be more or less an ideal form) which Russell describes as justifying ‘every internal tyranny and every external aggression that can possibly be described…’ noting that ‘Hegel’s logic led him to believe that there is more reality or excellence (the two for him are synonyms) in wholes than in their parts, and that a whole increases in reality and excellence as it becomes more organized.’.

Schopenhauer  (1788 -1860)

Arthur Schopenhauer was overtly influenced by Eastern thought, keeping a copy of the Upanishads at his bedside and holding the distinctly Buddhist view that ‘to be released from suffering one must be released from the power of will – in other words from thralldom to desire.’. This was an extension of the Hindu premise that moksha (liberation) from samsara (suffering) entailed a journey to achieve the unity of Atman (the self, soul or spirit) with the underlying universal reality of Brahman.  

In his ‘World as Will and Representation’ he contrasted the perceived phenomenal world , which he considered (rather as Plato did) as an illusion of the senses , with the noumenal world (i.e. reality as it is) which he considered was experienced as will.

He equated will to emotion and took the pessimistic view that ‘there is no such thing as happiness, for an unfulfilled wish causes pain and attainment brings only satiety’. His thinking led him in theory at least to a belief that ascetic mysticism and compassion were the answers, in the latter respect sharing the Confucian ideal of humaneness as a primary virtue.

 In practice, however, he enjoyed fine wine and food and shared misogyny as a characteristic with Heraclitus, once throwing an elderly lady down the stairs and injuring her sufficiently badly to have to pay her damages until she died twenty years later[5]. He also had a marked dislike of his contemporary Hegel whom he described as a ‘flat-headed, insipid , nauseating, illiterate charlatan, who reached the pinnacle of audacity in scribbling together and dishing up the craziest mystifying nonsense.’. Schopenhauer was, however, kind to his dogs, including a poodle, he called Atman.

Nietzsche (1844-1900)

The morbidly inclined can view on You Tube, film of the dying genius Friedrich Nietzsche from 1899[6], whilst insane (likely with final stage syphilis) and put on exhibition by his sister, who bears some responsibility for the Nazi’s co-opting his views of the Ubermensch, or Superman lording over the populace as a herd with slave mentality.  A more uplifting visit to You Tube is to compare Nietzschean thought and Eastern Philosophy by listening to Bertrand Russell narrate his account of an imaginary meeting between Nietzsche and the Buddha, appearing before the Almighty to defend their opposing perspectives[7].

For present purposes a connecting factor worth drawing between Aristotle, Nietzsche and Confucius is that all three favoured a meritocratic aristocracy as a ruling class. The extreme vulnerability of this perspective (which was in each case founded in some degree upon there being a governing class imbued with an idealized set of characteristics) is that this meritocracy may degenerate into an unchecked evil tyranny, with a corrupted set of values likely to be validated only by the darkest aspects of the political thought of Machiavelli and his nearest Chinese counterparts Han Feizi (c280 -233 BCE) and other Legalists of the Warring States Period (475-221 BCE) which preceded imperial unification in China.

 What is typically regarded as the most remarkable prophesy by Nietzsche for Germany’s fate in the 20th century  (in turn mirrored by Dostoevsky’s predictions for Russia) is the dire warning as to what might fill the void left by the ‘Death of God’ (which Nietzsche proclaimed in ‘The Gay Science’ in 1882) if not replaced by a set of ethics fit to avert the catastrophes which duly unfolded in Hitler’s Germany, Stalin’s Russia and in the excesses of the Great Leap Forward and the Cultural Revolution in Mao’s China.

Marx (1818-1883)

Karl Marx was the son of a lawyer and vineyard owner descended from a line of Rabbis living in Prussia. His most productive years were in London where you can visit his grave in Highgate cemetery. His political perspective attacked not just capitalism but feudalism ,the latter being far more relevant than the former in early 20th century China and to the rural peasantry who were Mao’s ‘base’.

The utopian ideal that underpins Marxism eschews liberal political philosophy’s lionization of individual rights and freedoms under the rule of law, as well as rejecting more repressive forms of society and the imposition of religion as an opiate.  All of these  are seen as barriers to true emancipation in the perfected state which society was to achieve by the dialectical process co-opted from Hegel’s thinking (but stripped of its mystical motive force of ‘spirit’ and replaced by materialism). The spur of a necessary revolution (theoretically anticipated to arise in a worldwide proletariat amongst developed industrial economies , such as the UK where Marx lived and his native Germany) was then required to take the means of production into common ownership, so that labourers alienated in a capitalist system from their means of living, by the wages and rents required to produce profit and capital for the few, could live in harmony. The walls of separation in society, with methods to resolve disputes and protect the weak from the strong would no longer be necessary.  As described by Bertrand Russell ‘...for Marx, the driving force is really man’s relation to matter, of which the most important part is his mode of production. In this way, Marx’s materialism, in practice, becomes economics.’.

The practical model for the achievement of this ideal which intervened to inspire the Chinese communist revolutionaries had been the Bolshevik insurrection. This had not awaited the industrialized economy and global proletariat imagined by Marxist theory but entailed a committed band of revolutionaries taking advantage of a crisis to seize power, as Lenin did with the crisis in Tsarist rule. This was emulated by Mao and his accomplices, taking Japan’s attack on China as an opportunity to turn what had in fact been a Long Retreat from the Kuomintang to its Long March of 1935 to first collaborate with the Kuomintang (as directed by telegram from Moscow) to eject the Japanese , before turning on them and driving Chiang Kai Shek to the island of Taiwan.

 And the rest, is the history we shall now briefly touch upon to better understand how a process of ‘Weasternisation’ might be able to gain some purchase on the future.

The Long March to Xi Jin Ping Thought

Three of the headlines from the fourteen principles of ‘Xi Jin Ping Thought on Socialism with Chinese Characteristics for a New Era’ bear most directly on the present discussion –‘ Rule of Law’, ‘Coexistence with Nature ‘, and ‘Common Human Destiny’.

For anyone outside China to begin to grasp the uniquely Chinese characteristics underlying these three themes it is worth trying to find frankly expressed views from witnesses of China’s journey from 1949 to the present to see how modern China has emerged since the fall of the Qing dynasty in 1911.

A starting point for such insights is a work by Li Xiao Jun, published in 1989 , sub-titled ‘The first impartial account by an insider still living in China, of the background of the events in Tian an Men Square.’. Herein lies both a problem and an opportunity. The problem is that  there is no such person as Li Xiao Jun, as it is a shared pseudonym of Chinese intellectual Xu You Yu ( a teenage Red Guard during the Cultural Revolution) and none other than Professor AC Grayling. Therein lies the opportunity in that this may be truly a work of ‘Weastern’ thought. It leaves us to guess where the precise balance of authorship lies between the two men in the following diagnosis contained in the book ‘ Because of their immersion in their own culture’s traditional systems of thought, Chinese intellectuals did not recognize that Marxism is dogmatic, overambitious in its scope and claims, and poorly argued; and this is because Chinese philosophy suffers from precisely these same faults. Indeed one is tempted to claim that something in the Chinese psychology pre-disposes it to Hegelian-style thought rather than, say, the thought of Hume or Russell: for whereas Chinese intellectuals have had the opportunity to study all these schools of philosophy, it is the large, quasi-mystical, dogmatic generalizations of Hegel they prefer to the precision and depth of the analytic tradition of Western thought.’.

