8.2 RIGHTS AND HARMONY

I have already noted that Peerenboom believes the stress on interests in Chinese rights discourse to be related to a belief in the ultimate harmony of all interests. It will be worthwhile, therefore, to take a brief look at contemporary Western views of harmony and conflict as they relate to rights.

8.2.1 Conflict versus Harmony in Western Theorizing

I begin with Dworkin, who announces: “The concept of rights, and par­ticularly the concept of rights against the Government, has its most natural use when a political society is divided, and appeals to coopera­tion or a common goal are pointless” [Dworkin 1977, p. 184]. Dworkin thus strongly implies that rights have their central applications in cases of conflict between an individual’s interest and the interests of others. At some level this must be true: We have seen that rights protect interests, and the notion of “protection” makes little sense unless the interests are being protected from someone who has a conflicting interest. Dworkin’s discussion of rights as “trumps” over common interests, however, implies more than just a local conflict between two people; it suggests that rights regularly protect people against claims based on common goals or the common interest. We have also already noted that Peerenboom believes that Chinese rights discourse downplays the real conflicts at the root of our rights.

Raz disagrees, at least in part. He sees rights as most commonly and naturally grounded in a harmony of interests between individual right­holders and others in their societies.

Raz argues instead that rights tend to serve common interests or goals at the same time that they serve individual interests. He writes that “the weight of the right does not match the weight of the right-holder’s inter­est which it serves, because... the right is justified by the fact that by serving the interest of the right-holder it serves the interest of some others, and their interest contributes to determining the weight due to the right” [Raz 1992, p. 133]. Other people’s interests contribute to the justification of the right, in other words, when they are “harmoniously interwoven with those of the right-holder” [ibid., p. 134], which Raz takes to be the normal case.

Let us consider one of Raz’s examples:

The right of free expression is among the foundation stones of all political democracies. [It] serves to protect the interest of those who have it and who may wish to use it to express their views. It also serves the interest of all those who have an interest in acquiring information from others. But here again the right serves the inter­ests of those who are neither speakers nor listeners.

He adds that for certain people - politicians, writers, and the like - this right means a great deal to their daily lives. For most others, though, it has little direct impact, and “it rightly means less to them than their success in their chosen occupation, the fortunes of their marriages, or the state of repair of their homes” [ibid.].

To the extent Raz is successful in explaining the weight we place on rights by highlighting the ways in which individual rights serve common interests, he relies on the existence of a “wide-ranging consensus” on what the common good is, which consensus he takes to derive in part from “the background of a common tradition” [ibid., p. 141]. In an effort to make the continued existence of such traditions plausible, Raz stresses that heated rhetoric and public controversy are not equivalent to fundamental conflict. He concedes that occasionally there is conflict between individual and common interests, but insists that the primary relation between them is “supportive” [ibid.].

I believe there is much truth in Raz’s analysis: Individual and common interests do tend to reinforce one another in harmonious ways, and this helps us to understand the weight we place on individual rights. For this to be plausible, it is crucial that we distinguish between “common interests” and “state interests,” where “state” is understood to apply to the government and bureaucracy. The interests of a nation’s rulers will usually diverge from the common interests of the whole collectivity: Most obviously, it may well be in the rulers’ interests, but perhaps not in the collective’s, for those particular rulers to remain in power.

I am troubled by one aspect of Raz’s argument. He draws a stronger conclusion than he needs to, and this stronger conclusion is vulnerable to criticism on several grounds. In order to be clear on just what I think we should take from Raz, let me quickly explore these problems. Raz summarizes his argument as having two stages: (1) “the protection of individual... rights serves the common good,” and (2) “the common good served by those rights is, in the majority of cases, more important to individuals than the enjoyment of their own... rights.” This leads him to the conclusion that (3) “therefore... the status the rights enjoy in the liberal democracies is due to their contribution to the common good” [ibid., p. 136]. This conclusion, however, simply does not follow from the two premises. It certainly follows from (1) and (2) that part of the justi­fication for the status that rights enjoy comes from their contribution to the common good, but nothing Raz has said requires the stronger conclusion.

