Based on a discussion of consequentialist, pragmatist, and deontological forms of reasoning as applied in debates about Chinese rights-defending, this Article makes two related observations. First, some Chinese rights defenders assess actions merely by whether they will promote institutional reform. They may reject courses of action because they would consider themselves responsible for their bad consequences, such as official reprisals. Their attitude puts them in danger of blinding themselves to the limits of legal reform in China's current constitutional and political structure. Second, according to the more radical view also described here, the case for speaking out against certain wrongs does not rest on predictable consequences. Instead, it rests on the idea of rights-defending as a strict moral obligation toward the victims of abuses, as well as toward human society and toward oneself. Rights activism, according to this second view, cannot always be understood as a constructive contribution to the reform of an existing legal system. While the practice of caution and self-restraint arising from awareness of the potentially dangerous consequences of rights activism may appear to be the only sensible attitude in the current Chinese context, the lawyer discussed here was unable, for what is suggested are fully justified reasons, to practice such caution, as he acted to help those most in need of defense of their rights. The attitude of lawyers and activists like him not only accentuates the deep contradictions in China's current legal and political system. Their experience also indicates the limits of possible reform. At some point, “radical” rights defenders stop appealing to the existing system's legal institutions; and as they stop taking that system seriously, they start calling for the creation of a new system, without, at present, describing a method how to create one. It is important to appreciate this further implication of an approach now taken by some of China's professionally established, prominent, and dedicated rights defenders. After briefly discussing consequentialist, pragmatist, and deontological perspectives on rights activism and institutional law reform strategies in Part II, this Article focuses on the more “radical” approach and the criticisms its proponents experienced. This Article presents the experience of Gao Zhisheng in his effort to try to “play the system” for a Falungong practitioner in 2004 in Part III, describing the contradictions of principle he encountered in Part IV, and then moves on to an account of Gao's and some fellow rights defenders' increasingly radical actions to “defend rights” in Part V. Finally, it discusses the debates about the consequences of rights activism in Part VI and about “politicization” of the work of lawyers in Part VII, which were triggered by these actions.
Asking the Tiger for His Skin: Rights Activism in China,
30 Fordham Int'l L.J. 1209
Available at: http://ir.lawnet.fordham.edu/ilj/vol30/iss4/6