Preferring not to be left guessing, I checked with AC Grayling, who explained that the book was a collaboration, though the chief responsibility for judgments about Chinese thought and attitudes (as in the quoted passage) belongs to Xu. The book was written in English by AC Grayling drawing heavily from a preceding manuscript by Xu and Xu’s verbal co-drafting. The larger share of the input is Xu’s knowledge and opinions. Xu is well acquainted with Western philosophy in general and Russell in particular - the references to Hegel, Hume and Russell are knowledgeable ones. Xu and Grayling worked together for two years, one of them in Beijing and one of them subsequently in Oxford (the latter made possible by the advance for the book) and discussed both philosophy and the themes of the book in detail over this time.

In weighing the accuracy of  the observation about Chinese intellectuals being predisposed to Marxist thinking and ,more importantly,  the book’s assessment of the causes and likely consequences of the events of June 1989, we now have the benefit of thirty intervening years of Chinese history. The balance between how far its predictions have been borne out and how far they have been proven wrong, up until now, highlights that we remain delicately poised between a future in which the headlines of ‘Rule of Law’, ‘Coexistence with Nature’ , and ‘Common Human Destiny’ fulfil their superficially optimistic promise, and one in which they become dark Orwellian ‘Doublespeak’. This is in truth what is at stake in striving towards a mutually respectful collaboration to craft a global dispensation that draws on the best from the two perspectives of the dominant hegemonies of  the USA and developing China, in a way that allows all nations to adopt a way of being that is congruent with their own history and culture and with sufficient ‘give and take’ to  enable all to live peaceably and sharing and preserving the resources of our planet equitably.

The USA is presently retreating from its accepted role as the hegemon and global policeman of the ‘free world’ to the traditional limits of its former ‘manifest destiny’ to rule within its own territorial borders and, increasingly, to coerce externally with its economic power. Even whilst the Greenback remains the global reserve currency, the US can barely  tolerate China’s aspiration to return to its own manifest destiny, as it sees itself, at the centre of the world under the Mandate of Heaven, surrounded by tributary states (so rudely interrupted for some 5% of its history by the shame of Western and Japanese domination).

Seven Things that Make China and the Party ‘Tick’

In hoping to resolve the tension between the US as dominant power and China as challenging power it helps to have in mind the following insights about what makes China (and most particularly the Party) tick.

1)     Riot and civil disorder have been by far the commonest catalyst of regime change in China’s long history (invasion being the other) and hence are deeply feared and swiftly repressed by incumbent regimes.

2)     Secrecy and not openness is a reflex in a culture where having a sense of shame is elevated to an ethical standard (similarly to Japan) and privacy has been infringed by systemized informing and surveillance.

3)     Telling superiors what they want to hear ,and their tending to believe it, becomes habitual when dissenting views are not valued or tolerated.

4)     Bonds of family and friendship substitute for institutional trust

5)     Rule by Law is mistaken for Rule of Law  -‘Be no man so high, the Party is above him’.

6)     Widening inequality has been the trigger of threats to stability and the Party knows it must both race to cure the corruption problem (most especially at the Provincial level) where the greed of officials sparks resentment, and also race to keep the living standards of (first the rural, and latterly the urban) poor rising at sufficient pace to quell their resentment for the nouveaux riches.

7)     There has been a constantly shifting power dynamic within the Party which takes place remotely from public gaze leaving Party watchers to ‘read the tea leaves’ of visible changes of varying degrees of subtlety.

We have touched on some of these themes already  in Part II, but let us alight briefly on some more and less recent episodes in China’s modern history, where we can see these features in play.

Tiananmen Square 1989 and Hong Kong 2019

The recent civil unrest in Hong Kong provoked by a mishandled effort to introduce extradition to the mainland [8] has brought back memories of Tiananmen Square[9], and concerns about whether a similar debate to that which the hardliners won over the reformers/appeasers in 1989 is going on now.  In June 1989, after a heady week of total press freedom in China, the curtain came down with brutal repression to clear the square followed by the reintroduction of  media clampdown and national service in the countryside to purge students of the Bourgeois habits with which the hardliners considered that they had been polluted.

Then, as now, the debates that will be going on in the inner circles of the Party will have outsiders guessing and reading too little or too much into clues such as Mandarin rather than Cantonese being spoken amongst some police cadres on the streets in Hong Kong, and a longtime Hong Kong hand in local government being replaced as a senior official by a PRC official with no experience in the SAR.

In The New Emperors, Power and Princelings in China, published in 2014, Kerry Brown[10] attempts to plot the intersecting and dynamic spheres of influence within the Party, from family, military, provincial, central, intellectual and business interests, picking up in part from Bloomberg’s mapping of the power networks of the ‘princeling’ descendants of the ‘Eight Immortals’ who had emerged from the wreckage of the Cultural Revolution. The world’s attention had been drawn to this princeling class by the fall from grace in 2012 of Bo Xilai (son of Bo Yibo , Mao’s first finance minister and the last ‘immortal’ to die in 2007 aged 98[11]) in a scandal involving corruption and his wife’s conviction for murder of a British businessman, Neil Heywood.

 It is evident that any outsider, however well informed, is peering through a glass darkly in trying to read these signals, with no equivalent to the latest ‘tell all’ from the individuals falling at regular intervals from President Trump’s favour. Xi Jin Ping himself had been a largely unforeseen late runner, beating into second place his predecessor Hu Jintao’s supposed heir apparent Li Keqiang (who amongst other capabilities was a lawyer who translated works of Lord Denning into Chinese[12]).

Anybody who has witnessed the extraordinary physical infrastructure with which the Mainland is encircling Hong Kong in the Greater Bay Area to link it with Shenzhen, Guangdong and Macau would be surprised by (but ought not to entirely exclude) PRC inflicting the economic damage, or at least pause, that a heavy-handed military intervention in Hong Kong would provoke. Some comfort may be taken from Li Keqiang (a serial troubleshooter in PRC) being wheeled out to appear alongside Angela Merkel and proclaim China’s resolve to respect the One Country Two Systems policy and support the Hong Kong Government to end the ‘violence’ and ‘chaos’, using words tested to create a Pavlovian reaction on the Mainland to ensure that the majority see the rioters as more terrorist and less freedom fighter.

