Viewing the Chinese politico-legal system as a corporation
When describing the Chinese politico-legal system, Western commentators naturally compare and contrast it with Western legal systems. The Chinese politico-legal system, however, has enough differences that the Western observer is often unable to understand how the Chinese system actually works. Furthermore, many Western observers are left with the impression that because the Chinese system is so different from Western law that the entire Chinese system must be unfair and incapable of producing economic prosperity. One commonly held belief in the West, for example, is that investment will be limited if law does not provide strong property rights. Empirical evidence, however, suggests that the Chinese system produces economic growth and is generally fair.
Most Western observers are unable to understand the Chinese politico-legal system by comparing it to Western politico-legal systems; therefore, this blog suggests that a different conceptual model may improve understanding of China's politico-legal system. Specifically, this blog hypothesizes that Western observers would be benefit by thinking of the Chinese politico-legal system as similar to a large, Western-style corporation.
Viewing the Chinese system as a corporation is advantageous to the Western observer for at least two reasons. First, it makes it easier to understand the dynamics and values of the Chinese system. Since the differences between how a corporation operates and how the Chinese system operates are so small, this model should help Western thinkers to analogically anchor their analysis of Chinese law.
Second, many Westerners believe that the Chinese system lacks any normative value. They argue that current economic gains are illusory and any appearance of fairness is farcical--they believe the system is inherently unfair and will certainly lead to an economic crisis. When one views the Chinese system through the lens of Western political and legal theories, it is logical to conclude that they are right. The Chinese system lacks so many features that Western jurisprudence considers essential (such as an independent judiciary), that it is natural for the Western thinker to conclude that the Chinese system is defective and normatively undesirable.
Corporations, however, generally enjoy a positive reputation in the West. Furthermore, Western commentators are familiar with the organization, values, and dynamics of corporations. Analogically anchoring the Chinese politico-legal system will make it easier for Western observers to understand what aspects of the Chinese system might be fair and which aspects might contribute to economic growth.
This blog merely sketches the hypothesis that the Chinese politico-legal system is similar to a large, Western-style corporation. To present the hypothesis, it reexamines two prior observations of the Chinese system and compares the observations to corporations. It also examines some general aspects of the political structure to show how it is similar to corporations.
Conceptualizing Chinese statutes and rules as corporate directives
Peter Corne states that Chinese "legal drafting is characterized by the following:
vagueness and ambiguity
broadly worded discretions
general catch-all clauses"
Peter Howard Corne, Foreign Investment in China: The Administrative Legal System 95 (1997).
The six characteristics of drafting above lead to two aspects of Chinese law: 1) the laws are progressively refined as they descend through the levels of government, and 2) authorities implementing the vague laws have broad discretion.
National laws are generally the most broad and vague in China, and the legal rules are refined as other authorities implement them. When the National People's Congress makes a law, it is typically implemented by other, inferior, government entities--provincial governments, administrative agencies, the procurate, and other entities. Those entities sometimes delegate their rule-making power to yet other sub-ordinate entities. As each level of government delegates implementing and rule making authority to lower levels, the rules are typically refined and made less vague. Nevertheless, the final rules tend to be much more general and vague than laws in Western legal systems. See Li Yuwen & Jan-Michael Otto, Central and Local Law Making: Studying China's Experience 22, in China's Legal Reforms and Their Potential Limits (Edward B Vermeer & Ingrid d'Hooghe eds., 2002).
Because the final rules are still vague and general, the implementing authority, and often the actual officials implementing the rule, has broad discretion. The discretion of the implementing authority is so broad that the implementing authority can often break its own rules when making decisions: Corne states, "Even fairly detailed rules are . . . often subject to overriding ministerial or departmental discretion." The power of a regulatory body to change regulations ad hoc and ex post facto is virtually unheard of in Western legal systems, and most Western legal thinkers likely consider it incompatible with a functioning legal system.
These two aspects of Chinese law, refinement of legal rules and broad discretion for officials, are similar to two major aspects of corporations: refinement of corporate directives and broad discretion for corporate managers.
First, corporate directives are quite similar to Chinese legal rules. Executives announce "strategic" goals in vague and broad terms; middle managers refine those strategic goals into general "operational" plans; and front-line managers use those operational plans to make "tactical" decisions. At all levels of the corporation, rules and directives are vague and general; nevertheless, the corporate bureaucracy functions and implements the strategic goals announced by the company's leadership. (Also see this explanation by Venkat.)
Second, the corporate departments and employees that actually implement corporate directives have broad discretion about how to implement those rules. The corporate world refers to the broad discretion given to employees as "empowerment" and it is universally touted as progressive and effective.
When compared to Western legal systems, Chinese laws are unacceptably vague and grant too much discretion to government officials. Viewed as corporate directives, however, one might conclude that Chinese laws are efficient and logical because the central leaders can set broad policy goals and the implementing government officials are empowered to find the most effective means for meeting the policy goals.
Seven features of the Chinese legal system that are analogous to corporations
The major intellectual tradition of China is Confucianism, and the International Commission of Jurists concluded that legal systems grounded in Confucian thought share certain characteristics. Their observations well describe the Chinese politico-legal system today. Again, if compared to Western legal systems, many observers would find the following characteristics undesirable. All of these features however aptly describe a corporation, and that may help people to view some of them as positive.
[The introductory paragraph includes one characteristic and six more characteristics follow in the lettered paragraphs.]
This line of reasoning [Chinese political philosophy such as that of Hsun Tsu], while it did not deny the need for some law to order society, assumed that the emphasis ought to be placed on creating a special class of virtuous rulers who should be allowed to direct society as they felt best without being hamstrung by an extensive body of rules passed down from ages past. It was very much a philosophy of the rule of men and not of law; its ideals were rendered incarnate in an intellectual elite of benevolent philosophers. The states which attempted to realize these Confucian principles were characterized by:
(A) Relatively few statutes or similar materials; such as there were, were couched in broad general language, which tended to be an injunction to comply with certain ethical principles. . . .
(B) Non-publication of administrative materials circulated internally within the government between officials.
(C) A bureaucracy, assumed to be drawn from the intellectual elite, which occupied one of the highest if not the highest prestige positions within the society.
(D) Unification of the judicial and legislative functions in the hands of the executive.
(E) A general dislike for litigation felt by the people and a corresponding lack of "rights consciousness" fostered by active policies of the government. Use of unofficial means of resolving disputes, such as mediation, was encouraged in place of recourse to courts.
(F) Non-existence of a legal profession. Those who sought to argue principles of law while representing the interests of parties were looked upon as pettifoggers and parasites and as making no useful contribution to society.
Barry Hager, The Rule of Law: A Lexicon for Policy Makers 18-19 (2002) (quoting International Commission of Jurists, The Dynamic Aspects of the Rule of Law in the Modern Age 31 (report on the Proceedings of the South-East Asian and Pacific Conference of Jurists, Bangkok, Thailand, 15-19 February 1965)).
The introductory paragraph states that "virtuous rulers  should be allowed to direct society as they [feel] best without being hamstrung by an extreme body of rules passed down from ages past." As shown above, officials in modern China are often free to break the rules that they create. Similarly, courts are not restricted by prior cases because case law is not binding. This is exactly like large corporations. Businesses assume that the executives of a company make decisions in the best interest of the company and that they should have wide latitude to make decisions rather than be constrained by rules made by past executives.
Paragraph (A) echoes Peter Corne's findings, above, and fits well with the China-as-a-corporation hypothesis.
In modern China, Paragraph (B) refers to "internal documents" (neibu guiding) and they are still common--though their use is widely considered to be declining. See Randall Peerenboom, China's Long March Toward the Rule of Law 7 (2002). The major criticism of these documents is that they have an effect on people outside the government, but the government will not let everyone see the documents. This is similar to how corporations protect their internal documents: most corporate knowledge is provided on a need-to-know basis. Businesses justify this practice as simply protecting company secrets, but the result is the same: many rules are unknown to those that are affected by the rules.
Like the Chinese politico-legal system, corporations also unify legislative powers (rule-making power) and judicial powers in the hands of the executive--Paragraph (D). It would be bizarre to think that companies would naturally create "independent" judiciaries to enforce their rules. Collective bargaining agreements that require independent arbitrators prove the rule: it is only through negotiation that the workers are able to remove some of the judicial power from the executive.
Paragraph (E): compared with Western legal systems, people still generally avoid litigation in Chinese courts and favor alternative ways to resolve disputes. One commentator argued that China suffers from the "three nots" (san bu): people
[d]are not sue (bu gangao) because of their fear of retaliation by the government, Are unwilling to sue (bu yuangao) because of their concerns over, among other things, the cost of litigation, and Do not know how to sue (bu dongao) because of their inadequate legal knowledge and weak sense of seeking professional legal advice.
Veron Mei-Ying Hung, Judicial Reform in China: Lessons from Shanghai, 19 Colum. J. Asian L. 97, (2005) Similarly, even in companies with established grievance processes, there is typically a strong dislike of workers who rock the boat. It is common sense that whistleblowers and agitators are likely to be fired or treated poorly by their employer. Hence, most workers "go along to get along" rather than enforce their rights by complaining to others, through arbitration, or by the use of lawsuits.