More importantly, (3) as it stands seems to deny that an individual’s interest in dignity or autonomy plays an important role in grounding rights. But Raz himself, in other writings, assigns a high priority to “autonomy-based duties” [Raz 1986, p. 408]: Autonomy is a central con­stituent of our well-being, and our interest in autonomy thus grounds both duties and rights. In addition, Raz’s (3) seems to leave no room for rights in cases where individual and common interests do conflict - even though his discussion of our interest in autonomy could readily ground such rights.

Neither of these criticisms is telling against Raz’s main point, which is simply that the individual and common interests that ground rights are typically “harmoniously interwoven.” He simply needs to more carefully qualify the ways in which he states this conclusion.

Little has been said [here] to challenge directly theories such as Nozick’s [1974], which start from first principles to derive proposi­tions sustaining a view of rights in which their conflict with the inter­ests and moral claims of others [is] central. But enough has been said to suggest that such views are radically revisionary. They gain no support from a balanced understanding of our concept of rights, nor from the role of rights in our moral and political culture. [Raz 1992, p. 141]

Once again, this is completely consistent with having shown only that common interests are a substantial, but not total, explanation of the weight we place on individual rights.

8.2.2 Chinese Harmony

Turning now to Chinese theorizing about the relation between rights and harmony, I begin with activist discourse from 1978 to the present. A con­temporary scholar has written that while there were some important dif­ferences between the Democracy Wall movement and the Tiananmen movement, there was a particularly strong continuity between them in their “inadequate attention to the conflictive nature of interests” [Guang 1996, p. 426]. In each case, he says, democracy “became a symbol of harmony of interests instead of a means for reconciling differences” [ibid., p. 429]. To a certain extent I agree with this analysis, but as we work through what both activists and scholars have said along these lines, we will see that there is an important distinction between trying to remove all differences and create a unity of interests, on the one hand, and respecting at least some differences while creating a harmony of inter­ests, on the other.

Consider, for instance, what Wei Jingsheng said about democracy in his “The Fifth Modernization”:

Democracy regards harmony with individuality as its basic condi­tion of existence; essentially, this is a form of cooperation. Nobody can find any form of totalitarianism without suppression of individ­uality and enslavement of people.

Similarly, in another article from the same period, he writes that

In actual life, different people have different ideas. If people are not free to live and do things as they wish, it is impossible to have large- scale cooperation on a voluntary basis or to establish a cooperative social structure. Hence, to begin with, democracy must be a social system that protects freedom. On the basis of freedom, it must encourage voluntary cooperation and achieve unity of relatively unanimous interests. [Wei 1980b, p. 145]

I take it that the “unity” to which Wei here refers is part of the larger harmony that he seeks: When people with different ideas and interests manage to establish a harmonious social structure, some subset of their interests will, presumably, turn out to overlap and thus be unified. As I will later discuss further, though, such a unity ought not be seen as essen­tial to a harmony of interests.

The scholar cited a moment ago also notes that activists in 1989 “shunned ‘special rights and interests’ and claimed to be ‘spokesmen for the entire nation and the vanguard of social justice’ ” [Guang 1996, p. 428]. He adds that the hunger strikers represented the extreme of self­sacrifice in the name of a collective goal. I agree that we see in these instances evidence of a belief in the unity of all interests. At the same time, as this scholar recognizes, some 1989 activists did explicitly talk of “pluralism.” In a speech delivered by Ren Wanding, the founder of the China Human Rights League in 1978 and again active in the 1989 move­ment, pluralism was highlighted:

I maintain that the long-term goal of China’s democratic movement must naturally be the nonviolent reform of the present social­political structure of unified, centralized party leadership. This struc­ture must be supplanted by a pluralistic social-political structure, a pluralistic democracy, a pluralistic culture, and a pluralistic nation. [Ren 1990 (1989), pp. 122-3]

Ren does not go into much more detail about what he means by “plu­ralism,” other than to make clear he envisions some form of multi-party democracy - a view which, however, did not resonate with all members of his audience [Han 1990, p. 121]. Ren sees pluralism as opposed to unity, but does not explicitly raise the issue of harmony. Let us turn now to academic discourse in the 1990s and see how these themes are developed.