 20th Century Files versus 21st Century Face Recognition and Social Credit

‘One thing that the Chinese People fear and hate with passion is the so-called ‘system of files’ In China’s cities a file is opened on every individual from his or her day of birth,’ These contained a complete and inaccessible social profile which could easily be perverted by vindictive covert informers or malicious officials ‘ The importance of these files is paramount, for they influence every aspect of an individual’s life – career , housing education, opportunities to study abroad and the like…Chinese people liken the file to ‘a shroud that wraps you all your life’, it is like a Damoclean sword hanging over one’s head and keeping one in fear.’ The quoted words are Xu Youyu ,writing his 1989 ‘first impartial account as an insider’ as Li Xiao Jun[13],  and recalling the events of the Cultural Revolution in which he had enthusiastically participated as a youth. He noted‘ In 1957, when criticism and comment was ‘freely invited’ one of the chief subjects of complaint was the file system.’ But this turned out to be just another one of Chairman Mao’s legendary ‘sucker punches’ to trap his own feared rivals ‘This complaint, when Mao suddenly turned on the complainers, was denounced as rightism and attack on the Party.’.

Fast forward to 2020, and the default setting for the vast majority of Chinese able to afford it has become foreign travel as tourists. Pursuing the business of China’s ‘going out’ policy overseas has become the new normal. But amongst the most anxious concerns of anyone who understands the essential relationship between surveillance, networks of informants and totalitarian control of a population (as well as the relationship between propaganda and mass psychology)  the new toolkit of ‘social credit’ ,monitored on social media and by technology in the streets, is particularly chilling. The wickedness of freelance crime in the world has always paled in comparison to the mass crimes committed by compliant populations at the behest of governments over the ages.

Some estimates suggest that six million Chinese are subject to internal and external travel restrictions based upon the implementation of the social credit system. This may be a comparatively tiny percentage of China’s population compared to the percentage of US citizens incarcerated, but it is nonetheless a chilling portent (along with extended term limits and ‘re-education centres’)  of a direction in which the world does not wish China to go.

Even with technological tools at its disposal that Hitler, Stalin and Mao could only dream of, to help manufacture consent, China is not North Korea, and the genie is sufficiently far out of the bottle for the ideas of Henry David Thoreau on the duties of civil disobedience (which  significantly informed  both Gandhi and Martin Luther King)  to be spread on Wei Chat, even if these ideas have to be encoded to masquerade as eulogies on Xi Jin Ping Thought.

Lies that Let a Virus go Viral, in Truth

The drastic quarantine measures that China has been able to impose in response to Covid 19  also demonstrate the control it is able to exert over its population, but the lesson of the delayed realization of  the onset of the virus centrally, necessitating this subsequent corrective overreaction, brings back to mind the centuries old advice from a high-level official in Jiangsu province to his son - “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.”.

Here we see the secrecy reflex at work in the stories of doctors’ warnings in Wuhan being repressed and punished. More subtly the shame instinct may also be at work, which can also be seen from China’s interface with the UN in the Human Rights sphere, where its key concern is to avoid criticism or penetrative scrutiny. The flipside of this reflex has been a ‘we mind our own business’ approach to external investment having ‘no strings attached’, to the delight of various kleptocratic regimes.

Our Way or the Huawei, again ?

Having touched on some ‘ dark side’ concerns in China in order to illustrate most of the seven listed characteristics identified , we shall end this review with more promising indicators illustrating the strength of family values and a healthy response to guarding against the resentment generating by rising inequalities, as well as promising attitudes developing with regard to the environment. This will then segue into the final part where we shall also look at how America must overcome some attitudes that stand in the way of a constructive Weasternisation.

The efforts of the USA to bully the world away from Huawei are well known, including Canada’s detention of its finance director. The two things, to which I draw attention are that the finance director is a woman, and the founder’s daughter. In this respect we see that  the importance of family in Chinese business is present and also that obstacles in the way of women succeeding are not what they were in pre-Communist China. Although nepotism has its drawbacks, empowered women, close-knit families and (dare I say it to my several children) filial piety are, I judge, Good Things.

I also rely on family anecdote (although statistics are available that were included in the keynote speech for China at Davos in 2019) for the encouraging reforestation in China. The anecdote comes from the father in law of one of my (even more several) nieces who is director of a major New Zealand beef producer acquired by Chinese interests. He has been massively impressed to witness first-hand in rural China, that when people are told ‘plant trees’, they actually plant trees. Here we see a more positive aspect of a compliant population.  

The promise now being made to this population is that China is striving towards becoming a ‘moderately prosperous society’. This together with the formal re-espousal of traditional Chinese civilizational values to fill the moral vacuum left by China’s ‘greed is good’ era (as described earlier) are more optimistic auguries for the future.

Where to start with Weasternisation?

In his ‘Reasons and Reasons for Reasons’[14] Lord Bingham shared the insight that independent decision makers may change their minds, once they start writing down their thoughts.

Having threatened to write three articles with a conclusion indicated at the outset in Part I (and the alluring promise of ‘a BIT on the side’ made in Part II), I have been reflecting and in search of inspiration on what to share, and how to end with practical possibilities for practicing lawyers to influence the evolution of our world order in a weasternising way.

One serendipitous discovery (having just begun to think about a ‘systems view’ of the law) was that Yale Law School Professor Paul W Kahn has just published, his ‘Origins of Order; Project and System in the American Legal Imagination’. This is right on point in examining how two fundamental concepts of order influence our ideas about sovereignty, citizenship, law, and history. The first is a ‘project’ ,a planned endeavour like the US or Chinese Constitutions, and the second is a ‘system’, described as order immanent in the world, that is discovered, not created. Of course, Mr Kahn is led to the conclusion (although not expressed in this way) that the relationship of system to project in the emergence of order is rather like breathing – we do it and it happens to us[15] and to that extent, breathing and the law are both project and system.

The spark of inspiration to get me writing Part III, was not, however, Paul Kahn’s book, so much as happening upon (during my voyages on the ‘Deep Web’)  the diffident and dulcet diction of  conservative philosopher Sir Roger Scruton. Hearing him elucidate the best of an English conservative outlook, inevitably makes me nostalgic for my homeland. Especially when he elaborates how our common law proceeds from the presumption that each individual is sovereign and free and extracts general principles of rights and responsibilities from doing justice by granting the appropriate remedies to right wrongs in individual cases, rather than requiring the top down imposition of a codified law by a centralized government, with its edicts from on high.

In order for these individual rights to embrace communal rights, all that is needed is to pluralize the first-person singular pronoun ‘I’ to a sufficiently broad conception of the first- person plural ‘we’, when attempting to love our neighbours as ourselves. The question becomes who is our neighbour and how far can we accommodate what Scruton calls ‘oikophilia’[16] or the love of home, connoting both the place which we must leave in becoming ‘man’ in search of the world and yet yearn to return to, like Ulysses in Homer’s Odyssey, who must return home to his mortal wife, leaving his divine companion to do so, such is the allure of home.