Finally, Paragraph (F) is still largely true: the legal profession is growing in China, but it is still much smaller and less experienced than the West. The corporate analogs to parasitic lawyers are union organizers and activist NGOs that pressure corporations to make changes that benefit employees and citizens but damage the profits of the corporation.
The description of the Chinese legal system put forth by the International Commission of Jurists could easily be used to describe modern corporations. This suggests that Western observers may better understand the Chinese politico-legal system by analogize it with corporations rather than Western legal systems.
The organizational structure of the Chinese government is similar to a corporation
The Chinese government's organizational structure is not precisely like a corporation, but it has some strong parallels.
As partially described above, China centralizes all legislative, executive, and judicial power into a hierarchy, and the National People's Congress (NPC) is at the top of the hierarchy. The NPC, however, has over 3000 members and only meets for two weeks out of the year. The Standing Committee of the NPC has far fewer members and performs the majority of the functions that the NPC has the power to perform. Still, at over 170 members, the Standing Committee must delegate most power to administrative agencies.
This is similar to the corporate interaction between shareholders, the board of directors, and company executives. Technically, the shareholders have all of the power in a corporation, but they always delegate their authority to the board of directors. The board, in turn, delegates nearly all power to the executives of the company.
At many corporations, one person holds three key positions: Chair of the Board, CEO, and President. One person holding all three positions is able to exercise more control over the company than if they only occupied one office. This same phenomenon occurs in Chinese politics also. The Presidential office is relatively weak, however, the President is usually the General Secretary of the Central Committee of Communist Party of China, and the Chairperson of the Central Military Commission (the state organ that controls the military). By combining the power from the three roles, the individual has significantly more power than if she were only the President of China.
The Chinese politico-legal system is similar to corporations in: legal drafting, the legal process, distribution of power, and political organization. This suggests that Western commentators can better understand the Chinese politico-legal system by making comparisons to Western corporations rather than making comparisons to Western politico-legal systems.
What is Law? It is a deceptively simple question. Every lawyer, and most non-lawyers, think they know what Law is, but most would be hard pressed to define it precisely. A statute against murder is clearly Law. A plate-full of spaghetti is clearly not Law. It is easy to create a definition of Law that covers these two examples, but it is not so easy to deal with the harder examples: unenforced statutes; customs, practices, and principles that are enforced by the courts; administrative and other non-legislative rules; pronouncements and acts of the despot; and the actions of private individuals.
Defining "Law" is further complicated by the natural tendency to inject normative concepts into the description. The statute of a modern, liberal democracy are probably preferable to the pronouncement of a despotic prince, but both are rightly described as Law. A precise definition is free of normative arguments and accurately describes all types of Law.
Similarly, it is easy to fall prey to cultural bias when creating a definition. Common law, civil law, Islamic law, and Chinese law have some similarities and some differences, but they are all Law. A precise definition of Law will avoid any cultural bias and present a universally descriptive picture. This blog post attempts to present a universal and descriptive definition of Law.
This blog argues that Law is anything that reinforces objectively-reasonable expectations about the behavior of others.
An uncontroversial starting point: Law includes the "rules" enforced by courts
Whatever the definition of Law is, it must include those rules (or "laws" with a lower-case L) that courts actively enforce. It is uncontroversial to assert that a validly-enacted rule, properly enforced by an impartial court, is Law. A validly-enacted rule that is not enforced by the courts, however, is not Law. In Poe v. Ullman, 367 U.S. 497 (1961), for example, the U.S. Supreme Court refused to decide if a Connecticut statute barring the use of contraception was unconstitutional because the statute had never been seriously enforced in the 82 years since it had been enacted by the legislature. The Court held that "Deeply embedded traditional ways of carrying out state policy--or not carrying it out--are often tougher and truer law than the dead words of the written text." (Internal quotes removed).
Simply asserting that a rule is Law, as the Connecticut legislature did with this statute, does not make it Law. The rule must have some sort of impact before it can be called Law: it must reinforce expectations. In the Connecticut case, since the statute had not been enforced, the objectively-reasonable expectation was that one could use contraception in Connecticut. Indeed, the Court noted that local drug stores sold contraception "commonly and notoriously." In effect, the Law in Connecticut allowed the use of contraception. The statute's lack of enforcement reinforced the expectations in Connecticut that it was acceptable to use contraception, hence this was the Law.
Dworkin proved that Law also includes "principles"
Courts do not decide all cases only by applying rules; courts also apply principles, and these principles are part of Law. Ronald M. Dworkin convincingly argued that courts are just as bound by abstract principles as they are by concrete rules. Ronald M. Dworkin, Is Law a System of Rules?, in The Philosophy of Law (Ronald M. Dworkin ed., 1977). He used Riggs v. Palmer, 115 N.Y. 506 (1889), to explain the difference between a rule and a principle and to show how courts are bound by both. In Riggs, a grandson killed his grandfather because he wanted to inherit from his grandfather's will. The rule of the case (the little-L law) dictated that the grandson should inherit because there were no laws that explicitly allowed the court to abrogate the will in these circumstances. The N.Y. Supreme Court, however, held that "No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime," and blocked the grandson from inheriting anything. The rules of the case (concrete laws) dictated one result, but the court looked to principles (abstract principles of varying weight that "do not set out legal consequences that follow automatically when the conditions provided are met") to decide the case. Dworkin showed that if the court had not applied this principle in this case (and allowed the grandson to inherit from his crime), then we would have considered the case wrongly decided, therefore, the court was just as bound by principles as it was by rules.
The Riggs case and Dworkin's theory fall neatly within the idea that Law is anything that reinforces objectively-reasonable expectations. In legal systems, such as the common law system, in which courts routinely apply rules and principles, it is objectively-reasonable to expect that some cases will be decided contrary to the rules but in line with commonly-held principles (whatever those principles may be).
Taking all of the above together, Law at least includes the equitable application of rules and principles by the courts.
Law is enforced by actors other than courts
There is a wide gap, however, between "Law is the equitable application of rules and principles by the courts" and "Law is anything that reinforces objectively-reasonable expectations." The next step in bridging this gap is to recognize that many institutions and individuals enforce Law. In the U.S., Congress enforces Law, for example, when it impeaches the President. The President creates, and enforces, Law when she grants a pardon. Neither of these legal acts are reviewable by the courts but they are just as powerful as the courts' application of rules and principles to decide cases. In China, the full power to make rules is originally granted to one institution by the constitution: the National People's Congress. Indeed, any sovereign is fully empowered to declare Law within its domain--the despot is Law.
Law, therefore, includes the application of rules and principles by the sovereign (or the delegate of the sovereign). This definition is similar to John Austin's formulation of Law: rules created by the sovereign and backed by punishment. Many have criticized Austin's definition, especially because it fails to take into account non-governmental institutions that enforce Law. Some civil institutions, such as the American Bar Association, wield power that is virtually indistinguishable from the power of the state. ABA accreditation of law schools, for example, differs only in name from a state licensure system.
Internet regulation and membership in civil organizations provide two more examples of non-governmental organizations exercising power that has the effect of Law. Many aspects of the Internet are governed by private organizations. See, e.g., Henry H. Perritt, Towards a Hybrid Regulatory Scheme for the Internet, 2001 U. Chi. L. Forum 215 (2001). Domain names, a type of property, are regulated by ICANN--a non-profit corporation. Civil organizations regulate access to the benefits of membership by controlling who is admitted to the organization and under what conditions. No where is this more apparent than with religious organizations: membership, benefits, and sanctions can often have a more significant effect than actions by the state.
Finally, a significant amount of Law is enforced by individuals. No state has a comprehensive set of rules (or even principles) to govern all situations. Most family relations and trivial transactions (trivial to the state), for example, are left to the parties to manage. In those situations, Law is enforced by the parties. Relational Contract Theory reflects this idea by suggesting that many contract laws are enforced by the parties rather than by the courts. In a contract situation in which the parties have an ongoing relationship (e.g., a franchise), a breach of contract is rarely disputed in court. Rather, the parties resolve the dispute in the context of their ongoing relationship. When the potential future benefits of an ongoing relationship outweigh the short-term gain of resolving the dispute in court, the parties will enforce the law themselves in a way that allows the relationship to survive.
The courts are not the only actors that enforce laws: executives, legislators, civil organizations, and individuals all enforce Law in varying forms. At the very least, Law is the application of rules and principles (by anyone).
Law is not based only on rules and principles
Dworkin used the terms "rules" and "principles" to refer to standards that are binding on the courts. It is an oxymoron, though, to talk about a despot (a ruler with absolute power) who is bound by anything other than physics, chemistry, and biology. To say that when the despot pronounces Law that she is somehow constrained by a rule or a principle is to say that she is not a despot at all. Since the despot's actions and pronouncements are Law, then Law must be wider than Dworkin's rules and principles. As further evidence, when Law is enforced by individual parties (e.g., family relations), they are partially bound by the rules of their sovereign (the little-L laws) but they are largely free to act as they wish. Again, it is odd to say that they are bound by rules and principles the way courts and legislatures are bound by rules and principles.
