以身传道的柯恩教授二三事 Jerry Cohen and Preaching by Example

Written By: 程洁 Jie Cheng

Posted on: June 30, 2020

我与柯恩教授认识已经超过20年了。研究生时代曾听陈小平老师讲柯恩帮助六四学运人物的故事。入职清华后不久,我就见到了柯恩,听他回顾70年代与周恩来、邓小平会面的经历以及中国早期社会和法制状况,感觉像在阅读一本活的历史书。但我们真正有交集,源于对法律援助和政府信息公开的共同旨趣。

柯恩2002年前后访问北京时,我还在主持清华的公民权利救助法律诊所。当时地方政府都在大搞开发建设,农村和城市非法征地和暴力拆迁的情况非常严重。法律诊所接触和代理了很多失地农民、城市拆迁户和经租房主,包括后来成为维权斗士的刘正有、华新民等人。但此类案件的起诉和审理常常收到政府干预,很多朋友和同事私下认为法学院开展诊所教育是不务正业,宪法学者应当专注理论研究。但柯恩对诊所的工作一直赞许有加,给了我极大的鼓励。

我与柯恩的另一个交集源于政府信息公开研究。2003年非典疫情结束后,我参与了国信办有关信息自由与安全的立法研究。2003-4年我有幸作为富布莱特访问学者赴美,期间柯恩专门邀请我去外交关系委员会进行了公开讲座。2007年后,《政府信息公开条例》开始实施,立即引发了大量争议和诉讼,这些新的现象成为我们共同关注的领域。2009-2014年间,差不多每一年我都参加了中美司法与人权对话,与柯恩和其他中美专家一起讨论这个议题。

柯恩最近在反思自己”传教士“一样的中国法之旅。这是他的自谦。因为他不止是一位“教士”,而是开创北美当代中国法研究的”教父“级人物。我个人认为,较之法律教义学(doctrines)上的贡献,柯恩对中国法律道义论上(deontology)的贡献将更为持久。某种意义上,“传教士”思维反映的是美国法律移植和法律文化输出的传统范式。在社会多元和国际关系日渐多极的背景下,难免会遭到抵抗和质疑。但柯恩的传教之旅不同于20世纪上半叶的古德诺教授和庞德教授。柯恩虽然也担任政府顾问,但他始终保持了对不同政见者和各种异议人士的声援和法律援助。这使得柯恩成为一代道德典范,真正的以身传道者。各种研究表明,相比法律创制而言,法律道德的实现更为困难,也是中国未来更为需要的。

柯恩阅历丰富、学养深厚。我对他的了解大约犹如”盲人摸象“,只能是片面的。不妥之处,希望他原谅。也希望我们所有人的片段能够一起还原更加多面的柯恩。但有一点我很确定,就是柯恩虽然年届90,但他一直文以载道,火力全开。我要向他学习,也祝他初心不改,永葆青春。

I have known Professor Jerome Cohen for more than 20 years. When I was in graduate school, Professor Chen Xiaoping told me the story of Jerry helping the June 4th dissidents. Shortly after joining Tsinghua University, I got to meet Jerry in person. When he recounted his experience of meeting with Zhou Enlai and Deng Xiaoping in the 1970s and the early social and legal conditions in China, it was like reading a living history book. Later our paths crossed because of our common interest in legal aid and government information disclosure.

When Jerry visited Beijing around 2002, I was the supervisor of the Civil Rights Assistance Legal Clinic at Tsinghua. At that time, many construction projects were promoted by local governments. Illegal land acquisition and demolition triggered social unrest. The Legal Clinic was approached by many landless farmers, urban demolished households, and other affected homeowners, including Liu Zhengyou and Hua Xinmin, who later became well-known rights defenders. However, the registration and trial of such cases often encounter interferences and pressure from the government. Friends and colleagues of mine also believed that clinical education was a distraction from conventional legal pedagogy, and that constitutional scholars should focus on theoretical research. But Jerry always confirmed the importance of the work of the clinic, which gave me great encouragement.

Another common interest we share is government information disclosure. After the SARS epidemic in 2003 ended, I participated in the State Information Office’s research project on information freedom and security. In 2003-4, I was fortunate enough to visit the United States as a Fulbright scholar. Jerry invited me to give a public lecture at the Foreign Relations Committee. After 2007, the “Government Information Disclosure Regulations” began to take effect, causing lots of controversy and litigation. These new phenomena have also become areas of common concern to us. From 2009 to 2014, I participated in the Sino-US Judicial and Human Rights Dialogue almost every year and discussed this topic with Jerry and other experts from both countries.

Jerry has recently reflected on his own journey of Chinese law as a “missionary.” He is of course being modest: many think of him as not a “priest”, but a “godfather” figure who pioneered the study of contemporary Chinese law in North America. I personally think that Jerry’s contribution to the deontology of Chinese law will be more lasting than that of scholars of legal doctrines. To some extent, the “missionary” thinking reflects the traditional paradigm of transplanting American law and exporting legal cultures. In the context of social pluralism and the increasing multi-polarization of international relations, it is inevitable that they will be resisted and questioned. But unlike Frank Goodnow and Roscoe Pound in the first half of the 20th century, Jerry has always maintained solidarity with the dissidents and various minorities. This makes Jerry a moral icon and a true legal preacher. As other studies have demonstrated, the realization of legal ethics is more difficult than statutory enactment.

Jerry’s rich life experience is beyond any simple narrative. My understanding of him is almost like “blind men touching the elephant”, which can only be one-sided. I hope he will forgive me for the inadequacies. I also hope that all of us can restore a more multifaceted Jerry. But one thing I’m pretty sure is that even though Jerry is 90 years old, he has been the same intellectual with full passion for justice. I want to learn from him, and I wish him follow his own heart and stay young forever.

 

 

 

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