Sammyboy RSS Feed
06-12-2014, 01:10 PM
An honorable member of the Coffee Shop Has Just Posted the Following:
I went on a Xian trip and my son told me that only 2 persons made the greatest impact on Chinese Civilisation, Emperor Qin Shi huang and Confucius. Perhaps the Americans can learn a thing or two from this sage.
The following is a link I got from this website.
The author is Robert Ho., taken from his blog...He is treated for his unstable mental state in an Institution.
But he is knowledgeable and writes well...
Why China should place Confucius above the Rule of Law [this new part in bold]
1. Please read this new part in bold in context with my earlier thoughts above, esp the points that firstly, laws are almost all negative, prohibitions and never positive or encouraging and secondly, laws are reactive and piecemeal, being passed only after some evil has been identified or has happened, and refers only to that single, specific evil and thus piecemeal like a plaster, so cannot be a central or complete vision to promote a whole, healthy body.
2. The Chinese probably realised this millennia ago when Confucius [551 to 479 BCE] taught his famous moral and ethical teachings. It is interesting to speculate whether Confucius invented all his teachings or simply compiled them all from existing precepts already written by others or already practised widely by the Chinese. It is also interesting to speculate whether the huge sway of Confucius to this day among all Chinese is due to the power and logic of his precepts or due to cunning Emperors and officials who saw their value in maintaining an orderly society, and hence, promoted them as much for their own control as well as societal good.
3. Whatever, the genius of the Confucius system is that it solves the 2 big problems I identified above in para 1. For example, by providing a moral and ethical framework for all Chinese -- as individuals, as family members with different relations to one another, relations between fellow Chinese of equal rank or standing, or between the Emperor and his people, Confucius put a complete, central vision of what a Chinese should be or aspire to, whether he is an Emperor, official, businessman, commoner, father/son/brother, etc. A kind of Perfect Man, in each and every role he may be. This is the Central Vision so lacking in the Rule of Law. A Chinese need only live life according to Confucius' precepts and automatically, will be perfect and thus never run foul of the law. In other words, laws are not even needed. Society would automatically be orderly, harmonious and fair [all these are related since you cannot have order without fairness or harmony without order].
4. Confucian thinking has been so deeply embedded into every Chinese and Chinese culture that China's 1.3b people today do less crime than the 300m people in the US and this is not due to harsh punishment or repressive communist control. It is thanks to Confucius. Proof of this are the big overseas Chinese communities living in the West and other countries. They do far less crime than other comparable foreign immigrant communities.
5. If you accept my logic, then it follows that China, with a huge 1.3b pop, will do well to keep or reinforce the force of Confucianism rather than rely on the Rule of Law, which is overhyped and over-regarded. All other countries in the world except China, Taiwan, Hongkong, Singapore, Japan, Korea and some of the IndoChina countries, do not have Confucius and therefore need the inferior Rule of Law, which is all they have for society organisation. The Chinese have Confucius and so should strengthen Confucianism and find ways to integrate Confucianism into the Rule of Law, ideally, even to place it at the apex of the Rule of Law. In other words, Rule of Law should be invoked only after Confucianism has failed.
6. In America, the Rule of Law has failed and failed disastrously. There, the Rule of Law has not prevented the US from having the highest crime rates in the world, in history. The jails are numerous and full. The average American will likely commit crime if he has a good chance of escaping the law. Since law [as in para 1] is piecemeal and reactive, many crimes are not even recognised in time or outlawed and thus, disasters like the current financial crisis happen.
7. Although China has had written laws for millennia, the term Rule of Law is Western and its concepts are Western. This by no means, means it is superior, the best or even worthy of being adopted by China or the world. They are simply making do with what they have, because they do not have our superior Confucius system. For example, they also have the concept of Human Rights, not because they thought of it first, or because they are smarter or more humane and civilised, but because human rights abuses were/are so rampant in the West that in horrified reaction, they had to develop and define the concept of Human Rights. In the East, we are more civilised and always have been, so don't abuse human rights and consequently, didn't invent the concept of Human Rights. Just like the Chinese didn't invent Fast Food because all our roadside-type foods are already fast, usually cooked in less time than a MacDonalds hamburger. So it was left to the West to invent Fast Food. The moral of the story is, don't copy everything from the West esp America. Because they are heading for collapse. Just copy the obvious superiorities, such as computers, internet, free markets , some capitalism [but tempered with socialism or communism], reasonably honest media, reasonable personal freedoms to pursue happiness as long as the pursuit of such does not infringe on others [I almost wrote "rights of others" but Rights is another Western, Rule of Law concept that China should debate deeply before accepting it, if ever].