In fact, individuals often enforce Law that is contrary to the rules of the state. Robert C. Ellickson famously illustrated that ranchers and farmers in Shasta County, California enforced a set of social norms that sometimes contradicted state statutes. When a rancher violated the social norms of the area by allowing his cattle to damage the property of a neighbor, the neighbor would rarely sue. Instead, the two parties would generally resolve the problem by working together to fix the damage and prevent future incidents from happening. The parties would do this even if the cattle-owner was not legally liable according to the state statutes. If the offending party failed to follow the social norms, then the victim would gossip about the incident, which would lead to reputation costs for the offending rancher. If that failed to work, then the neighbor might resort to a type of self-help: transporting the loose cattle to a remote area. Still, this private enforcement could be for actions that did not violate the laws, rules, or principles of the state. Instead, individuals would enforce the social expectations of their community. This example illustrates that individuals are not bound by rules and principles--instead they are "bound" by expectations.
The definition of Law must include the actions of individuals, organizations, and despots that are acting without the constraints of rules and principles. Defining law as "anything that reinforces objectively-reasonable expectations about the behavior of others" includes all of these situations.
Observing how customary international law is used reinforces this definition
Customary international law is the set of rules that courts enforce based only on the fact that most nations have a custom of following said rules. Customary international law does not include the rules that nations agree to follow by enacting a treaty--it is only those rules that nations follow because they choose to follow them. There is a lively debate about the nature of customary international law especially whether the source of the law is natural law. Some commentators deny the existence of natural law, and the existence of customary international law because it is a derivative of natural law. Using the definition of Law from this blog sidesteps the debate and helps to explain why customary international law is part of Law. No matter what the source of customary international law, many nations apply the rules and principles, therefore it is objectively reasonable for people to expect that customary international law will be enforced by courts, followed by executives, and adhered to by individuals.
Law is not limited to the pronouncements and interpretations of the courts. Law includes all types of actors and institutions: despots and sovereigns, their delegates, civil institutions not associated with the state, and individuals. While some actors are bound by rules and principles, the full body of Law includes decisions and acts that are only bounded by the will and ability of the parties involved. Therefore, Law is anything that reinforces objectively-reasonable expectations about the behavior of others.
In 1913, Wesley Newcomb Hohfeld published a seminal article about fundamental legal terminology. He argued that the description of legal relationships was unnecessarily complicated by a lack of precise use of legal terms. The Hohfeldian system is atomistic in that all legal relationships can be described with only eight terms: right, duty, power, liability, immunity, disability, privilege, and "no-right." These terms form a semiotic system: a set of interrelated terms whose individual meanings are not clear unless viewed in the context of the entire set of terms. There are four fundamental rules that apply to the system: 1) all legal relationships are between exactly two persons, 2) the state's monopoly on violence is necessary to implement the system, 3) each term has one correlative term and one opposite term; and 4) a relationship can be described using either term from a correlative pair.
All legal relationships, no matter how complex, can be described using one or more of the eight terms. Some basic examples include: Person X has a right to exclude from her land Person Y; during war, Person X has the privilege to kill the enemy soldier Person Y. Person X has the power to nullify her contract with Corporation C; and Person X, a foreign diplomat in State S, is immune from prosecution for acts related to her diplomatic role in State S by the court of State S. As these examples show, all relationships are between exactly two legal persons (a natural person, a corporation, or a state).
More complex relationships are constructed by describing multiple relationships. "Ownership" of land in the Hohfeldian system, for example, is a collection of legal relationships: X has the right to exclude Y from the land, X has immunity from Y expropriating the land, X has the power to grant a privilege to Y to enter the land, and X has the duty to not to use the land to harm Y.
Each term has one correlative term and a legal relationship can be expressed using the correlative term. If X has the right to exclude Y, then Y has the duty not to enter X's land. The correlative of X having the privilege to kill the enemy soldier Y is that Y has "no-right" to sue X if X uses her privilege. The correlative of power is liability. If X has the power to nullify her contract with C, then C has the liability that X may nullify the contract. Finally, if X has an immunity from prosecution by S, then S is disabled from prosecuting X.
Basic definitions of the terms
As a semiotic system, it is difficult to understand the individual terms without understanding all of the terms. This section defines the terms, and the remaining sections elaborate the system.
A right is a claim against another person, and the rightholder may summon the violence of the state to prevent or remedy a violation of that right by the other person.
"A duty or a legal obligation is that which one ought or ought not to do. 'Duty' and 'right' are correlative terms. When a right is invaded, a duty is violated." Hohfeld at 32.
The difference between a right and a privilege is one of the hardest things to understand about this system. On close examination, however, there are clear differences.
Relationships are between only two persons. Legal relationships are between only two persons, but one act may affect multiple legal relationships. For example, Corporation C negligently hires truck driver T who, while in the course of duties for C, negligently collides with person P. The one act, the collision, gives rise to two lawsuits. P may sue T for breaching the duty to drive carefully, and P may sue C for breaching the duty to hire qualified workers. Similarly, Y breaches the duty she owed to X not to kill X when she summarily executes X. The State S may criminally prosecute Y, but not because Y breached the duty she owed to X. All legal relationships are between only two persons, therefore, the duty Y owed to X does not in-and-of-itself have anything to do with the State S. Instead, Y owes a duty to the State S not to kill X. A criminal prosecution would be for violating this duty owed to State S. This aspect of the Hohfeldian system provides analytical support for having separate civil and criminal systems because they deal with completely different legal relationships.
Take Persons X and Y. X has a right to live, as related to Y. Every right must have a correlative duty, therefore Y has a duty not to kill X. Now assume that in a war, X and Y are enemy soldiers. Even during war, the right and duty still exist: if Y captures X, then Y cannot summarily execute X. If Y were to summarily execute X, then it would be a breach of Y's duty not to kill X. A breach of a duty can be remedied by state violence, therefore X's estate could sue Y for breach of the duty not to kill X.
If X and Y were to meet on the battlefield as armed combatants, however, Y would have the privilege to kill X. In this case, because a privilege is the opposite of a duty, Y's privilege (to kill an enemy soldier) negates the duty (not to kill X). If Y successfully uses her privilege and kills X during a war, then X's estate has "no-right" to sue Y for breaching Y's duty not to kill X.
A right has the following characteristics: 1) it describes a legal relationship between exactly two legal persons, 2) it must be possible to describe the exact same relationship between the same two legal persons using the term "duty", and 3) the rightholder must be able to summon the state's monopoly on violence to prevent or remedy a breach of the correlative duty.
In contrast to a right, one may not summon the violence of the state to prevent or remedy a "violation" of a privilege. In the above example, Y has the privilege to kill X because they are enemy soldiers. To contrast right and privilege, recast the privilege to kill enemy soldiers as a "right." All rights have a correlative duty, so the correlative of Y's "right" to kill the enemy soldier X, is X's "duty" to let Y kill her. Furthermore, if X breached her duty to let Y kill her, Y would be able to sue X. In the Hohfeldian system, this relationship is clearly not a "right" to kill X.
The proper correlative of Y's privilege to kill X is X's "no-right" to sue Y if Y attempts to use her privilege. While X may not sue Y if Y uses her privilege, X may still actively interfere with Y's use of her privilege. If Y has a privilege to kill X, X can try to prevent Y from killing her. Again, if this were a duty, X could not interfere with Y's actions, but since Y merely has a privilege, X can interfere and the law will not prevent the interference.
A privilege has the following characteristics: 1) it describes a legal relationship between exactly two legal persons; 2) the privilege of Y, in relation to X, negates a duty owed by Y to X; 3) Y may not summon state violence if X "violates" Y's use of her privilege, even if X actively interferes with the privilege; and 4) X may not summon state violence to prevent Y from using her privilege, even though in the absence of the privilege, Y would owe a duty to X to not perform the same act.
A word on jural opposites
Two terms are jural opposites if one negates the other. As shown above, a privilege negates a duty. It is sometimes useful to speak about a lack of privilege or a lack of duty. In the above example, it is acceptable to say that Y does not have the privilege to summarily execute the enemy soldier X. Y is under a duty not to kill X, and it is logically equivalent to say that Y has "no-privilege" to kill X.
Concomitant rights blur the distinction between a right and a privilege
Identifying a legal relationship as a privilege or a right may be complicated by a concomitant right: a right granted by the state to a privilege-holder with the effect that the privilege appears to be protected by the violence of the state. For example, Y may have an easement to cross X's land. In the Hohfeldian system, this is clearly a privilege. Absent the easement, X has the right to exclude Y, and Y has the correlative duty not to enter the land. The easement/privilege, however, negates that duty and Y may enter without fear of X suing for trespass. The Hohfeldian analysis of this relationship, however, is blurred by the observed fact that Y could sue X if X unreasonably interfered with the easement.
As explained above, one may actively interfere with a privilege without fear of a lawsuit. Yet, the privilege-holder (Y has an easement) may sue X if X unreasonably interferes with the privilege (the easement). The Hohfeldian system explains this situation with concomitant rights. When Y acquired her privilege (the easement), the law automatically granted her a right to use that easement free from unreasonable interference by X. The correlative of that right is X's duty to not unreasonably interfere with Y's easement. If the duty is breached, then the lawsuit is for the violation of the concomitant right, and not for a "violation" of the privilege.