Zhang Wenxian, whose thoughts on the relation between rights and interests we have already discussed, is among those who touch on our current topic. Recall that Zhang wrote

When the state establishes or utilizes law to proclaim various kinds of rights, it has already weighed individual, collective, and social interests in accord with the people’s general will and publicly acknowledged standards of value. Individual and collective rights, like social rights, thus internally manifest the unification of individ­ual, collective, national, and even human fundamental interests, [and thus] all are affirmations of legitimate interests. [Zhang 1992, p- 40]

Zhang also implied that what the state was doing when it engaged in this weighing of interests and determination of the general will was discov­ering people’s “due rights,” which its policies would attempt to realize, as legal rights, to the extent possible.

What does it mean to say that rights “internally manifest” the unity of all interests? Raz’s talk of the ways in which individual and collective interests can be “harmoniously interwoven” together suggests one gloss. Just as for Raz rights are justified by the support they receive from dif­ferent types of interests, so for Zhang rights emerge when individual and collective interests can be jointly protected. There is an important dif­ference between the two views, however: Where Raz speaks of “harmo­nization,” Zhang says “unification.” As I will later discuss further, harmony allows for - indeed, depends upon - difference in a way that unity does not. One way of reading the claim that rights are based on the unification of interests is that rights would protect individual inter­ests only insofar as they did not differ from a collectively determined (or state-determined) standard. In addition, as we will explore in a moment, to the extent that interests are thought to be unifiable, rights can cease to seem worth pursuing at all.

The relationship between rights and harmony has been addressed most explicitly in contemporary China by Xia Yong, a professor at the Chinese Academy of Social Sciences. In the concluding chapter to his The Origins and Foundations of Human Rights:A Chinese Interpretation, Xia argues that human rights and harmony not only can, but also ought to, come hand in hand.^[224] Xia takes as his stalking horse the assertion that Confucian concern with harmony explains the lack of rights talk in the Chinese tradition. He begins by citing several examples of harmony in nature, and then asserts that harmony is actually the basis of the universe, including both humanity and society. He thus applauds the Confucian equation of harmony with “spontaneity (ziran),” which he contrasts with the Western idea of nature - as in “natural law” - as a transcendent source of meaning and order imposed from outside of concrete reality [Xia 1992, p. 187].

It is easy to see what Xia means by saying that spontaneous harmony is the basis of the universe, though we might sometimes be more tempted to speak of “equilibrium” than “harmony.” Anything that persists in the world does so by maintaining a kind of harmony with its environ­ment. Xia mentions the relations between plants and the seasons, for instance; I note that it is only a short step from here to the classic state­ment in Xunzi of the need for humans to similarly harmonize with the seasons (in planting and harvesting, to cite a basic example) if they are to thrive.^[225] Any balanced account of these matters, of course, must also take change into account. Evolution gives us an example of gradual change; attempts by humans to transform our physical environments or to increase crop yields are examples of more rapid changes. Still, the former makes sense only within a framework of success coming from harmonizing with one’s environment (albeit perhaps even better than a predecessor), and the latter can succeed only if the new arrangement establishes a new harmony. Both of these are consistent with Xia’s idea of harmony that is spontaneous, thus emergent, thus neither pre­configured nor eternal.

Xia sees various sorts of struggle or competition (both theoretical and practical) as central to Western political and moral theory, and as central to the emergence of the idea of rights. An important premise of rights, he argues, is the separation and independence of its subjects: In order to hold rights, people must be distinct from one another, and perhaps even have distinct interests [ibid.,p. 182]. Xia looks at traditional Chinese eco­nomic, political, and cultural realities, and in each case finds evidence for inadequate separation between people to ground full-fledged rights. On this basis he tentatively concludes that an overemphasis on harmony was an obstacle to the development of rights thinking in traditional China, but Xia clarifies his finding in the essay’s final section. Harmony and human rights, he concludes, are not incompatible; after all, he has argued that harmony is central to all natural and social processes. Xia even stresses that the traditional system of lifa (rites and laws) was not itself the problem. Instead he lays blame at the feet of the concrete culture that produced both the lifa system of values and, partly through those values, exaggerated the role of harmony in society at the expense of rec­ognizing the realities of conflict. Xia suggests that in principle, lifa and human rights can coexist, though the particular culture (and class society, etc.) that produced the ideas behind lifa was indeed inimical to human rights. Xia’s fundamental idea seems to be this: Systems of social norms are not free-floating, but rather are produced in, and tend to reinforce, particular systems of social and economic organization. In a way, this is just an application of his claim about the ubiquity of harmony, for if a value system and its concrete social and material environments are not in some kind of equilibrium, one or both will change or be rejected. This insight has roots in Marxism, but one need not be a Marxist to accept its wisdom.