8. America has not always been in systemic collapse. Like their more backward cousins in Europe, they had had the Christian work [and other] ethics, just like the rest of the world has 'conscience' and this worked fairly well. Then, they started innovating and developing farther and faster, developing the most complex society ever, changing faster and faster, until their laws and institutions like their govt fell far behind such rapidly and dangerously innovating big businesses like the banks, social changes like relations between people and families like the gays, medical ethics in advances like organ transplants and stem cell tech, etc, to what you see today. In short, the Rule of Law has failed because NO GROUP OF MEN, HOWEVER BIG, HOWEVER INTELLIGENT AND WELL-MEANING, CAN ANTICIPATE OR RESPOND FAST OR WELL ENOUGH TO RAPIDLY CHANGING SOCIETY TO GOVERN IT ADEQUATELY. When politicians cannot even do SMS, MMS or set up a wireless lan, or understand carbon trading or caps, etc, everybody is in trouble.
9. Along the way, America developed the most 'advanced' Rule of Law ever. So today it has the most lawyers. Every transaction is done to a mass of legal contracts, nothing left to trust or the olden days handshake and honouring one's word. This emphasis on the Rule of Law, or rather, the letter of the contract, means that once you figured out a loophole in the contract, it becomes fair game to take every advantage of it, fair or not. It is also enforceable in court. All this eroded trust, honouring one's word, and fair play. It became a game where winning is all that mattered, no matter how unfairly. In the movie Syriana, one man expostulated to the other "But that's why we have laws -- we have laws so that we can work around 'em!" And since the politicians are corrupt, cater to their self interests and those who funded them or lobbied them, these corruptions compound their inability to keep pace with or even understand the rapid changes in society, leading to tragic consequences for the Rule of Law. Thus, not only is the Rule of Law a failure, govt is also a failure, esp the model of US govt being pushed as an exemplar for the world. Those in China who argue for democracy towards the US model should have their heads examined. China must find its own way, its own form of democracy, maybe the Govt By Referendum form of democracy I have advocated in my blog and to Hongkong's Donald TSANG, which, incidentally, is not incompatible with China's current form of govt, requiring only minor, technical changes.
10. Now comes the hard part, of which I have no confidence I will make sense. If Rule of Law is inadequate, how to improve it? I suggest that firstly, the Rule of Law be de-emphasised. This means that someone suing on the basis of the letter of the contract may not be awarded the lawsuit if the judge and a competent jury think otherwise. In other words, the INTERPRETATION of the judge and jury would be more important. This is only common sense as a group of [hopefully] unbiased and intelligent judge and jury, after hearing all arguments, would make a far fairer judgment than merely ruling on the words and sentences drafted into the contract. Extending this example to criminal cases in which a law is interpretated, the letter of the law should not decide the case. Rather, the INTENTION of the law should be guessed at. This can be difficult. For example, it is not enough to divine the Intention of the law drafter but to go beyond to ask what SOCIETY GOOD did he have in mind when drafting the law? This is quite Confucian because Confucius taught not only about how a subject should behave towards an Emperor and the State but how the Emperor should behave towards his subjects. In other words, the Emperor is also bound by Confucian precepts to be a good Emperor.
11. This would be inefficient because most trials would then probably debate the Society Good of a law before applying it and this actually would be modifying the law through interpretation. In dictatorships and rigid govts, this would be a no-no but if China were to adopt this, it would lead to probably the fairest legal system in the world and in history. I have written about Why Govts Should Almost Never Be Efficient in my blog, which explains why inefficient trials are good. Trials also serve an educational, news, even entertainment, thereby deterrent purpose in modern societies with active media and internet. This means that feedback from the public during a trial should be allowed, not blocked. There is a danger of Trial By Media but the positives include the fact that public attention forces every participant in the trial, from judge to lawyers to jury, to do a better job. Without public attention, trial judges, lawyers and juries are often derelict in their effort and duty. Public attention means that even the President of China may be watching and this is salutary. All trials should be televised by official media or videoed by bloggers or the family members who may want to point out mistrials. This is not revolutionary. All courts keep records of the trial, usually in written transcripts and sound recordings, so this is merely updating it to 21st Century media.