Power and liability
Power is the ability to change legal relationships. Take Person X and State S. X normally has the right to free movement, as related to S. S has the duty not to curtail X's free movement. If X is accused of a crime and meets all of the state's jurisdiction requirements, then S has the power to change X's right to free movement. If S indicts, convicts, and sentences X to jail, then S is exercising its power and removing X's right to free movement. Note that removing the right simultaneously removes the duty. Liability is the correlative of power. If S has the power to remove X's right of freedom, then X has the liability that S will remove that right.
As another example, Person X and Corporation C have a contract. X is a minor, and the law allows X to rescind the contract within a reasonable time of reaching the age of majority. The ability to rescind the contract is X's power to change the legal relationship; the correlative is that C has the liability that X may rescind the contract.
Liability is not necessarily a negative term. X owns $1,000 and is feeling charitable. X has the power to transfer ownership of the money to Y. Correlatively, Y has the liability that X will give him the money.
Immunity and disability
As the opposite of liability, immunity is the negation of liability. Take Person X, a foreign diplomat in State S. If X commits a crime, S would normally have the power to prosecute X for the crime. As a diplomat, however, X has immunity from S's courts. The correlative is that S is disabled from prosecuting X.
For a second example, take Corporation C, Corporation D, and Person X. Person X signs a contract with C for the sale of widgets. By signing the contract, X is using her power to create contracts. One provision in the contract, however, states that X shall not sell any widgets to Corporation D. Normally, X has the power to sign a contract with D, but she is under a disability to sign a contract for the sale of widgets with D because of her contract with C.
Under the American legal system, to be guilty of intentional homicide, one must 1) purposely or knowingly 2) commit an act that 3) causes the 4) death of another human being. An omission may be an act if there is a duty to perform the omitted act. People are not generally under a duty to rescue other people who are in peril, but if there is a special relationship between the two people, then the law may impose a duty to rescue.
Three Chinese cases of intentional homicide
Professor Clarke based his hypothesis on three Chinese cases. In all three cases, the court convicted the defendants of intentional homicide. Under the American system, these three cases would have been handled differently than under the Chinese system. Two of them would almost certainly not have resulted in convictions for intentional homicide, and the third might have resulted in intentional homicide convictions but under a different legal theory than that used by the Chinese court.
Husband convicted of intentional homicide for his wife's suicide
As reported in the Chinese news, a court convicted a man of intentional homicide because his wife committed suicide. (Read Google's automatic translation. Alternatively, cut and paste the Chinese article into Dictionary.com's translator to view a more thorough translation and to view the Chinese and English side-by-side.) During an intense argument between the wife and husband, the wife attempted to commit suicide by jumping into a sewage canal. The husband jumped in after her and tried to persuade her to get out. Failing to persuade her, he went to a relative's house, explained the situation, and called the police. From the time he left the canal to the time the police arrived was over an hour, and the wife was dead. The court held that the husband had a special duty to the wife because they were married and that he breached that duty through his "desertion" (mo)--by leaving her in the canal and not preventing her death. (Interestingly, "mo" translates to either the verb "to desert" or to the adjectives "indifferent" or "aloof." This linguistically connects the act of desertion with the reason for the desertion: the husband deserted his wife because he was indifferent to her plight.)
In the American system, the husband would not be guilty of intentional homicide. The husband was not the but-for cause of her death because she was intentionally trying to kill herself; the wife's act of throwing herself in the canal and her act of staying in the water were the but-for cause. The worst crime the husband could be guilty of is criminally negligent homicide for his failure to provide enough assistance to his wife. Of course, this is only possible if he had a duty to prevent his wife from killing herself. Under American law, a special relationship can create a duty to rescue another person from peril, but it does not create a duty to prevent suicide. Therefore, it is unlikely that the husband would be convicted of any crime under American law.
Three men convicted of intentional homicide because they "saw death, but did nothing to assist"
The second case revolves around the drowning death of a thief trying to escape three men who caught the thief trying to steal a bicycle. (Cutting and pasting the following articles into Dictionary.com's translator yields a better translation than Google's translation. First article: in Chinese and Google's translation. Second article: in Chinese and Google's translation.) Three men discovered a 17-year-old thief trying to steal a bicycle belonging to one of the men, and they beat the thief with a wrench and rocks until he escaped. The men chased the boy, so he tried to evade them by swimming across a river. He was too tired, too hurt, or both to make it across, and he started to drown. Not only did the men not help him, but they stood and watched him to make sure that he actually drowned. The three men were convicted of intentional homicide. The prosecutor argued that in "normal" circumstances, people do not have a duty to help others that are in distress. These circumstances, however, required the three men to help. Specifically, the three men "cannot see death and do nothing," buneng jian si bu jiu. In the second article about the case, the author states that all people's lives have equal value, even a thief's life, and when someone is in mortal danger, others have a duty (zeren) to help. (See alsoOtto Malmgren's email in the ChinaLaw archives analyzing these cases, registration required, click "responsibility for death in Chinese criminal law" and then Mr. Malmgren's email.)
In American law, it is possible that these three men would be convicted of intentional homicide, but the reasoning would be slightly different. An American court would likely hold that the three men had a duty to rescue the drowning thief because the three men created the dangerous situation. They intentionally omitted to help him and their omission was the but-for cause of his death. The difference between the Chinese legal rule and the American rule lies in the description of the duty. In the American system, the men have the duty to rescue because they created the dangerous situation. In the Chinese system, anyone who "sees death" has a duty to help. This blog elaborates below on the duty to help those in mortal danger.
A police officer convicted of intentional homicide for "causing" a deadly auto accident
The decedent and two other young men had been drinking and were joyriding around midnight. They had run two consecutive police checkpoints, and when they approached the third, Wang fired two warning shots. After the motorcycle failed to stop, Wang fired again and hit one of the passengers (not the decedent) in the leg. The motorcycle continued for more than a kilometer until it collided with another vehicle and the decedent was killed. . . . The decedent had been the younger of two sons. The elder had drowned not a year earlier. The younger son's death left their mother distraught, and she demanded Wang's arrest. When the Public Security Bureau [the local police] refused to arrest him, she committed suicide in protest. That inflamed the local population, who were already distrustful of the police because of earlier instances of police misconduct and who, according to Zhu, demanded that someone in authority answer for such a death. The remaining family members then organized a sit-in by more than 200 people, which paralyzed local government operations.
The book review asserts that Wang was prosecuted because "social and moral norms were also involved" and that a "wrong had been done by the government" but does not specifically state what norms those were or precisely what action the public perceived as "wrong."
In the American legal system, the police officer would not be guilty of intentional homicide for a number of reasons. First, the police officer was not the but-for cause. The driver should not have driven drunk and even if drunk, the driver should have stopped at the police check points. Having driven drunk and failed to stop at the police check points, the officer fired at the motorcycle. Even if the court found that the officer used excessive force, the shooting did not cause the motorcycle to crash. After the officer fired, and before the crash, the driver had plenty of time to stop driving the motorcycle while drunk. Second, if the court found that the police officer was the but-for cause, it is likely that the officer had the privilege to shoot at the motorcycle to protect public safety. Third, it is possible that the police officer had immunity from prosecution because he was performing his duties when the death occurred.
To explain these cases, there must be a duty of mutual assistance, and rules for causation must allow for more attenuated but-for causes.
The Chinese idiom "jian si bu jiu"
Professor Clarke's hypothesis is that Chinese society believes that someone is always responsible for premature deaths. The existence of the Chinese idiom, "seeing death but not assisting," (jian si bu jiu), is evidence that many people in China agree with him.
Jian si bu jiu is an idiom that means "seeing someone in mortal danger, but not assisting them." It is idiomatic in that it is not simply a descriptive phrase, it also implies a normative ideal--a moral obligation to help the person in mortal danger. Using this idiom implies that the person who fails to assist is morally wrong. (See Mr. Olmgren's analysis on ChinaLaw--link and instructions supra.) It is idiomatic in a second way in that it is often used to mean "seeing trouble, but not assisting." This sense of the idiom is used in all sorts of situations to express the belief that everyone has a moral obligation to help each other.
Certainly, some segments of Chinese society consider jian si bu jiu to be a serious moral issue. This video purports to show a riot in Huzhou, Zhejiang Province because one or more police officers jian si bu jiu. It is not clear from the video if the police officer(s) saw someone in mortal danger or just someone in trouble, but the protestors were so angry with the police for not providing assistance that they tried to flip over a police van while the police were inside!
WARNING: the following video has some graphic violence and might be disturbing to some people. In this video, CCTV, the state owned television station lectures the public about the moral obligation to help others when they are in danger. It shows surveillance video from a bank where a thief viciously stabbed a woman. The bank employees did not help her and they were slow to call the police. During the seven to eight minutes she laid on the floor bleeding, no one helped her. In fact, she fell on a woman's bag, and the other woman retrieved the bag and left the bank without helping the woman at all. The government was appalled and used CCTV to lecture people about the moral obligation to help others.