How should we think about human rights and the Chinese tradition, then? Xia’s answer is that, first, the traditional social-economic-political structure did pose barriers to the development of human rights dis­course. Xia wants to stress, though, that the obstacles were less the values themselves than the concrete institutions. He insists that something very like those values (lifa) is compatible with human rights, and thus all that would be required to support such a combination, we can conclude, is a social structure congenial to them.

This may sound very speculative, but Xia actually has two such social structures in mind: contemporary China and the contemporary West. Xia notices that harmony comes from a proper balance between separation and connection. Too much separation leads to atomism or individualism (in a pejorative sense); too much connection leads to unity (“ heyi” and “yitong” in Chinese) [ibid., pp. 188-90]. He believes that in the West, competition and conflict are overdeveloped. Moving toward embracing harmony would mean moderating these tendencies, but would not require rejecting human rights. China, according to Xia, traditionally had little sense of opposition or separation, and this has been even more true under many of the last fifty years of communist rule. Now that Xia has introduced the contrast between unity and (mere) harmony, we can more precisely diagnose China’s difficulty: Rather than too much harmony, we should instead say that its values and its social structures have pressed for unity. Xia’s solution to this is to embrace difference to the degree necessary for harmony and human rights to flourish, without going all the way to the selfish individualism he sees rampant in the West.

8.2.3 Engaging Harmony

As we reflect on the Chinese views just outlined, I think that the central question which we have to answer is what to make of the differences between rights views that aim at unity, aim at harmony, or accept conflict. The first, as I have already hinted, I believe we should find problematic; the last, which I will associate with Dworkin for present purposes, is clearly at odds with much Chinese theorizing about rights. If Chinese theorists are to be able to articulate and sustain a distinctive conception of rights, then I believe a great deal will rest on the notion of harmony.

Xia Yong, at least, insists that there is a crucial difference between unity and harmony. Unity leads to stability through making everyone the same; harmony seeks the same end through accommodating differences. In an essay called “Confucian Harmony and Freedom of Thought,” Peerenboom has looked at the question of harmony which, as I noted earlier, he believes to lie at the core of China’s trouble with rights. Much of what Peerenboom says about harmony is very astute, and I will draw on his analysis in a moment. Peerenboom is convinced, though, that harmony ultimately collapses into unity. He argues that Chinese thinkers have held that harmony must be sought through “persuading, cajoling, and manipulating others” to come to share a single vision of the good, and this “single vision” seems to him to require a “Confucian utopia where the interests of the individual and the community coincide” [Peerenboom 1998, pp. 240, 250-1]. Only Western-style deontological rights, he concludes, support “pluralism” by serving as “anti-majoritar­ian” trumps to keep collective interests from overpowering the conflict­ing, divergent interests of individuals.

I do not want to deny that some Chinese thinkers and many Chinese leaders have, throughout Chinese history, attempted to impose a unifor­mity of thinking and valuing. Peerenboom begins his article with a quote from Deng Xiaoping: “We have stressed the need for the strengthening of Party leadership, democratic centralism, and centralization and unifi­cation. The most important aspect of centralization and unification is the unification of thought. This is essential if we are to have unity in our actions.”^[226] My question is whether the kind of unification sought by Deng is aimed at harmony, or whether harmony and unity really are two dis­tinct goals, as Xia Yong has argued.

I think that the seeds of an answer to this question that supports Xia Yong’s view are contained in Peerenboom’s own definition of “harmony.” He writes that “harmony is a contextual concept at odds with the idea of a single, objective, universal normative order. The goal is to combine the diverse elements of the many members of a particular society at a particular time into a single, cohesive whole” [Peerenboom 1998, p. 240]. Harmony is like pluralism, in other words, because both reject the idea of a single, objective, universal normative order. Many versions of the unity idea, in contrast, assume precisely such an order as a way to justify their goal. Still, Peerenboom is bothered by the fact that while harmony posits no single normative order that stands for all time, it does seem to require that at any given point in time, a way of recon­ciling all interests into a “single, cohesive whole” must exist. Thanks to this second kind of singularity, Peerenboom apparently sees unity and harmony as equally problematic.