12. To make trials faster and more efficient, and above all, FAIRER, all accused should be allowed to ask for a lie detector test. Modern lie detectors include polygraph machines and even truth serums. While their accuracy is not 100% a combination of these, plus repeated experiments, can be taken into account by the judge, jury, lawyers and the watching public. The accuracy of each device, plus general warnings about relying solely on such devices to determine guilt, should be repeated on each day of each trial.
13. There is one aspect of the Rule of Law which is sometimes cited as its justification, and that is to foster Certainty in business transactions, from foreign investments to deals between companies or individuals and companies. But certainty does not rely solely on the Rule of Law. Certainty is a function of Fairness. And you can achieve Fairness through a Confucian-based Rule of Law. If a foreign business or investor sues in a Chinese court, as long as justice is done and fairness is openly seen as the goal of the court and the entire Chinese judicial system, confidence in the courts and the law will result. There is no need to stick to the letter of the contract. In any case, legal contracts are now worded in such dense legalese that no ordinary person understands it. And there is the question of which language will be the legally binding language of the contract, which adds to the uncertainty of sticking strictly to the letter of the law as against intention and fairness. This is another unfortunate result of over-reliance on the letter of the law. In some cases, a company may have an unfair advantage or clause/s simply because it has a cleverer lawyer drafting the contract than the counterparty. Or a bank cleverly disguises its high-risk bonds as low-risk through dense legalese no buyer can understand, and drafts legal clauses to escape penalty. In such cases, in China's court, there will be redress and justice, but not in a Western court. Allowing any media, esp the foreign media, to televise and video the court proceedings will also greatly increase confidence in China's courts.
14. You in China may not realise the extreme versatility of the English language compared with Chinese. English is a language made for liars and spin while Chinese is far more straightforward and honest. Thus, contracts and laws written in English are capable of very different interpretations and great exactitude must be expended to make it as exact as possible for legal purposes. Even translated into Chinese, this slippery language of English may still be very difficult to pin down so it is far better not to rely on the exact letter of the words in the contract and far better to interpret the Intentions and thus strive to be fair and deliver true justice. This language problem is yet another argument for my Confucian-based Rule of Law. Furthermore, not all foreign investors in China are American or British. There are also Japanese, Germans, French, Arabs and many other languages from the rest of the world. It is absurd for everybody to use English when both counterparties are not English-speaking. So, a court system that frees itself from the constraints of language sentence and grammar and focusses on truth, honest intentions and fairness will be far superior.
15. There is a notion that courts should merely apply the law, not MAKE law. This is cited as the Separation of Powers Doctrine. Let me point out that courts and judges debate law and crime, guilt and innocence, on a daily basis and so are infused with the richest body of experience and expertise on crime and punishment unlike politicians, no matter what their exalted titles. Politicians are further compromised because they have to politick, compromise, horse-trade, listen and even obey special interests and lobbies, and worse, are usually rich elites who have no experience or understanding of how the rest of their people and societies live their lives. Thus, their understanding of their people and societies are far inferior to the courts and judges who daily deal with these. A proposed law may be debated only days or at most, a week in Congress or Parliament, then passed and forgotten by the politicians while the courts and judges debate and study its every word and comma in great detail daily. So who has the richer experience and even expertise -- since most politicians are not even lawyers? Furthermore, a law, once passed, is forgotten by the legislators but continues to be enforced by the police, prosecutors and courts even though this law may be totally outdated and irrelevant. Congress and Parliament do not have my suggestion of setting expiry dates on all laws to ensure they stay relevant, current and above all, FAIR. If courts and judges were to Interpret law, thereby modifying and even making it, every law that seeks to be applied would be scrutinised and have to be justified, thereby ensuring its continuing relevance. Congress and Parliament cannot do this. Only the courts can perform this important function.
16. All this probably means that in considering and drafting every law in Congress and Parliament, the INTENTION of the law must be considered, debated and expressly defined and written as the first part of every law. Then the rest of the law may be written as now. But in the courts, the judges and lawyers would carefully and primarily first consider and place uppermost in importance, this said Intention of the law, then decide guilt and punishment to serve such Intention, rather than as now, according to the letter of the law. Such Intentions can refer to say, keeping order in society, adjudicate between competing interests, set conditions for businesses, define rights of children, minorities, handicappeds, groups such as gays vs non-gays, the powers of provincial, state and even the national govt, etc. All this will reduce the supremacy of Congress, Parliament and politicians and elevate the courts into more than just the current tool to enforce the will of the politicians into becoming a true institution of justice, in the natural justice sense of the word. This is OK because politicians are the problem, not the solution. And the world will be a better place.