Jian si bu jiu, as a moral value, is a specific version of the "mutual assistance" communitarian value
While it is certain some people in China believe that jian si bu jiu is a moral wrong, it does not prove that it is consistent with modern Chinese values. This section argues that a moral rule against jian si bu jiu is analytically consistent with the Chinese communitarian value system because it is a specific application of the "mutual assistance" value.
The Chinese Constitution does not have much legal effect, but it is an articulate and clear expression of Chinese communitarian values. The philosophy of Chinese Communism and Marxism focuses on economic issues such as the means of production and the misdeeds of the exploiting class, but there is an important corollary: socialism requires "mutual assistance." Article 6 of the Constitution states that a socialist system is based on the principle of "from each according to his ability, to each according to his work." Under the socialist system, if a person gives 100% of her ability, then the state is obligated to provide her with enough materials to survive. This is only possible if the underlying philosophy of society is based on mutual assistance--each person individually, and society collectively, has a duty to every other person and to the community.
The Constitution expresses the mutual assistance value in many places. The Preamble states, "Socialist relations of equality, unity and mutual assistance have been established among the [ethnic groups] and will continue to be strengthened." Article 51 says that individual rights and freedoms "may not infringe upon the interests of the state, of society or of the collective." Finally, article 54 dictates that all citizens have a duty to safeguard the "interests of the motherland." All of these statements are analytically necessary to support the principle of "from each according to his ability, to each according to his work" and the mutual assistance value.
Everyone in China has the moral right to receive mutual assistance and the moral duty of to provide mutual assistance. If one person of extraordinary ability grows more rice than she needs, then she has the moral duty to share it with those that worked to the best of their ability but were unable to grow enough rice to survive. Said differently, mutual assistance dictates that the failing of one member of society burdens all members of society.
The mutual assistance value in the context of these cases says that when a premature death has occurred, all members of society had the moral duty to prevent the death. This suggests that Professor Clarke's hypothesis is correct: when a premature death occurs, someone must be held responsible.
In fact, the idea that when a premature death occurs, someone must be held responsible, might not be isolated to communitarian value systems. If it is present in a wide variety of value systems, then it would be more likely to be found in the Chinese value system. The Paris riots in 2005 started when two teenagers died while trying to escape the police; and the Paris riots of 2007 started when two teenagers died after colliding with a police car. In both cases, the teenagers probably contributed more to their own deaths than the police officers contributed, but the rioters placed a significant amount of blame on the government for the deaths. Similarly, riots erupted in Australia in 2004 after a teenager died in a bizarre bicycle accident while being chased by police. Again, the teenager likely contributed the most to his death, but the community blamed the police. In Britain, when two babies in the same family die of SIDS (also called crib death or cot death), the parents are often convicted of a crime. People are convinced that two premature deaths in one family are so unlikely that someone must have caused the death. Recent research, however, suggests that this is not true. Even in societies that claim to be founded on liberalism, it seems that some people believe "that deaths don't just happen; someone needs to be held responsible." The evidence that many cultures may believe that deaths do not just happen, someone must be responsible, suggests that this belief probably exists in Chinese culture also.
The first two cases can be explained by applying mutual assistance as a legal duty
While it may be true that mutual assistance is a Chinese moral value, it does not prove that it if it was converted to a legal rule that it would be consistent with Chinese law. This section argues that mutual assistance, as a legal duty, is consistent with Chinese jurisprudence. "Consistent" means that applying mutual assistance as a legal duty would not require courts to alter radically other legal rules in the Chinese legal system.
The tentative definition of a moral assistance duty is "when a premature death might occur, all members of society have a legal duty to prevent that death." It is impossible to prosecute all of society for a premature death, so applying mutual assistance as a legal duty would require courts to figure out who should be criminally responsible for the death. The following sections suggest that the mechanisms for determining who is criminal responsible for the death already exist in general jurisprudence.
The suicidal wife case is explained by a mutual assistance duty and the least-cost-avoider rule
There are two ways to explain why the husband was punished in the first case. The first explanation was relied on by the court: as her spouse, the husband had a special duty to save her. This explanation is problematic because the duty the court identifies is extraordinary. Many legal systems assign a special duty to spouses to rescue the other spouse when the spouse is in peril and needs help to escape the peril. That is not what happened in this case: the wife was in peril because she put herself in peril and she was not trying to escape that peril. The special duty to rescue does not include the duty to prevent suicide. If the husband was guilty of intentional homicide because he breached a special duty, then that special duty must include a duty to thwart suicide. Marriage in Chinese law is not so different from other legal systems to support the idea that the marriage duty is significantly greater than that of other legal systems.
A second, and alternative, explanation is to apply mutual assistance as a legal duty: everyone has a legal duty to prevent the death, but the husband's responsibility is greater than all other person's responsibility, so he should be held criminally responsible. Everyone has a duty to prevent the death, but some of the more likely candidates for criminal responsibility are: the husband for leaving her in the sewage canal; her parents for not teaching her that suicide is wrong; the designer of the sewage canal for not making it sufficiently suicide-resistant; the government official in charge of the canal for not providing sufficient rescue equipment; the husband's swimming instructor for not training him to be a strong enough swimmer to rescue his wife against her will; and the wife's friends for not helping her deal with her marital strife. The tentative definition of the mutual assistance duty above does not make it clear who, if anyone, should be criminally responsible for the death.
A variation of the least-cost-avoider rule from the law and economics view of negligence explains why the husband should be prosecuted instead of someone else. The least-cost-avoider rule is used when multiple parties could potentially avoid a type of accident. According to Law and Economics proponents, negligence laws have been largely based on the least-cost-avoider rule even before a nascent form of the rule was employed by Judge Learned Hand in U.S. v. Carroll Towing, 159 F.2d 169 (2d Cir. 1947). In Carroll Towing, Judge Hand held that a defendant is negligent only if her cost to avoid an accident is less than the expect loss from an accident; expected loss is the chance that the accident might happen multiplied by the damage that would result from the accident. Judge Posner and other researchers have asserted that courts had been defining due care using the Hand Formula for centuries even though the courts never expressed the negligence rules using Judge Hand's economic terms. See Richard A. Posner, Economic Analysis of Law 27, 179-233 (5th ed. 1998). But see Richard W. Wright, Hand, Posner, and the Myth of the "Hand Formula", 4 Theoretical Inquiries in Law 145 (2003).
When more than one person could have avoided an accident, it is not clear how the Hand Formula should be applied. For example, if an accident with an expected loss of $100 could have been avoided if X had spent $20 or if Y had spent $30, then applying only the Hand Formula would suggest that both parties are under a duty to prevent the accident. However, only one of the parties needs to exercise due care for the accident to be avoided, and it is inefficient for both parties to have a duty of due care. In this type of situation--where more than one party can avoid the accident--the least-cost-avoider rule suggests that X should bear the liability because X can avoid the accident for the least cost.
The wife's suicide could have been prevented by many people, so it is not clear where to assign the liability. Applying the least-cost-avoider rule suggests that the greatest duty should be assigned to the party that can avoid the death for the least cost. The husband, who was present at the canal when the wife threw herself in, has the highest burden to save her because he could help save her for the least cost because he was closest to her at the time of the death. A mutual assistance duty explains this case without having to alter radically the remainder of the Chinese legal system; therefore, a mutual assistance duty, in this case, is jurisprudentially consistent with Chinese law.
The drowned bicycle thief case is also explained by a mutual assistance duty and the least-cost-avoider rule
The second case also has two explanations. As described above, an American court could find the defendants guilty because they created a dangerous situation. By creating the dangerous situation, they had a legal duty to rescue the thief when he was drowning. By intentionally omitting to help, they caused his death, therefore it was intentional homicide.
This explanation does not comport with the explanation of the case, however. The court described the breach of the legal duty as "seeing death but not assisting," jian si bu jiu. The court seemed to be holding that any person who saw the thief drowning would have a legal duty to assist. The court did not seem to hold that only those that created the dangerous situation would have a duty to rescue. The explanation of the case is much closer to the definition of the mutual assistance duty than to the special duty to rescue that arises when one creates a dangerous situation.
Again, if the court applied the mutual assistance duty to this case, all people had a duty to prevent the death. The least-cost-avoider rule again explains why the three men should be held criminally responsible instead of other people. The three men could have prevented the death in a number of ways: not chase the boy, save him when he was drowning, or get help when he was drowning. Besides the thief, no one else could have prevented the death for a lower cost than the three men could; therefore, the defendants have the highest burden to prevent his drowning. Like the first case, a mutual assistance duty explains this case without having to alter radically the remainder of the Chinese legal system; therefore, it also supports the assertion that a mutual assistance duty is jurisprudentially consistent with Chinese law.