The inspiration of hearing this mellifluous voice was since made even more poignant in that I was not aware as I listened that Sir Roger had just made his own final homecoming: he passed away in January this year. His 2012 book ‘Green Philosophy : How to Think Seriously About the Planet’ makes an attractive plea to tackle environmental issues from the bottom up by realizing that environmental problems are generated and resolved by ordinary people, such as no doubt the ones my niece’s father-in-law saw planting trees in China. Nevertheless, they would not be doing it unless a government of which Scruton vocally disapproved[17] was getting them to do so. We need both project and system if we are going to avoid ‘the tragedy of the commons’ by depleting resources to satisfy short term demands. As Scruton himself acknowledged, this will need us to take on Edmund Burke’s critique of restricting any social contract to those currently alive and seeing society in Burke’s words as ‘ a partnership, not only between those who are living, but between those who are living, those who are dead and those who are to be born.’. The same people planting trees to benefit their children in China will likely sweep the graves of their ancestors this 4th April, regardless of Scruton’s concern that they are being treated like robots, by the government that accorded the more than two and a half millennia old Qingming festival, public holiday status as recently as 2008.

How to help them put ‘them’ back into ‘us’ in the US

The challenge of environmental degradation brings to some a begrudging realization that a more expansive notion of the first -person plural and our home is needed, because we realize we are all neighbours now, and the more so will be our children, born and unborn.

When it comes to US attitudes to China being embraced as ‘we’, I am put in mind of Arnold Schwarzenegger’s classic line when the attractive Chinese villainess Juno in ‘True Lies’ asks him breathily from her private jet, ‘ But what about us, Harry ?’ and he replies ‘There is no us, you psychopathic bitch!’.

As I write this President Trump is on Fox News banning flights to the USA from Europe (but not the UK). Europe did not imitate the USA to ban flights bringing the “foreign virus” from China. Yes, that is what he said: too bad that the ‘English-speaking Peoples’ will not be getting that extra runway at Heathrow to take fuller advantage of the Jumbo Jet sized deliberate loophole.  

In order to engender a more inclusive notion of ‘us’ in the US psyche, so as to embrace China and the rest of the world, it will be necessary to appeal to those better angels of America’s nature (never far below the surface, if you know how to woo them out).

We have already seen the outstretch of hands for Michael Sandel’s  more inclusive communitarian political philosophy and its reception in China amongst packed halls of young students, and what that has brought from West to East, producing thought-provoking ‘fusion cooking’ in the ‘Encounters with China’ anthology.

Travelling in the opposite direction it is also instructive to see what Dr Henry Kissinger has called ‘A fascinating study’ in Yan Xuetong’s[18] ‘Ancient Chinese Thought, Modern Chinese Power’. This book seeks to mould together the international relations aspects  of pre -Qin dynasty Chinese philosophy, in the Confucian, Daoist, Legalist and Mohist schools and craft an international relations theory from it for the modern age and a resurgent China taking its proper place in the landscape of global relations and institutions.

The book was conceived in 2007 and a special session was held on it at Davos in 2012, but the author had been encouraged by three intervening events. First , in 2008, when Henry Kissinger visited Tsinghua[19] and told him that he believed China would harness ancient Chinese philosophy rather than either Marxism or liberalism as it emerges as a world power. Secondly, in September 2011, shortly after the book came out , China published its whitepaper on foreign policy China’s Peaceful Development, proclaiming that ‘ Peaceful development carries forward Chinese historical and cultural tradition.’  Thirdly, Joe Biden (currently resurgent in the Democratic primaries) had been photographed holding the book at Chengdu Airport in August 2011. Had it been Donald Trump visiting the famous home of the Panda, the paean to that animal - ‘Eats Shoots and Leaves’, might have been more appropriate reading , although, (hopefully unlikely Biden) he probably would not have got past the cover of either.

Professor Yan’s work concentrates on two foundational elements of the international relations theories of the Warring States period, the one tending to stress hegemony based upon military might and economic power, first and foremost, and the other focusing on the  humane moral authority of the state cloaked with the Mandate of Heaven. In the latter respect we come back again to our overarching theme of the concordances between an Aristotelean and Confucian conception of moral authority and ethical leadership.

Furthermore, the upshot of Professor Yan’s concluding messages also brings us back to the dynamic, Yin and Yang relationship between, ‘project’ and ‘system’ (Paul Kahn’s Origins of Order), or  ‘hierarchy’ and ‘network’ (Niall Fergusson’s The Square and The Tower).  

Yan’s ‘Message for Research into National Power ’ highlights that ‘ In the discussions about hegemonic power in ‘The Stratagems of the Warring States’, political power is the foundation, but this is different from the analysis of the foundation of hegemonic power propounded by contemporary international relations theory. The contemporary theories see material power (territorial area, population, the economy, military affairs) as the foundation of hegemonic power. Even if in recent years scholars have paid more attention to the importance of states’ soft powers, the mainstream view is still that hard power is the basis of soft power.’. His ‘ Message for China’s Strategy for Ascent’  concludes that ‘A strategy for China’s rise must adopt the principle of the balanced development of the factors of comprehensive national power…’.By adopting this principle … ‘China will maintain balanced development of both political and economic power. It is only by constraining the worship of money formed by placing priority on economic construction that the factors of comprehensive power can be developed evenly.’.

At this point, it is worth revisiting and comparing the bleak 1989 prognosis of ‘Li Xiao Jun’ (aka Messrs. Xu and Grayling) in ‘The Long March to the Fourth June’ , where they said ‘The reform process in all spheres in China in the period up to June 1989 was not proceeding well. It did the best in rural areas, but even there it encountered difficulties. The tentativeness, inexperience, and bitter political wrangling which infected the Party as reform was attempted made the chances of success slim. Now that the tragedy of June 1989 has occurred it is exceedingly difficult to see what prospects there are for its continuance.’.

Mainly since those words were written, 70% of the global population raised above the poverty line have been Chinese, some 750,000 people[20]. It is clear that many of the other problems about which ‘The Long Road’ expressed pessimism in 1989 have been addressed more comprehensively than the authors predicted, including tackling corruption in the Party and making progress in legal reforms, although their forebodings may yet be borne out in other respects.  China remains likely to defy predictions from relative insiders and outsiders alike and be a more apt subject than Russia for Churchill’s label as ‘ a riddle, wrapped in a mystery inside an enigma’.

The authorship of the  Four Modernizations (Agriculture, Industry, Defence and Science and Technology) on which the reforms in China have been based ( as reaffirmed after the events of June 1989)  is principally associated with Deng Xiaoping and their launch in 1978, rather than their earlier pronouncement by Zhou Enlai in January 1975 when the Cultural Revolution was still in progress and Chairman Mao immediately had them put back in the box with a campaign dubbed ‘Striking Back at the Right Deviationists’.