17. My ideas will also make Congress and Parliament better institutions and literally force politicians to become better, too. This is because they will not simply make law in their usual politicking, self-interested, compromising, horse-trading, special interests and lobbies dominated fashion, but will have to focus on what is best for society and country -- or state, in the case of state govts. This will help greatly to keep them honest. Further helping to keep them honest will be the courts, where with this new system, the prosecutors and especially the defence lawyers, and the judge and juries, will keep asking and debating the INTENTION/S of the law. No longer is it enough to do the current lazy, if efficient thing, which is to merely apply the letter of the law. There will be more and even agonising debate on broad ideals of what is best for society. At first, every law will be questioned down to its fundamental basics, of why such a law is good for society, why and how it should be applied to achieve social good. Thus, firstly, the politicians will be forced in Congress and Parliament to be honest, then secondly, the courts will help keep them honest by constantly querying their Intentions. Prosecutors and defence lawyers would also keep debating the common good and society good. Ideals would come into both Congress and Parliament and also into every court. Lawyers and especially judges would not only have to be trained in law but also know some broad ideals of the social arts and sciences. But with time, practice and precedents, all cases would soon be dispatched with more efficiency because broad parameters would already be established.
18. I have critiqued the PIECEMEAL, REACTIVE, BELATED, HAPHAZARD AND ONCE-OFF way of current lawmaking. These deficiencies make Law one of the least intelligent inventions of mankind, not surprising since it was invented by rulers-bullies/strongmen and not wise men or philosophers. A further defect is that laws are once-off but for all time, completely permanent until revoked. Obviously, since society is constantly changing, and nowadays changing very rapidly, a permanent law, especially if interpreted strictly to the Letter, is soon outdated and even counterproductive in addition to probably being ineffective as well. Thus, permanent laws are now a bad idea, if it was ever good. What is needed are laws that can evolve and change with society, society ideals and new understandings of itself, as well as new wisdoms. Since all these are works in progress, it follows that laws must also be works in progress because that is the only way laws can keep pace with the ever changing and rapidly changing society. And the only way it can stay fair and relevant and obeyed, because there are too many stupid laws that nobody obeys any more because they are obviously stupid. This acknowledgement that laws are a work in progress will lead to a better respect for laws in general and an appreciation that laws are an institution for improving society and not merely a hotchpotch of prohibitions -- and judges would not have to put on airs, ceremony, robes and wigs to enforce a false respect and respectability. I have also written about how the current laws lack a central vision that can posit the ideal/s that society needs and wants. With my Intentions doctrine, wherein every law is headed with a statement of Intentions, there arises a Central Vision of sorts. You cannot write a statement of Intention without having in mind What Society Should Be or what a perfect society should be. Thus, when all the Intentions in every law are put together, a partial Central Vision appears, necessarily incomplete because it is a work in progress and constantly, organically adapting to changing society mores, from porn to gays, in part defined by lawmakers but also modified and remade by the courts in interpreting it. This partial Central Vision thus comes into existence, whether through deliberate debate in the legislatures and courts, or as unspoken backdrop to the legal thinking behind the passing and interpretation of the laws. Because this Central Vision is thus more formalised instead of the current nebulous, even confused ambiguity, countries can make and interpret their laws more intelligently. For example, China would probably base its entire legal structure on Confucian ethics, which is already in every Chinese. Other countries in the West may base their central vision on democratic, liberal values and rights including human rights. Muslim countries may base their central vision on Islamic beliefs and practices. This is not revolutionary. It is in fact, the practice already as you would know if you commit an offence in an Islamic country. I have merely articulated, defined and extended it to its logical conclusions. This implies that there are no or few universal laws, and international laws must survey ALL legal jurisdictions to compile what are truly universal. This would be good because such a survey would lead to better understanding of what are truly universal values and laws and which are merely Western preoccupations, as is currently the case. With truly universal values and laws established, the world would then be ready for truly International Law. Many writers have written Utopias but these all have the drawbacks of being once-off. They describe a Utopia at one stage of time, which is quickly outdated by real life and real society. A true Utopia is a work in progress, constantly evolving and organically adapting to changing values and mores, especially in our modern, fast-changing times. Almost everything is a work in progress, from software whose version number goes from say, 1.0 to 1.1 or even 2.0 if the changes are big enough, to computers that are frequently upgraded to better specs, to new car models -- everything. Congress and Parliament, with their attention-deficit habits and once-off method of debating and passing laws, cannot create a Utopia alone, but together with my courts and my new doctrine of writing statements of Intentions -- as simply and as easily as that, have the best chance ever of evolving society towards a Utopia.