The mutual assistance duty affects the but-for cause rule
The mutual assistance legal duty states that all people have a duty to prevent a premature death. A necessary corollary of this duty is that, when there is a premature death, all people caused the death in some way. When a premature death occurs, most people's acts that "caused" the death will be highly attenuated. As stated above, under American law, the defendant's act (or omission) must be the "but-for" cause of the death. If the mutual assistance duty exists, however, everyone's acts are the but-for cause for every premature death. The case of the suicidal wife provides a good example. The wife's death could have been prevented if any one of the following acts had not occurred: had the husband successfully saved her; had her parents successfully taught her that suicide was wrong; had the designer of the sewage canal made it impossible for her commit suicide (e.g., by making it too shallow to drown); or had the government provided adequate rescue equipment. Under a mutual assistance duty, all of these acts were a but-for cause of the premature death. As mentioned above, this means that anyone could potentially be prosecuted for intentional homicide when there is a premature death.
The police officer case is explained by a mutual assistance duty and by the rule that intentional acts are more culpable than negligent acts
The police officer case also supports the suggestion that a mutual assistance duty exists in Chinese law and that it is unnecessary to modify substantially other legal rules to apply the duty and explain the outcome of the case.
Again, there are two possible explanations for this case. Mr. Malmgren suggests that this case is best explained by "the often perceived need to placate the 'wrath of the people' (min fen)." He suggests that the police officer was convicted to prevent civil unrest rather than to punish him for an actual misdeed. The "wrath of the people" of the people refers to another Chinese idiom, "bu sha bu zu ping min fen", which means something like "not even death is enough to satisfy the wrath of the people (but we should kill her anyway because it might work)." Some commentators believe, for example, that Zheng Xiaoyu's execution (for corruption while the head of the Chinese food and drug administration) was "a killing necessary to placate the people [bu sha bu zu ping min fen]." Mr. Malmgren's explanation for this case has appeal and may be largely true. As reported by Upham and Zhu, the legal system only prosecuted the police officer after the local population become so angry that they "paralyzed local government operations." A fair interpretation of the events is that the wrath of the people was the only reason for the legal outcome.
On the other hand, it is possible to interpret the events a different way. It could be that the people were upset when the police officer was not prosecuted because they genuinely believed that he was responsible for the death of the motorcycle driver. And the legal result can be explained by applying a mutual assistance duty. Applying the mutual assistance duty requires the court to determine whom, if anyone, should be held criminally responsible for the premature death.
In the prior two cases, the least-cost-avoider rule explained why the particular defendants were punished, but the least-cost-avoider rule does not explain this case very well. A short list of potential defendants from the police officer case includes: whoever sold or served the driver alcohol (similar to a dram shop law); either of the two passengers on the motorcycle because they could have told the driver to stop, not drink and drive, or to drive more carefully; the driver of the other vehicle because maybe she could have been more careful; and the police offer that shot at the deceased because his intentional use of deadly force likely caused the driver to panic and drive more recklessly. Unlike the first two cases, it is not immediately clear which of these parties is the least-cost-avoider. In fact, the driver of the automobile might be the best candidate because they were present at the actual accident.
The police officer's criminal responsibility is still greater than the other parties, however, because his intentional use of deadly force is more culpable than the merely negligent acts of the other parties. In American law, it is a common occurrence that the intentional acts of one actor mitigates the negligent acts of another actor. Three examples readily illustrate this. First, contributory negligence is not a valid defense to an intentional tort. Second, supervening intentional acts relieve liability for negligent acts. Finally, people are generally more culpable for intentional acts than for negligent acts. In the police officer case, the police officer's intentional act (to use deadly force no less) is clearly more culpable than the apparently negligent acts of the other parties.
Again, applying a mutual assistance duty to this case, does not require a substantial modification of other legal rules to explain the outcome; therefore, it is more evidence that a mutual assistance duty is jurisprudentially consistent with Chinese law.
These cases suggest that Professor Clarke's hypothesis is correct. In each case, a premature death occurred, and the defendants were convicted of intentional homicide. The convictions are difficult to explain using the legal rules for intentional homicide found in American law, but the results are explained well if Chinese law includes a mutual assistance legal duty.
In August 2006, in the small town of Jena, a freshman African-American student asked the principal of the high school if African-American students were allowed to sit under the shade tree that the white students typically sat under. The principal told him students could sit wherever they wanted, and the student sat under the tree. The night after he did so, however, three white students hung nooses from the tree. Upset by the nooses, the African-American students held a protest under the tree. The principle of the school called a school assembly and had the police and the local district attorney, Reed Walters, speak to the entire school. Mr. Walters told the school that if they misbehaved that "With one stroke of my pen, I can make your life disappear."
His statement did not ease the tension, and no charges were filed against the three boys that hung the nooses. After multiple fights between blacks and whites on campus, someone burned down the school on November 30. The next night, a black student was attacked at a predominately white party, but no one was charged with a crime. The day after the student, Robert Bailey, was attacked, a white student argued with him at a local corner store. The white student pulled a gun from his truck, but Bailey managed to take the gun away from him. Because Bailey took the gun home with him, he was charged with theft of a firearm. The white student was not charged with anything.
At school the following Monday, a white student, Justin Barker, taunted Bailey by saying that he was beaten by a white guy. In retaliation, some black students later attacked Barker. During the attack, Barker was knocked out, punched, and kicked multiple times. He went to the hospital for a few hours, but was released the same day and went to a school social event later that evening. Reed Walters charged six black students with attacking Barker. The charge was attempted second-degree murder, and even though they were all under 18, he charged them as adults.
Many people believe that the district attorney, Mr. Walters, is overlooking crimes committed by whites and pursuing black students too aggressively. In response to this intense criticism, Mr. Walters wrote a New York Times opinion expressing his views of the situation. He claimed, inter alia, that
I cannot overemphasize how abhorrent and stupid I find the placing of the nooses on the schoolyard tree in late August 2006. If those who committed that act considered it a prank, their sense of humor is seriously distorted. It was mean-spirited and deserves the condemnation of all decent people. But it broke no law. I searched the Louisiana criminal code for a crime that I could prosecute. There is none.
I thought it was odd that Louisiana would not have a statute prohibiting such a blatant threat of violence, so I also searched the criminal code. Unlike Mr. Walters, however, I found a significant number of statutes that he could use to prosecute the three boys that hung the nooses from the school yard tree that set this horrible set of events into motion.
Inciting to riot
Louisiana Revised Statutes (LA-R.S.) 14:329.2
Inciting to riot is the endeavor by any person to incite or procure any other person to create or participate in a riot.
In September 2007, protestors went to Jena to voice their discontent over the disparate treatment of the different students. Two white boys hung nooses from their truck and repeatedly drove by the protestors. The district attorney in Alexandria, not Jena, charged them with Inciting to riot. The facts between these two situations are remarkably similar, so it seems that the three boys in the original noose incident could also be charged with inciting to riot.
Disturbing the peace
Disturbing the peace is the doing of any of the following in such manner as would foreseeably disturb or alarm the public: . . . (4) Engaging in any act in a violent and tumultuous manner by any three or more persons; or . . . (6) Interruption of any lawful assembly of people.
In State v. Murphy, 40 La.Ann. 855 (1888), the defendant's threat to burn the house of another was disturbing the peace because the act "tends to provoke acts of violence and a disturbance of the public order." It is reasonable to think that a threatened lynching would provoke acts of violence or disturb the public order, therefore, hanging the nooses violated this statute. In fact, the hanging of the nooses did prompt a demonstration that the principal thought was so unnecessary and disruptive that he called an assembly to calm things down. The three boys clearly disturbed the peace by hanging the nooses.
Terrorizing is the intentional communication of information . . . that a circumstance dangerous to human life . . . is about to exist, with the intent of causing members of the general public to be in sustained fear for their safety; . . . or causing other serious disruption to the general public.
In State ex rel. J.S., 808 So.2d 459 (La.App. 1 Cir. 2001), a Louisiana appellate court overturned a delinquency finding because the communicated threat did not cause sustained fear or serious disruption. The student, J.S., was accused of writing “Everyone will die May 28, 1999. Be Ready.” in large letters on a school bathroom wall. The court found that the record lacked evidence that the threat caused any fear or disruption and reversed the lower court.
At Jena High School, however, there is ample evidence that the noose threat caused fear and disruption. The African-American students held a protest immediately after the nooses were found that was disruptive enough that the principal called an assembly to address the issues. Fights broke out between students both on and off campus. The school was set on fire and the tree was eventually chopped down. The facts clearly demonstrate that hanging the nooses caused many disruptions.
Tampering with any property of another . . . with the intent to deprive anyone entitled thereto of the full use of the property.
A Louisiana appellate court held that a man who masturbated in his own backyard while looking through a six-foot-high wooden fence at his neighbor while she was in her backyard had tampered with her property within the meaning of this statute. State v. Krueutzer, 583 So.2d 1160 (La. App. 5th Cir. 1991). Hanging the nooses tampered with the property of another and was certainly intended to deprive the African-American students of their right to sit under the tree.
Simple criminal damage to property
Simple criminal damage to property is the intentional damaging of any property of another, without the consent of the owner, and except as provided in R.S. 14:55 [Aggravated criminal damage to property], by any means other than fire or explosion.
Hanging the nooses at least caused nominal damage: the trespass is a type of damage, and some school employee had to be paid to remove the nooses--having to pay to clean up the nooses is at least a nominal damage. It is an open question in Louisiana law whether nominal damages satisfy the requirements of this statute.