The success of the Four Modernizations over the last thirty years may have rested largely on the premise that if you fill the bellies ,the hearts and minds will follow, but what was perceived to be at issue in 1989 and had not gone away in 2019 is how the Party can keep China on a path which avoids the instability it fears being sparked by the envy of relative deprivation combining combustibly with some  more or less inchoate yearning for freedom or enfranchisement. When the jockeying for position in an opaque power structure and the concern that some eye- catching foreign policy aggression may provide a cohesive patriotic distraction from domestic discontent are added to the mix , there is plenty to give the more pessimistic and neurotically inclined cause for sleepless nights.

 A point in common between ‘The Long Road’ and ‘Ancient Thought, Modern Power’ is a concern for ethical content to fill a gap and enable the Good Life to be lived well, although neither book expresses it quite in that way (with AC Grayling trying to maintain his disguise). Both Nietzsche and Dostoevsky have warned, and history has shown us, how bad things can get  if that gap is filled in the wrong way.

 The Long Road really makes no attempt to disguise that its authors yearn for the liberal democratic dream for China, whereas Professor Yan perhaps has a greater reflexive appreciation of the Taoist maxim that the right thing done by the wrong person (e.g. China converting to Western liberal democracy) is typically the wrong thing, and as a professed realist he confines himself, as shall I, to prescriptions for international and not domestic order

It is especially worth noting that the accusation quoted more fully above  that Chinese intellectuals prefer the ‘large quasi -mystical, dogmatic generalizations of Hegel…to the precision and depth of the analytic tradition of Western thought.’ seems wide of the mark, so far as concerns Professor Yan , who describes himself as ‘a typical nationalist’ and bemoans both that ‘the Cultural Revolution destroyed the millennial ethical tradition of China: its sincerity.’ and also that ‘ this spirit of telling lies left behind by the Cultural Revolution has had a very bad influence on our study of international relations.’. Critically, he adds ‘ Because in my scientific work I insist on scientific method, I think theory must be based on reality. A theory removed from reality may sound fine, but it is in fact not objective.’. Perhaps Bertrand Russell, the Godfather of modern analytic philosophy would have approved of this scientific approach as well as preferring the views of the Buddha to the fantasies of Nietzsche.

Before turning finally to some more concrete suggestions for lawyers to help craft a rules-based world order encompassing some fusion of Chinese and Western values based upon reality, I shall pose and tentatively  answer a question about how to best to deal with the concerns expressed in the West about Xi Jin Ping Thought being a front for Neo-Maoism.

From the perspective of both Stalin and Khrushchev, who had ring-side seats, Mao was not their idea of a Marxist.  Stalin was prompted to ask after Mao’s serial refusals to take instruction ‘ ‘What sort of person is this Mao? He claims to be a Marxist, but he does not understand the most elementary truths of Marxism. Perhaps he does not want to understand.’ (Years later Khrushchev said the same thing)’.[21].

A verdict from closer to home was a report drawn up by the son of Lin Bao who had been Mao’s apparent groomed successor in the midst of the Cultural Revolution until he mysteriously died in a plane crash in Mongolia on 13 September 1971. The official story put out by the Party was that he planned to assassinate Mao and take over, but the Long Road simply draws the conclusion that impenetrable machinations at the heart of the Party are perennially a feature influencing China’s destiny in unpredictable ways. The report which the Long Road cites[22] stated ‘ (Mao) is not a real Marxist-Leninist, but the worst feudal tyrant in China’s history, who follows the doctrines of Confucius and Mencius. He decks himself out as Marxist-Leninist but uses the methods of the First Emperor of the Qin Dynasty.’.

So, is Xi Jin Ping the new Mao, and if so which one, hero or villain ? The only ‘realist’ answer worth giving to that question is to take whatever steps we practicably can in the direction of seeing that the headlines of the Thought that bears his name ‘Rule of Law’ and ‘Coexistence with Nature’  are realized so as to make our ‘Common Human Destiny’, one worth having; in that way we shall all be heroes. The concluding sections below contain some modest suggestions to that end.

Three Modest Suggestions (with a BIT on the side)

 As the old African proverb says ‘If you think you are too small to make a difference, you haven’t spent the night with a mosquito’[23]. Even if I cannot follow my own suggestions then, perhaps ,taking my lead from the proverb, I can make the right noise in the right ears to get a reaction (hopefully not blood spattered walls, which is what most of us aim for with mosquitos). So here goes:-

1 Take China at  her word and hold  her to it.

2 Co-author new norms and cultivate mutual understanding.

3 Pursue arbitration and BITs on the side.

Take and China at her Word and Hold her to it

President Xi’s speech to the U.N. at Geneva on 18 January 2017  (fresh out of Davos) and his account of ‘Where did we come from ? Where are we now? And Where are we going?’ is still worth reading. Do this with an appreciation of some of China’s sensibilities ,ambitions and understanding of the world that I have tried to convey in these pieces, as well as a realistic appreciation of what to take at face value and what to take with a pinch of salt.

The pride in China’s achievements and the sense that it is resuming its proper place in the world is palpable and real and the re-espousal of Confucian values  and the Art of War (with the emphasis on avoiding it) is in the shop window.

It is also possible to gain the impression that Donald Trump (despite all the heat and media noise he generates) might after all have done not just China, but the whole world a favour by getting the USA out of the way just sufficiently for China to judge that it can fully participate in a world order authored by the former world war allied powers, in which it is perceived to have had little say (although not necessarily accurately, as we shall see).

 Full opportunity is taken to stake out a belief in multilateralism, partnerships and globalization. China has little choice but to find export markets for its excess industrial capacity as is reshapes itself into a consumer and hi-tech economy heading for carbon neutrality and the removal of the nuclear sword of Damocles.

In expressing a belief in the equality of nations and the need to stay out of one another’s affairs it is tactful not to mention ‘but some are  more equal than others’ and tactical to feign a distaste for hegemony – a planet with a pair of hegemons is much more Yin and Yang.

Despite China’s new-found assertiveness in international institutions, Deng Xiaoping’s ‘Keep a cool head and maintain a low profile. Never take the lead but aim to do something big.’, has not exactly gone away and a pair of memorable phrases with more ancient antecedents have never gone away either – ‘ zi guo, qi jia, pin tian xia’ (administering the country, taking care of the people, promoting peace and prosperity) as a Confucian expression of political philosophy, plus a fourfold manoeuvre  (e.g. for trade negotiations) 1. kow tow (bow head) i.e.  flatter to deceive, 2. an tow (nod head) i.e. grant what is asked to your distinguished guest ,(3)  yao tow (shake head)  i.e. ignore requests and make things difficult, and 4. sha tow (behead) which requires no explanation.

The PRC’s experience with the WTO’s dispute resolution mechanism (which it had no choice but to accept in order to become a member ) may have begun to make it take a fresh look at binding dispute mechanisms even though it prefers conversation, compromise and kicking difficult cans down long roads. Xi Jin Ping expresses the belief that the Thucydides Trap (i.e. war when a rising power challenges an incumbent hegemon)  can be escaped by collaboration and compromise and it is worth taking him at his word with a realistic lookout for a Chinese propensity to get away without having to pay up, if you can.