They are not. Unity demands sameness of thoughts and interests; harmony does not. The “diverse elements” to which Peerenboom refers can think differently from one another, and their interests can diverge. To choose a simple example, members of a family all have different inter­ests, in addition to there being interests which the family as a collective may have, but which individuals may or may not recognize as their own. Jane and her husband Tim want to succeed in their different careers; her success in hers contributes little to his success in his, and may even lead to greater conflicts: Her increased need to travel or longer hours at the office might increase the time he needs to spend away from his office with their children. If they were only two professionals who had been thrown together by chance, there might be little hope for harmony to emerge. Luckily, families’ members do not (in general) conceive of them­selves so narrowly. In addition to being an accountant (let us suppose), Tim is a husband, father, brother, son, and so on, and he recognizes inter­ests and commitments that go along with each of these relationships. He cares about his wife’s professional success for all kinds of reasons, and cares about his children’s well-being for many more. Jane is bound up in a similar net of relationships, with the result that the two of them can probably balance, compromise, tweak, and (perhaps) cajole their way to a harmonious “cohesive whole.” For now, at least. There will be more work to do when she gets a promotion, or he gets a job offer, or whatever.

The contrast between this example of harmony and a case of unity is stark, because unity would require that everyone’s interests be the same. One way of imagining this would be to suppose that everyone in the family had to be committed to Tim’s professional success. Perhaps other values and interests would be allowed, but only insofar as they did not conflict with this overriding goal. Is it good for Tim’s career for him to take a job in Beijing? Then off the family goes, with nary a thought - if their interests and commitments really are unified - to friends, family, or jobs left behind.While moves like this are all-too-familiar parts of recent American life, the psychological picture that unity requires is unsettling, to say the least.

Before reflecting on these contrasting examples, we should pause to consider how relevant family-based examples really are. In the end, issues of rights come up more often in contexts like our diverse, hetero­geneous state, rather than our more homogeneous families. While Chinese Confucians have long relied on an analogy between family and state, contemporary critics have argued that there are important differ­ences between them - one of which might be that the state is more likely to be a site of irreconcilably conflicting interests.^[227] States may in fact be better than families at sustaining themselves in the face of deep conflict and despite an absence of shared values; for one thing, states can rely on coercion to a degree usually not found in families. To say this is not to admit, though, that states are immune to the kind of harmony here dis­cussed. The many ways in which our interests overlap with those of others in a state provide much the same fertile ground for balancing, compromising, and cajoling as that found in a family, in ways that I will touch on later. It bears remembering, finally, that Raz’s original claims were made with respect to the citizens of states.

To what degree can people’s values differ from one another without impairing their ability to achieve harmony? This is the core issue for Peerenboom; he writes that achieving harmony “requires a common value structure. The role of government and particularly the ruler is to establish the basis for such a common value structure by providing ideological guidance and moral leadership” [1998, p. 241]. “Common value structure” is importantly ambiguous. Recall that Raz, too, speaks of a “wide-ranging consensus” on what the common good is, which consensus he takes to derive in part from “the background of a common tradition.” Does this, too, end up collapsing into a unity of interests? I think not. Harmony is a solution to potentially conflicting differences that emerges out of particular configurations of values, traditions, and social and economic conditions. In Xia Yong’s biological analogies, there is no reason to think that common interests predate the emergence of a harmonious equilibrium in an ecosystem; similarly, if a harmonious rec­onciliation of diverse individual interests and various collective interests is possible in a given situation, that need not be based on any prior agree­ment. Indeed, as Peerenboom says, leadership in traditional China, at least, was “predicated on a heightened capacity to perceive patterns in the diversity, to discern possibilities for order where others see only endless chaos” [ibid.].