[B]19. To end, Confucius may have lived millennia ago but he is hugely important to China and the world today. America is proof that 'when you lose your morals, you lose your economy, then your military, then everything'. America is collapsing because of one word that Confucius well understood : Morals.
--
RH: ME ON VIDEO DESCRIBING lky lhl wks NUMEROUS ELECTION RIGGINGS:
http://i-came-i-saw-i-solved-it.blog...ng%20elections (http://i-came-i-saw-i-solved-it.blogspot.com/search/label/Video%20RH%20on%20LKY%20LHL%20WKS%20cheating%20ele ctions)
MY ACQUAINTANCE, MR DAVID DUCLOS, A FORMER POLICE INSPECTOR, AND HIS LAWYER FRIEND, EYEWITNESSED LEE KUAN YEW RIGGING THE 1997 CHENG SAN GRC ELECTION. READ MORE AT MY BLOG ENTITLED "I CAME, I SAW, I SOLVED IT" :
http://i-came-i-saw-i-solved-it.blogspot.com/
Click here to view the whole thread at www.sammyboy.com (http://sammyboy.com/showthread.php?195243-Interesting-Read-Confucius-and-The-Rule-of-Law&goto=newpost).
I went on a Xian trip and my son told me that only 2 persons made the greatest impact on Chinese Civilisation, Emperor Qin Shi huang and Confucius. Perhaps the Americans can learn a thing or two from this sage.
The following is a link I got from this website.
The author is Robert Ho., taken from his blog...He is treated for his unstable mental state in an Institution.
But he is knowledgeable and writes well...
Why China should place Confucius above the Rule of Law [this new part in bold]
1. Please read this new part in bold in context with my earlier thoughts above, esp the points that firstly, laws are almost all negative, prohibitions and never positive or encouraging and secondly, laws are reactive and piecemeal, being passed only after some evil has been identified or has happened, and refers only to that single, specific evil and thus piecemeal like a plaster, so cannot be a central or complete vision to promote a whole, healthy body.
2. The Chinese probably realised this millennia ago when Confucius [551 to 479 BCE] taught his famous moral and ethical teachings. It is interesting to speculate whether Confucius invented all his teachings or simply compiled them all from existing precepts already written by others or already practised widely by the Chinese. It is also interesting to speculate whether the huge sway of Confucius to this day among all Chinese is due to the power and logic of his precepts or due to cunning Emperors and officials who saw their value in maintaining an orderly society, and hence, promoted them as much for their own control as well as societal good.
3. Whatever, the genius of the Confucius system is that it solves the 2 big problems I identified above in para 1. For example, by providing a moral and ethical framework for all Chinese -- as individuals, as family members with different relations to one another, relations between fellow Chinese of equal rank or standing, or between the Emperor and his people, Confucius put a complete, central vision of what a Chinese should be or aspire to, whether he is an Emperor, official, businessman, commoner, father/son/brother, etc. A kind of Perfect Man, in each and every role he may be. This is the Central Vision so lacking in the Rule of Law. A Chinese need only live life according to Confucius' precepts and automatically, will be perfect and thus never run foul of the law. In other words, laws are not even needed. Society would automatically be orderly, harmonious and fair [all these are related since you cannot have order without fairness or harmony without order].
4. Confucian thinking has been so deeply embedded into every Chinese and Chinese culture that China's 1.3b people today do less crime than the 300m people in the US and this is not due to harsh punishment or repressive communist control. It is thanks to Confucius. Proof of this are the big overseas Chinese communities living in the West and other countries. They do far less crime than other comparable foreign immigrant communities.