Co -author New Norms and Cultivate Mutual Understanding

As a partner in the world’s first truly Sino-Western law firm, Weasternisation for all of our lawyers is a daily reality (part ‘project’ and part ‘system’) with many of us working across one another’s geographies but ,as always, preoccupied in our home markets ,so creating a new paradigm takes time and effort. There are many areas in which the coalescence of Chinese and Western skills can be deployed to create new norms, and China is sensibly setting out to attract foreign students who can help with that process in coming years. It suffices to mention two areas to consider creating new norms.

Climate Action Taskforce Recommendations

The Financial Action Task Force’s recommendations in the sphere of anti-money laundering protections are a good example of how international conformity can be achieved by making recommendations for key features of regulation without being overly prescriptive. EU Directives are a similar example with additional teeth at their disposal if not implemented but leaving states a ‘margin of appreciation’ to make the rules with their own equivalent of ‘Chinese characteristics’. In some respects, the UN Climate Change Framework arrangements are developing along these lines and they need to do so quickly as will no doubt be highlighted at this year’s Glasgow meeting, which is five years on from the Paris Agreement so that targets must be reassessed.

English Language Freezone Courts

China has incepted 18 Free Trade Zones. It may like to think about imitating Qatar, the UAE and Kazakhstan by creating courts in them with codified laws in the English language. Chinese law, when written in English ceases to be as alien and scary to businesses that function in English and to their lawyers.

China now has a growing accomplished bilingual legal profession and a cadre of bilingual well- trained commercial judges could be assembled over time and the idea that judicial independence is not a threat to the Executive may take root over time and the idea of the Rule of Law and not just Rule by Law may evolve in China through this experience.

Living in a non-democratic Federal State which is a union of seven monarchies whose indigenous inhabitants are a small minority, because so many foreigners choose to become resident it is easy to see that liberal democracy can be oversold, especially if there is a fair and functional rule of law. Nobody in the West wants China’s system, but we can go much too far in thinking that they want what they see today in America, India or the United Kingdom, or in fearing that the Party wants to impose its governance outside the Middle Kingdom, absent foolish provocation. The more congress between us and the more non-Chinese seek education there, the better we shall understand one another whilst nurturing and preserving our natural ‘Oikophilia’, each for our own homestead.

Arbitration with Sino-American characteristics and BITs on the Side

The Idea of Arbitration

Jan Paulsson ends his characteristically lucid, thoughtful and original work ‘The Idea of Arbitration’ (rather like Lao Tzu’s horseman, finishing his day cantering towards the same sun from which he had galloped away at dawn) saying ‘ So we end where we began, with a story of freedom…’.  

On his journey, he highlights some dubious historical claims made for ancient dispute resolution traditions claiming to be the true forerunners of the modern idea of binding arbitration, of which he says ‘ The idea of arbitration is that of binding resolution of disputes accepted with serenity by those who bear its consequences because of their special trust in chosen decision-makers’ ( a succinct and apt – though avowedly dewy eyed - description) . He favours largely eliminating party-appointed arbitrators and sees the idea of ‘non-neutral arbitrators’ that was once in vogue in the USA as virtually extinct by civilized consensus.  He also favours there being what Fox News would derisively call ‘the Ayleets’ i.e. an elite cadre of experienced international arbitrators (rather in the way that Plato, Aristotle, Confucius and Nietzsche believed in a meritocratic aristocracy).

Paulsson also contrasts the free-market and command economy views on arbitration as follows. ‘So we accept what we call ‘the rule of law’. Yet there is much hesitation in that acceptance. Our attachment to the law varies as we see, or do not see, our reflection in it. We do not cherish the law of the warlord. We want the rule of law, not by law. We also want our law, and thus is born the idea of arbitration. It is about liberty, not only efficiency. Totalitarian states have nothing against efficiency yet are averse to consensual arbitration. What they dislike are individual solutions, out of step with the regimented project.’

There is a great deal of sense and truth in what is said and I certainly believe that arbitration and special tribunals rather than ,almost inevitably cumbersome, International Courts (to which the USA has become increasingly allergic) are the most promising type of forum to be the preferred enforcement mechanism for an evolving international law and rules-based world order.

It may, however be worth trying pull off the conjuring trick of  creating ‘arbitration with Sino-American characteristics’ by combining some of the features about which Jan Paulsson is skeptical ,but which are congruent both with the outmoded American ideas of party nominees, impeachable for culpable wrong-doing, but not for bias, and also with mediation in China. Chinese mediation is not entirely ‘guilty as charged’ of being a ‘dubious historic’ comparison between settlement by village elders, (or ‘in the Majlis’, as we say around these parts) and modern arbitration.

There is certainly plenty of mediation in China, ancient and modern, and I agree with Jan Paulsson that it is the modern experience, which is more pertinent in the real world, despite my interest in legal history.

 A recent article[24] sketches the mediation scene in China , as follows ‘China uses five broad types of mediation. The most regularly used types are “People’s Mediation,” also known as “Civil Mediation” and “Judicial Mediation.” People’s Mediation is conducted by grassroots community mediators. Judicial Mediation is conducted by judges. Other forms of mediation are “Administrative Mediation,” conducted by government officials, “Arbitral Mediation,” conducted by arbitral administrative bodies, and “Industry Mediation,” conducted by respected associations within a particular industry.’ In addition, ‘China has enacted a “People’s Mediation Law,” and it has amended the “Civil Procedure Law” to outline forms of mediation, qualifications for mediation, selection of mediators and procedures for judicial confirmation of mediated settlements. The Supreme Court established a national online dispute resolution platform www.fayuan.com in 2017. Within one year, over 1,000 courts and 12,000 mediation organizations had joined this platform. Through this online mechanism, parties can apply for mediation, select a mediator, attend via video, and sign an agreement through their cell phone, tablet or computer. ‘

A key point in common between China and America is that both court systems have wide experience of compulsory court directed mediation, which can usefully be combined with arbitration in a variety of ways. 

The suspicion of ‘totalitarian’ governments (and indeed governments of many stripes)  towards arbitration, may be enduring, but a lot of  arbitral awards have  ‘flowed under the bridge’ since the days when Moscow directed China to follow its lead and agree to arbitration in Stockholm for the foreign trade engagements of their State trading enterprises. The ICC’s volume of awards is today a fraction of CIETACs, and the Belt and Road is sending SOEs to arbitrate in many jurisdictions.

Anybody who has acted for States and State Enterprises and other large bureaucratic organizations will be familiar with officials and managers who would rather have an adverse award, than stick their neck out to be seen as responsible for a compromise. Mandatory mediators strongly urging settlement can give such officials and managers similar cover to an award when justifying themselves to their superiors, but with a more sensible outcome.