No person shall enter upon immovable property owned by another without express, legal, or implied authorization.
Prior versions of this law required that the land be enclosed and that signs be posted, but this version does not require either. Even if the perpetrators of the noose threat were students, there were not given consent to enter the school property to hang nooses or make threats. Since their actions exceeded the scope of their privilege, they were trespassing when they hung the nooses.
Extortion is the communication of threats to another with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity of any description.
"The purport of the statute is to prohibit the use of threats to cause the victim . . . to do an act, or refrain from doing an act." State v. Felton, 339 So.2d 797, 800 (La. Sup. Ct. 1976). In this case, the three boys that hung the nooses wanted the African-American students to refrain from sitting under the tree.
The Reporters' Comment for this statutes states, "The advantage or property the offender is attempting to gain is of little import. By the use of the phrase 'anything of value,' anything susceptible of ownership is included." It does not matter if the value of sitting under the tree is minimal--the goal of the statute is to prevent people from using threats, not to prevent people from gaining "anything of value."
The Reporters' Comment also noted that "The harm or injury threatened need not be physical, but may be harm or injury to the character of the recipient or some third party." Under this statute, it is not necessary that the three boys intended to harm physically any African-Americans. By hanging the nooses, the boys attacked the character and dignity of African-American students, and that violates this statute.
Obstructing public passages
"No person shall wilfully obstruct the free, convenient and normal use of any . . . entrance, corridor or passage of any public building . . . by impeding, hindering, stifling, retarding or restraining traffic or passage thereon or therein."
The image of the tree in this CNN article shows a path (a type of passage) ran around the tree. Furthermore, there is an entrance to the building behind the tree. It is plausible to apply this law to the facts of this case.
A person commits the crime of institutional vandalism by knowingly vandalizing, defacing, or otherwise damaging the following: . . . (3) Any school, educational facility, or community center.
It is not clear what the legal meaning of "defacing" is under this rarely-used statute, but hanging the nooses could plausibly be considered defacing school property. Pennsylvania has a similar law: "A person is guilty of criminal mischief if he: intentionally defaces or otherwise damages tangible public property or tangible property of another with an aerosol spray-paint can, broad-tipped indelible marker or similar marking device." Commonwealth v. Vida, 715 A.2d 1180, 1181 (Penn. Sup. Ct. 1998) (emphasis added). The Superior Court of Pennsylvania held that "[d]efacing or damaging does not by definition mean permanent damage." To meet the definition of "defacing," Pennsylvania does not require lasting damaging and neither does Montana. In State v. Nye, 283 Mont. 505 (Mont. Sup. Ct. 1997), the defendant was charged with "Malicious intimidation or harassment relating to civil or human rights," and one of the elements of this crime is an action that "damages, destroys, or defaces any property of another or any public property." (Emphasis added.) The Court held that the defendant violated the defacement part of the statute when he "affixed bumper stickers that read 'NO I do not belong to CUT' [Church Universal and Triumphant] on state and county road signs." The court held that affixing the bumper stickers was defacement even if the damage to the property was only "nominal."
Hanging the nooses probably only caused nominal damage to the tree, but it certainly defaced school property with its threatening message. The defacement was at least as severe as the bumper stickers from Nye. This Louisiana statute clearly applies to the three boys that hung the nooses.
Wrongful use of public property
Wrongful use of public property is (1) The intentional entering of or onto any public property without the permission of the lawful custodian thereof, or his designated representative, at any time when the public property is not open to the public.
Public accounts of the incident indicate that the three boys hung the nooses at night, when the school was presumably closed.
Prohibition of interference with educational process
No person shall, on the campus or lands of any . . . secondary school . . . willfully deny to students . . . [l]awful use of the property.
The perpetrators of the noose threat clearly intended to deny African-American students use of the shade tree on school property.
Various kinds of assault
LA-R.S. 14:36 Assault defined
Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.
Louisiana courts hold that "The elements of assault are (1) the intent-to-scare mental element (general intent); (2) conduct by the defendant of the sort to arouse a reasonable apprehension of bodily harm; and (3) the resulting apprehension on the part of the victim." See, e.g., State v. Blaise, 504 So.2d 1092, 1094 (La. App. 5th Cir. 1987). This is in contrast to the definition of tortious assault: "An assault is the imminent threat of a battery." See, e.g., Bulot v. Intracoastal Tubular Services, Inc., 730 So.2d 1012, 1018 (La. App. 4th Cir. 1999), remanded on other grounds, 749 So.2d 659 (La. 1999), (emphasis added). The current statutory definition of criminal assault is also in contrast to the Louisiana's older common-law definition of criminal assault: "any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of an immediate physical injury." State v. Aleck, 5 So. 639, 639-640 (La. Sup. Ct. 1889) (emphasis added). There is a reasonable argument that criminal assault only requires apprehension of harm and not imminent apprehension. It is certain that hanging the nooses is not a tortious assault because any apprehension of an assault was not imminent. It is possible, however, that hanging the nooses constituted some kind of criminal assault. Louisiana divides assault into multiple grades and types, and three of them may apply to the facts of this case.
Simple assault is an assault committed without a dangerous weapon.
After seeing or hearing about the noose threats, it seems likely and reasonable that some students felt that they would receive a battery. The facts presented in the media make it unclear whether students had the necessary level of apprehension.
Aggravated assault, LA-R.S. 14:37
Aggravated assault is an assault committed with a dangerous weapon.
Assault on a school teacher is an assault committed when the offender has reasonable grounds to believe the victim is a school teacher acting in the performance of his duties. . . . (b) For the purposes of this Section, "assault" means an attempt to commit on a school teacher a battery or the intentional placing of a school teacher in reasonable apprehension of receiving a battery or making statements threatening physical harm to a school teacher.
If the threat was even partially directed at the school teachers, then this statute applies. The definition of "assault" in this subsection also supports the idea that the threat of violence need not be imminent. Besides excluding the word imminent, the statute specifically uses the word "threat," which is much broader than an imminent battery. Threats include statements that indicate that the battery will take place in the future or that the battery is possibly contingent on some future situation.
Whatever one feels or thinks about the entire Jena Six controversy, it is clear that the three boys that hung the nooses that set off this chain of events should be charged with a crime. As the above list of crimes shows, Mr. Walters claim that no statute covers their acts is patently absurd.
The "power theory" of jurisdiction suggests that a state has jurisdiction over persons found within the territorial limits of that state. This idea is intuitive, but like all legal concepts, there are some hard cases that call for a more nuanced definition. If a person merely flies over a state in an airplane (therefore, the person is within the territorial limits), for example, is that person subject to the jurisdiction of that state? Interestingly, there are situations where that person should not be subject to the jurisdiction of the state even when she is found within the state's territorial limits.
Grace v. MacArthur
In Grace v. MacArthur, 170 F.Supp. 442 (E.D. Ark. 1959), a man was flying on a non-stop flight from Tennessee to Texas. While the plane was over Arkansas, he was served with a summons from, and complaint filed in, the federal court of Arkansas. He filed a motion to dismiss the complaint for lack of jurisdiction over his person, but the court held that because he was served while in a plane over Arkansas that he was within the "territorial limits" of the court; therefore, he was subject to the jurisdiction of the court in Arkansas. (It appears that the ruling was not appealed.) All parties in the case accepted that the territorial limits of the state extend so high as to include airplanes flying over the state.
Blind application of the power theory would lead the court to conclude that a person within the territorial limits of a state is subject to the jurisdiction of that state, however, there are plenty of exceptions to this rule. In this case, the court erred by not examining the reasons why the defendant was within the territorial limits of the state. This blog argues that if the court had examined whether the defendant had purposely availed himself of a privilege granted by Arkansas, then the court would have recognized that he had not done so, and therefore should not be subject to the jurisdiction of the Arkansas courts.
Territorial limits is the first analytical step; purposefully availing oneself is the second step
Generally speaking, a state has jurisdiction over persons and property found within its territorial limits. Pennoyer v. Neff, 95 U.S. 714 (1877). This is a simple concept based on the "power theory" of sovereignty and jurisdiction: a state has power over the people and property found within the state, and a state does not have power over people and property found in other states. A state does not have power over all people found within its territorial limits, however. The fraudulent inducement doctrine and diplomatic immunity are two examples under which a state does not have jurisdiction over persons found within its territorial limits.
These exceptions can be explained with the purposeful availment doctrine: "it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235 (1958). In other words, if a person purposely avails herself of the state's grant of privilege to enter the state, then she is subject to the jurisdiction of the state. The purposeful availment doctrine is normally applied to cases that involve jurisdiction over a corporation or a person that was not personally served within the state. Justice Brennan applied this concept to transient jurisdiction in Burnham v. Superior Court of California, 495 U.S. 604, 637 (1990) (Brennan, J., concurring) when he stated that "By visiting the forum State, a transient defendant actually avails himself of significant benefits provided by the State." (Internal quotes and citation removed.) Conversely, if she does not 1) purposely avail 2) herself of the 3) privilege to enter granted by the state, then she is not subject to the state's jurisdiction over her person.