5. If you accept my logic, then it follows that China, with a huge 1.3b pop, will do well to keep or reinforce the force of Confucianism rather than rely on the Rule of Law, which is overhyped and over-regarded. All other countries in the world except China, Taiwan, Hongkong, Singapore, Japan, Korea and some of the IndoChina countries, do not have Confucius and therefore need the inferior Rule of Law, which is all they have for society organisation. The Chinese have Confucius and so should strengthen Confucianism and find ways to integrate Confucianism into the Rule of Law, ideally, even to place it at the apex of the Rule of Law. In other words, Rule of Law should be invoked only after Confucianism has failed.
6. In America, the Rule of Law has failed and failed disastrously. There, the Rule of Law has not prevented the US from having the highest crime rates in the world, in history. The jails are numerous and full. The average American will likely commit crime if he has a good chance of escaping the law. Since law [as in para 1] is piecemeal and reactive, many crimes are not even recognised in time or outlawed and thus, disasters like the current financial crisis happen.
7. Although China has had written laws for millennia, the term Rule of Law is Western and its concepts are Western. This by no means, means it is superior, the best or even worthy of being adopted by China or the world. They are simply making do with what they have, because they do not have our superior Confucius system. For example, they also have the concept of Human Rights, not because they thought of it first, or because they are smarter or more humane and civilised, but because human rights abuses were/are so rampant in the West that in horrified reaction, they had to develop and define the concept of Human Rights. In the East, we are more civilised and always have been, so don't abuse human rights and consequently, didn't invent the concept of Human Rights. Just like the Chinese didn't invent Fast Food because all our roadside-type foods are already fast, usually cooked in less time than a MacDonalds hamburger. So it was left to the West to invent Fast Food. The moral of the story is, don't copy everything from the West esp America. Because they are heading for collapse. Just copy the obvious superiorities, such as computers, internet, free markets , some capitalism [but tempered with socialism or communism], reasonably honest media, reasonable personal freedoms to pursue happiness as long as the pursuit of such does not infringe on others [I almost wrote "rights of others" but Rights is another Western, Rule of Law concept that China should debate deeply before accepting it, if ever].
8. America has not always been in systemic collapse. Like their more backward cousins in Europe, they had had the Christian work [and other] ethics, just like the rest of the world has 'conscience' and this worked fairly well. Then, they started innovating and developing farther and faster, developing the most complex society ever, changing faster and faster, until their laws and institutions like their govt fell far behind such rapidly and dangerously innovating big businesses like the banks, social changes like relations between people and families like the gays, medical ethics in advances like organ transplants and stem cell tech, etc, to what you see today. In short, the Rule of Law has failed because NO GROUP OF MEN, HOWEVER BIG, HOWEVER INTELLIGENT AND WELL-MEANING, CAN ANTICIPATE OR RESPOND FAST OR WELL ENOUGH TO RAPIDLY CHANGING SOCIETY TO GOVERN IT ADEQUATELY. When politicians cannot even do SMS, MMS or set up a wireless lan, or understand carbon trading or caps, etc, everybody is in trouble.
9. Along the way, America developed the most 'advanced' Rule of Law ever. So today it has the most lawyers. Every transaction is done to a mass of legal contracts, nothing left to trust or the olden days handshake and honouring one's word. This emphasis on the Rule of Law, or rather, the letter of the contract, means that once you figured out a loophole in the contract, it becomes fair game to take every advantage of it, fair or not. It is also enforceable in court. All this eroded trust, honouring one's word, and fair play. It became a game where winning is all that mattered, no matter how unfairly. In the movie Syriana, one man expostulated to the other "But that's why we have laws -- we have laws so that we can work around 'em!" And since the politicians are corrupt, cater to their self interests and those who funded them or lobbied them, these corruptions compound their inability to keep pace with or even understand the rapid changes in society, leading to tragic consequences for the Rule of Law. Thus, not only is the Rule of Law a failure, govt is also a failure, esp the model of US govt being pushed as an exemplar for the world. Those in China who argue for democracy towards the US model should have their heads examined. China must find its own way, its own form of democracy, maybe the Govt By Referendum form of democracy I have advocated in my blog and to Hongkong's Donald TSANG, which, incidentally, is not incompatible with China's current form of govt, requiring only minor, technical changes.