For major bilateral cases that would typically have a three- person tribunal and a tribunal secretary, there is a lot that could be said for having ‘non- neutral’ party appointees permitted ex parte contact with their appointers , but bound to maintain the confidentiality of deliberations (much as a mediator maintains the confidentiality of caucuses, save as permitted by the parties)  with an institutionally appointed chair or umpire and a mandatory mediation phase, by a separate mediator agreed or appointed, not preparatory to arbitration, but as a required ante-room to the final hearing.

In my experience escalation clauses that require mediation before arbitration have the same effect as keeping dogs on the leash, snarling to get at one another, only to behave peaceably once unleashed and when a real fight is imminent.

Of course this formulation may be subject to abuse, but if the ground rules are clear, and the chair is one of Jan’s ‘Ayleet’, he or she can handle it, and I do not concur that this is unacceptable realism , even though it may not be the ideal of three independently appointed competent and experienced neutrals doing justice without fear or favour, between parties serenely awaiting their award (until it arrives and the real fights starts).

BITs on the Side

China  has contracted a good number of  BITs which  can be deployed to protect Chinese cash, which has flowed into its construction companies’ accounts in China, to fund infrastructure investments in Belt and Road destinations around the world.

International arbitration (with or without the Sino-American characteristics )  and the possibility to enforce  climate change obligations via BITs alongside well-crafted investment agreements is a  potential feature of the emerging international order in which China has earned and deserves a larger stake in the post-World War II arrangements than it has had, until recently.

A perfect subject for a case study on the relationship between ‘project’ and ‘system’, ‘network’ and ‘hierarchy’ in  the dynamic emergence of order from chaos, conflict and competition, is the history of how the World Bank emerged from the wreckage of the second world war and in turn gave birth to the earliest BITs and to the ICSID Convention, with the additional impetus of the competition between the Soviet Union and the USA to garner influence amongst the newly independent nations crowding into the United Nations during the 1960s.

This was, of course, part and parcel of the world order born of the 1944 Bretton Woods Conference when 730 delegates of 44 Allied Nations (including the Soviets and China) got together in the White Mountains of New Hampshire[25] and cooked up, both the IMF and the IBRD (International Bank for Reconstruction and Development) which subsequently formalized its early nickname as the World Bank.

In the summer of 1940, when World War II had been going rather better for Adolph than it was by the summer of 1944, he had his Economics Minister, a man called Funk, knock up a ‘New Order’ for the Nazi Empire, which would have had the Deutschemark as the world’s reserve currency against which others could float, without reference to the gold price. John Maynard Keynes was tasked to trash the plan by British Minister of Information, Harold Nicholson[26], but essentially saw it as a jolly good idea if you crossed out Germany and substituted the United Kingdom throughout. In time, a cynic might say, Funk’s ‘project’ was dusted off and became the European Union’s ‘system’– well done Funk! But I digress.

Bretton Woods was in some sense the moment at which Britain and the USA avoided Thucydides Trap, by the declining dominant British Empire, passing the reserve currency baton to the risen challenger, the USA. Bretton Woods revived the peg to gold which Britain had dropped for sterling internationally in 1931 ( whilst keeping the Commonwealth currencies pegged to sterling). FDR had  helped drag the US out of the Depression by torpedoing  a proposed re-establishment of the gold standard in 1933, deriding it as ‘a purely artificial expedient’. He then ‘nationalized’ US gold by Executive Order,  at nearly $10 an ounce below its market value, at circa $20, before incepting other currencies being underwritten by the dollar at $35 an ounce in 1944[27]. You might call this ‘socialism with capitalist characteristics’ and wonder whether the Chinese delegation were taking notes. As we shall, they were, in fact doing that and more.

 In 1946 Stalin rejected  the opportunity for the Soviets to be number three in the Bretton Woods system (after the US and UK) , in the name of the great socialist internationalist mission, and on March 5 that year Winston S Churchill proclaimed (standing alongside President Harry S Truman in Fulton, Missouri) ‘ From Stettin in the Baltic to Trieste in the Adriatic, an iron curtain has descended across the Continent.’. He was right, and President Truman had been paying lengthy attention to his Moscow Ambassador’s ‘Long Telegram’ on containing the Soviets[28] much as President Trump must have briefly read Sean Hannity’s ‘Short Tweet’ on containing Covid 19, before banning flights from Europe to the USA.

Reconstruction of war-torn economies was the IBRD’s first mission from which  the first BITs emerged. The initial impetus for ICSID’s sponsorship by the IBRD was investor protection and dispute resolution in the newly independent states which the capitalists and communists were competing to influence, in the dialectic between communist internationalism and capitalist containment.  ICSID can be seen as a ‘project’ in the shape of a 1962 memo by IBRD’s General Counsel Aron Broches from which the Washington Convention emerged. But today, ICSID is ,of course, the main hub of a massive ‘system’ of BIT arbitrations.

 I am fond of this story of a ‘project’ launched in a memo ,which became a ‘system’, which is set out in ‘The History of ICSID’ by its first deputy Secretary General Antonio Parra.  Antonio in turn encouraged me with an African legal capacity building and ‘rule of law’ project in 2007[29] ,which I first proposed in a note to former British Foreign Office Legal Adviser , Sir Franklin Berman. This went on to become a registered charity and a system arising collaboratively between several leading law firms and corporations who provide on the job training for African lawyers, and great deal more. ILFA sent its first candidate to KWM in China in 2019, whilst in Dubai we hosted a remarkably courageous visually impaired lawyer from Sudan. Former ILFA President Sandie Okoro is now Aron Broches’ successor as General Counsel at the World Bank.

Returning to Bretton Woods, it is important to bear in mind that when the Chinese delegation was sent to scale the White Mountains of New Hampshire,  the Nationalist (Kuomintang) government and not the Party were in charge. Consequently, the extent of China’s participation in the IMF and the fact that it did have a significant role in its design and creation was (almost literally) buried until Dr Jin Zhonghxia of the People’s Bank of China (who was appointed Executive Director for China at the IMF in 2015) exhumed the records from the archives.

Yale educated Kong Xiangxi who headed the 32 strong Chinese delegation (second in size only to the host delegation) was assisted by underground Communist Party member (and Columbia PHD) Jian Tingfu. The delegation’s mission statement was to ‘ maintain China’s international standing; promote international economic co-operation; improve friendship with other countries; enhance technical standards’ (how Xi Jin Ping Thought is that?) .

 Kong gave the reply address to Treasury Secretary Morgenthau’s welcome speech on behalf of the 43 guest states (all represented by Finance Ministers and central bank chiefs). After the Soviets dropped out in 1946, China became the third largest subscriber after the US and UK and actually broke a potentially ‘mission critical’ logjam at the conference, by volunteering an extra $50m subscription without additional voting rights or borrowing rights , in the interests of the greater good and getting the deal done..