In addition to explaining the fraudulent inducement and diplomatic exceptions to jurisdiction, the purposeful availment doctrine explains why the Arkansas court should not have exercised jurisdiction over the defendant in Grace v. MacArthur even though the he was within the territorial limits of the state.
The purposeful availment doctrine explains the fraudulent inducement cases
A state normally has jurisdiction over a person found within its territorial limits, but the state does not have jurisdiction over a person that was fraudulently induced into the territorial limits. In Wyman v. Newhouse, 93 F.2d 313 (2d Cir. 1937), for example, the defendant was fraudulently induced to fly to Florida by his former lover for the sole purpose of meeting her. The former lover wanted the defendant to travel to Florida simply so she could serve him with a lawsuit in Florida, and the court held that jurisdiction over a person that is gained by fraud "is null and void." The fraudulent inducement doctrine fits well with the purposeful availment doctrine. When the defendant's sole purpose for being in the state is fraudulently obtained, then the fraud negates the purpose in purposely availing oneself of the privilege of entering the state. Since the sole purpose for entering the state is negated, the defendant is not logically purposely availing herself.
This is easier to see when one compares Wyman to a case in which the court refused to apply the fraudulent inducement doctrine. In Schwarz v. Artcraft Silk Hosiery Mills, 110 F.2d 465 (2d Cir. 1940), the serving party arranged a meeting with the defendant in New York simply so the defendant could be served with a lawsuit in New York. The defendant was already in New York state, however, at a summer house, and the court held that because he was within the territorial limits for a purpose other than the meeting, he was not fraudulently induced into the territorial limits of the state. Again, the purposeful availment doctrine can explain this holding. While the fraud of the plaintiff did negate one of the purposes why the defendant was within the territorial limits of the state, it did not negate all of the purposes. Since the defendant was still purposely availing himself of the privilege of entering the state, he was subject to the court's jurisdiction over his person.
In E/M Lubricants, Inc. v. Microfral, 91 F.R.D. 235 (N.D. Ill. 1981), the court applied the fraudulent inducement doctrine even though there was no obvious fraud. In this case, the serving party agreed to negotiations in good faith, but changed its mind and decided to sue after the plans were made, but before the defendant arrived in the state. The court held that the serving party had a duty to tell the defendant about its changed intentions and not doing so was a fraud upon the defendant. "In circumstances such as these, where plaintiff contributes to defendant's decision to enter the jurisdiction to negotiate a settlement and defendant enters the jurisdiction for that purpose only, the fraudulent enticement doctrine should apply." Calling the plaintiff's actions "fraud" is tenuous, but the purposeful availment doctrine explains the case very well. The defendant's sole purpose for being in the state was to negotiate a settlement. When the plaintiff changed its mind and decided against settlement negotiations, the defendant's sole purpose for being in the state was negated. With his purpose negated, he was not logically purposely availing himself of the privilege of entering the state, therefore the court could not exercise jurisdiction over his person.
The fraudulent inducement cases illustrate that courts must examine the reasons why the defendant was found within the territorial limits of the state before finding jurisdiction over the defendant's person. If the purpose is negated, or otherwise not due to the state's grant of the privilege to enter the state, then the defendant has not purposely availed herself, and therefore is not subject to jurisdiction over her person. Furthermore, synthesizing purposeful availment with fraudulent inducement is perfectly consistent with Justice Scalia's plurality opinion in Burnham v. Superior Court of California, 495 U.S. 604, 613 (1990). In Burnham, the plurality held that the power theory was still the law of the land, but noted that there were some cases where a state could not exercise jurisdiction over persons who were otherwise validly served with a summons while within the territory of the state (citations removed):
Most States, moreover, had statutes or common-law rules that exempted from service of process individuals who were brought into the forum by force or fraud or who were there as a party or witness in unrelated judicial proceedings. These exceptions obviously rested upon the premise that service of process conferred jurisdiction.
A state does not have jurisdiction over the person of a diplomat even when the diplomat is within the territory of the state
A state normally has jurisdiction over persons found within its territorial limits, but it usually does not have jurisdiction over diplomats found within its territorial limits. Article 31 of the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7502, says that diplomats are exempt from the jurisdiction of the receiving state. The purposeful availment doctrine explains why: a diplomat is found within the territorial limits of the receiving state for the benefit of her home state, not to purposely avail herself of the privilege of entering the state. In reality, because she is the agent of her home state, it is the sending state that is purposely availing itself of the privilege of entering the receiving state.
One could view the diplomatic immunities of the Vienna Convention as arising solely from the power theory: the sovereigns originally had jurisdiction over the diplomatic persons but ceded that jurisdiction through the positive law of the treaty. The Convention, however, was merely a codification of existing customary international law. See, e.g., In re Biaz, 135 U.S. 403, 411 (1890). Jurisdiction over diplomats is not a power that sovereigns relinquished through treaty; it is a power that they did not have under customary international law and the purposeful availment doctrine can explain why they did not have the power.
Further supporting the synthesis of the purposeful availment doctrine with diplomatic immunity is the fact that the Convention allows the receiving state to exercise jurisdiction over the diplomat in a few situations. A diplomat can be subject to the jurisdiction of the receiving state, for example, if the diplomat is involved in a commercial transaction "outside his official functions." When the diplomat executes a commercial transaction for her own benefit, then she is purposely availing herself of the privileges of being within the state and "invoking the benefits and protections of its laws." (Hanson v. Denckla, supra.) For that commercial transaction, the diplomat is subject to jurisdiction over her person.
Again, the purposeful availment doctrine explains when a court can exercise jurisdiction over persons found within the territorial limits of the state.
An involuntary act is not enough to satisfy purposeful availment
A potential defect with this theory is that if the airplane from Grace crashed in Arkansas, or if the plane made a forced landing in Arkansas, then the defendant would be able to use Arkansas law (and courts) to enforce any of his rights that may have been infringed. This defect does not exist, however, because the defendant would not have been purposefully availing himself of Arkansas law because a crash or forced landing is an involuntary act.
The classic example illustrating how an involuntary act is not a purposeful act involves a sleeping passenger in a car. Without the passenger's knowledge or consent, the driver of the car purposely drove into a cemetery without the consent of the owner, thus committing trespass. Trespass is an intent-based crime (or tort) and requires that the accused purposely committed the act. The driver of the car purposely committed an act that resulted in trespass, but the sleeping passenger did not purposely commit any such act. The passenger was present in the cemetery, without the consent of the owner, but the passenger did not purposely enter the cemetery, therefore the passenger did not commit trespass. The involuntary act negated the purpose element of the crime.
If the plane crashed or landed in Arkansas, it would not have been through the purposeful act of the defendant. The involuntary act (being on the ground in Arkansas) would negate the purposeful element of purposeful availment.
If this were not true, then both the fraudulent inducement doctrine and diplomatic immunity would be invalid. With the fraudulent inducement doctrine, the defendant still enjoys the protection of the laws in the host state. In Wyman v. Newhouse, supra, if the defendant had been hit by a car, he could have still sued for negligence. Similarly, even though diplomats may not be sued, they may sue others in their host country.
If a person is found within the territorial limits of a state through an involuntary act, then the lack of a purposeful act negates the purpose element in purposeful availment, therefore the courts of the host state may not exercise jurisdiction over her person.
No jurisdiction over the defendant because he did not purposely avail himself of Arkansas law
The Arkansas court in Grace v. MacArthur should have only subjected the defendant to jurisdiction over his person if the court had found that he was within the territorial limits of Arkansas because he was purposely availing himself of Arkansas's grant of the privilege to be in Arkansas. He was clearly within the territorial limits of Arkansas because all of the airspace above Arkansas is within the state's territorial limits, but he was not in the state due to Arkansas having granted him the privilege--he was in Arkansas due to the federal government having granted him the privilege through its sovereignty over the navigable airspace. In fact, Arkansas was without the power to deny him entry into the state.
The defendant was on an airplane that was passing over Arkansas by use of the navigable airways of the United States. The navigable airways are under the exclusive jurisdiction of the federal government, therefore, he was purposely availing himself of a privilege granted by the federal government, not the state of Arkansas. Under 49 U.S.C. sec. 40103(a)(1), the "United States Government has exclusive sovereignty of airspace of the United States." Paragraph (a)(2) grants the privilege to travel through the navigable airspace: "A citizen of the United States has a public right of transit through the navigable airspace." The defendant in Grace was only within the territorial limits of Arkansas because the federal government granted him the privilege to enter the state. He was not purposely availing himself of Arkansas's grant of the privilege to enter Arkansas, therefore Arkansas has no jurisdiction over his person.
As a final note, this theory is not inconsistent with any of the opinions in Burnham, including Justice Brennan's concurrence. See 495 U.S. at 637 n.11 ("As the Restatement suggests, there may be cases in which a defendant's involuntary or unknowing presence in a State does not support the exercise of personal jurisdiction over him. The facts of the instant case do not require us to determine the outer limits of the transient jurisdiction rule.")
This is a rare situation
This result makes intuitive sense: it would be odd to say that a person flying non-stop from Maine to Southern California would be subject to the jurisdiction of so many interposed state courts. On the other hand, it does make sense that the defendant would be subject to the jurisdiction of Maine, California, and the federal government.