This may sound extraordinarily idealistic, perhaps depending on sage rulers to make it work. According to neo-Confucian theory, that may have been true. But I think that contemporary Chinese rights theorists have something rather different in mind when they talk of harmony. Or at least, I believe that the tradition of Chinese rights discourse has made available other, more plausible options, whether or not they are what Xia Yong intends. The first thing to consider is the fairly consistent charac­terization by twentieth-century rights theorists of the sorts of interests that we ought to prioritize when seeking to arrive at a harmonious solu­tion. Again and again we have seen reference to fulfilling one’s “per­sonality (renge)” and to protecting that which enables us to be persons (zuoren).This is not the place to explore in detail these criteria, but it is important to note that their open-ended guidance should be helpful in achieving harmony. This is one level - the existence of a common vocab­ulary in terms of which to describe our interests - on which “the back­ground of a common tradition” is important.

Second, recall the ideas of Gao Yihan about harmony, discussed two chapters ago. An obvious route to harmony, suggested by my husband- and-wife example, is negotiation: Where we have diverse but overlap­ping interests, free and cooperative negotiation is perhaps more likely than any other means to reach a harmonious solution. This idea is implicit in some of Gao’s early writings, as indeed it is in Wei Jingsheng’s “Fifth Modernization.” Gao recognized, though, that differences in power can make negotiation problematic. His solution, building on the ideas of his contemporaries in England and elsewhere, was pluralistic sovereignty: Give different bodies in society legitimate powers, rather than reserve all sovereignty for the state. I believe that this once again demonstrates the difference between harmony and unity as goals; those who advocate the latter want to arrogate all power to the state, since only a complete monopoly on legitimate power can lead to unity, as the earlier quotation from Deng Xiaoping recognizes.

It might be objected that notions like “personality” are too diffuse to ground an effective regime of rights; haven’t the experiences of the last seventy-five years amply demonstrated the vulnerability of such rights conceptions to state manipulation? Doesn’t harmony in the end collapse into unity, in practice if not in principle? It seems to me that the answers to these questions depend in large part on whether a rights regime that is based on the idea of harmonizing interests like “personality” can be successfully institutionalized: whether they can, in the terms current in China, be transformed from due rights into legal rights. The difficulties with institutionalizing rights regimes in twentieth-century China have had many causes, not least the fact that many power-holders have explic­itly sought unity, rather than harmony, which has precisely the drawbacks that Peerenboom identifies. To look at only a single example, consider that Sun Yatsen (1866-1925), the founder of the Nationalist Party and widely acclaimed as the father of modern China, favored “revolutionary rights,” which meant rights only for those who were committed to a par­ticular revolutionary program.^[228]

Such difficulties with institutionalizing a rights regime in China apply just as much to conflict-based models as they do to harmony-based ideas, so perhaps the latter are no worse off than the former. My central con­tention here is that the agreement on vocabulary (“personality” and so on) that we have seen may suggest that there is a conception of the common good rich enough to underwrite a wide range of rights in some­thing like the manner that Raz suggested earlier in this chapter. Ques­tions about how much of a “common tradition” is required for harmony to be achievable and about how much common tradition contemporary Chinese can be said to share need careful study. It seems clear, at the very least, that those who believe China can develop an effective rights regime based on the distinctive concept of rights I have been examining here must face squarely the issue of whether the Chinese have, or can re-manufacture, such a common tradition.

Finally, does a stress on the role of harmonized interests in justifying rights imply that there are never conflicts of interest between individu­als and larger groups? Before I answer these questions, recognize that while there may be considerable disagreement about how best to realize goals like the fulfillment of personality, Raz cautions that we should not “equate controversy with conflict of interests” [1992, p. 141]. Vigorous argument can often be about how best to realize ideals, rather than rep­resenting fundamental differences over the ideals themselves. This is not to say that all appearances of conflict are mirages. Raz makes it quite clear that such conflicts persist. While “the range and nature of common goods” constrain the “channels which define the well-being of individ­uals,” this nonetheless “leaves ample room for occasional conflicts between individual well-being and the common good” [ibid.]. Interests which conflict with the common good can also be protected by rights, so long as there are adequately strong reasons for doing so. Raz’s main point, which I believe he shares with his Chinese contemporaries, is that most rights - including those which most obviously protect individuals against the state - are not grounded on conflicts with the common good, but rather on an essential harmony.