As China steps up to its greater role in the world order today, the Party can (as it has often done) rewrite the narrative of its historical engagement with the capitalist world. In Dr Jin Zhonghxia’s article ,laying out what he had discovered in the archives, he not only imputes Dexter White’s ‘strong interest in the socialist course of the Soviet Union’ as the reason why he was not appointed first director of the IMF and was suspected of spying for them, but states ‘Furthermore, John Maynard Keynes’ inclusion of state intervention in his capitalist theory demonstrates that he, too, had assimilated into his works some thoughts of the socialist system’s planned economy – and to a certain extent, had deviated from capitalism’s classic free market policy.’.

Keynes ,as an old Etonian bisexual and serial ‘cottager’ married to a Russian ballerina, was certainly a ‘deviant’ by the standards of a time when Alan Turing was tragically chemically castrated for similar tastes, and perhaps he was simply at Cambridge too soon (1901 -3) and died too soon (1946) to be ensnared in the notorious Philby, Burgess and Maclean spy ring. At all events, it looks like it is up for grabs whether Bretton Woods entailed ‘capitalism with socialistic characteristics’, or vice versa, but either way it seems that Weasternisation has a precedent.

CONCLUSION

Despite perhaps being guilty of a similar romanticism, to that which I have teased Jan Paulsson about above, I do not expect there to be any ‘Kumbaya’ moments between China and the USA anytime soon. We should each maintain our own ‘Oikophilia’ as to how we arrange our affairs at home. But, in the international order there is already a shared premise of the equality of states, tempered to some extent by the principle ‘from each according to its means to each according to its needs’. That is a key principle to balance in confronting the problems caused by climate change. Developing countries saying to developed ones ‘ You guys already got to burn all the fossil fuels so far, it’s our turn now….’ has been swiftly balanced out by China producing more cement in three years than the USA in a century. Fortunately, China and the majority in the USA are beginning to realize, along with the Netherlands Supreme Court, that others’ shortcomings do not excuse us doing, not just our best, but what is required to keep a sustainable home for our children.

Above all, a place in which East and West can make common cause is by embracing a new fusion of Neo-Confucian and Neo-Aristotelean values (discarding some relics of their times) and with a shared emphasis on humane harmony and the ‘Golden Rule’ common to our respective ethics. We need to remain vigilant to the political equivalent of the second law of thermodynamics forcing closed systems to deteriorate over time and producing corrupt oligarchies with tyrannical leaders, so that we can all live good lives well together, tolerating differences, but never tolerating intolerance.

There is a Chinese conception of Hell as an exquisite banqueting suite with tables loaded with delicious dishes, which the guests are cursed to eat with metre-long chopsticks - a bit like trying to stick your elbow in your ear. Heaven ,it turns out, is identical, save that each guest is delicately feeding the one opposite. In the West, on the other hand, we have a saying, that ‘he who sups with the devil should use a long spoon.’. One way or another, we are going to work it out together.

[1] By professors Ian Goldin of Oxford and Mike Mariathasan of KU Leuven

[2] R. (on the application of Friends of the Earth Ltd.) Claimant  - and - Secretary of State for Transport [2020] EWCA Civ 214

[3] The History of Western Philosophy by Bertrand Russell (original copyright 1945) and AC Grayling, The History of Philosophy (2019)

[4] ’ This is AC Grayling’s summary which he describes as ‘abstracted from the obscurity of one of the most impenetrable collections of philosophical texts in the entire canon; they make the fragments of Heraclitus look like Janet and John books.’

[5] He noted her death in his accounts book ‘Obit anus, abit onus’ (the old woman dies, the burden departs)

[6] https://www.youtube.com/watch?v=GQx24qt2sS0

[7] https://www.youtube.com/watch?v=B6WPFH4KPCc

[8] allowing the alternative to prosecute locally for crimes committed on the mainland in the original proposal might have had a better reception

[9] Probably more so outside China than inside.

[10] Director of the China Studies Centre at the University of Sydney and Associate Fellow of Chatham House London

[11] The remaining seven were Deng Xiaoping, Chen Yun, Peng Zhen, Song Renquiong ,Wang Zhen, Li Xiannian and Yang Shangkun.

[12] perhaps a clue that an understanding may lurk here of the subtle but essential difference wrought by substituting ‘of’ for ‘by’ between the words ‘Rule’ and ‘Law’.

[13] Since retiring aged 60 in 2008 , signing Liu Xiaobo’s Charter 8 reform petition , proposing him for the Nobel Prize in 2010 and being detained in Beijing No. 1 Detention Centre in 2014 for a month for celebrating an anniversary of 4 June 1989, Xu Youyu now lives in Flushing New York

[14] (1988) 4 Arb Int’l 141

[15] As described in the unmatched cut glass tones of Alan Watts instructing how to meditate https://www.youtube.com/watch?v=jPpUNAFHgxM

[16] From the Greek word oikos which transliterates to home or household embracing a family its house and its property and servants (or slaves)

[17] Scruton was sacked in April 2019 from an unpaid UK government advisory post for criticism of Chinese government published in a New Statesman interview. He was reinstated following the magazine apologizing for misrepresenting his remarks.

[18] Professor and Dean of the Institute of International Relations at Tsinghua University, Beijing.

[19] Kissinger’s ‘World Order’ and ‘On China’ are a must for any serious student of international relations, whether they share Christopher Hitchens’ view of the man as war criminal or the more nuanced view shared by Professor Yan and Kissinger’s biographer Niall Fergusson, who appreciates a ‘Realist’ view of international affairs.

[20] As claimed by Vice President Wang Qishan in his address to the 2019 Davos World Forum

[21] Long Road page 27

[22] Page 94

[23] I am sure nobody in China would be offended by my suggesting that the Dalai Lama and/or Greta Thunberg have recycled this, and nor should they, because he doesn’t take offence as a tenet of faith , and recycling is her thing anyway.

[24] By Jiang Heping and Andrew Wei-Min Lee, Senior Fellows-China, Weinstein International Foundation

[25] ‘ White Mountains?’ : interesting messaging there, and the conference was also essentially run, by a guy called White, who was later accused of being a ‘red under the bed’ in the McCarthy Era. Dexter White chaired the Bretton Woods commission of which the IMF was born, while John Maynard Keynes ran the one that produced the IBRD. Much of this had been stitched up between the Brits and the Yanks meeting bilaterally in Atlantic City, beforehand, although others were invited.

[26] Husband of Vita Sackville West who together with Keynes are associated with Britain’s prototype LGBT gathering, the Bloomsbury Group

[27] ‘Tricky Dickie’ finally removed the gold linkage in 1971.

[28] An 8,000-word cable from US ambassador to the Soviet Union, George Kennan on 22 February 1946 articulating the containment strategy that was to take the USA to wars in Korea and Vietnam ( ‘project’ and ‘system’ yet again).

[29] International Lawyers for Africa www.ifa.africa.org

THE ANALECTS OF ARISTOTLE PART III