10. Now comes the hard part, of which I have no confidence I will make sense. If Rule of Law is inadequate, how to improve it? I suggest that firstly, the Rule of Law be de-emphasised. This means that someone suing on the basis of the letter of the contract may not be awarded the lawsuit if the judge and a competent jury think otherwise. In other words, the INTERPRETATION of the judge and jury would be more important. This is only common sense as a group of [hopefully] unbiased and intelligent judge and jury, after hearing all arguments, would make a far fairer judgment than merely ruling on the words and sentences drafted into the contract. Extending this example to criminal cases in which a law is interpretated, the letter of the law should not decide the case. Rather, the INTENTION of the law should be guessed at. This can be difficult. For example, it is not enough to divine the Intention of the law drafter but to go beyond to ask what SOCIETY GOOD did he have in mind when drafting the law? This is quite Confucian because Confucius taught not only about how a subject should behave towards an Emperor and the State but how the Emperor should behave towards his subjects. In other words, the Emperor is also bound by Confucian precepts to be a good Emperor.
11. This would be inefficient because most trials would then probably debate the Society Good of a law before applying it and this actually would be modifying the law through interpretation. In dictatorships and rigid govts, this would be a no-no but if China were to adopt this, it would lead to probably the fairest legal system in the world and in history. I have written about Why Govts Should Almost Never Be Efficient in my blog, which explains why inefficient trials are good. Trials also serve an educational, news, even entertainment, thereby deterrent purpose in modern societies with active media and internet. This means that feedback from the public during a trial should be allowed, not blocked. There is a danger of Trial By Media but the positives include the fact that public attention forces every participant in the trial, from judge to lawyers to jury, to do a better job. Without public attention, trial judges, lawyers and juries are often derelict in their effort and duty. Public attention means that even the President of China may be watching and this is salutary. All trials should be televised by official media or videoed by bloggers or the family members who may want to point out mistrials. This is not revolutionary. All courts keep records of the trial, usually in written transcripts and sound recordings, so this is merely updating it to 21st Century media.
12. To make trials faster and more efficient, and above all, FAIRER, all accused should be allowed to ask for a lie detector test. Modern lie detectors include polygraph machines and even truth serums. While their accuracy is not 100% a combination of these, plus repeated experiments, can be taken into account by the judge, jury, lawyers and the watching public. The accuracy of each device, plus general warnings about relying solely on such devices to determine guilt, should be repeated on each day of each trial.
13. There is one aspect of the Rule of Law which is sometimes cited as its justification, and that is to foster Certainty in business transactions, from foreign investments to deals between companies or individuals and companies. But certainty does not rely solely on the Rule of Law. Certainty is a function of Fairness. And you can achieve Fairness through a Confucian-based Rule of Law. If a foreign business or investor sues in a Chinese court, as long as justice is done and fairness is openly seen as the goal of the court and the entire Chinese judicial system, confidence in the courts and the law will result. There is no need to stick to the letter of the contract. In any case, legal contracts are now worded in such dense legalese that no ordinary person understands it. And there is the question of which language will be the legally binding language of the contract, which adds to the uncertainty of sticking strictly to the letter of the law as against intention and fairness. This is another unfortunate result of over-reliance on the letter of the law. In some cases, a company may have an unfair advantage or clause/s simply because it has a cleverer lawyer drafting the contract than the counterparty. Or a bank cleverly disguises its high-risk bonds as low-risk through dense legalese no buyer can understand, and drafts legal clauses to escape penalty. In such cases, in China's court, there will be redress and justice, but not in a Western court. Allowing any media, esp the foreign media, to televise and video the court proceedings will also greatly increase confidence in China's courts.
14. You in China may not realise the extreme versatility of the English language compared with Chinese. English is a language made for liars and spin while Chinese is far more straightforward and honest. Thus, contracts and laws written in English are capable of very different interpretations and great exactitude must be expended to make it as exact as possible for legal purposes. Even translated into Chinese, this slippery language of English may still be very difficult to pin down so it is far better not to rely on the exact letter of the words in the contract and far better to interpret the Intentions and thus strive to be fair and deliver true justice. This language problem is yet another argument for my Confucian-based Rule of Law. Furthermore, not all foreign investors in China are American or British. There are also Japanese, Germans, French, Arabs and many other languages from the rest of the world. It is absurd for everybody to use English when both counterparties are not English-speaking. So, a court system that frees itself from the constraints of language sentence and grammar and focusses on truth, honest intentions and fairness will be far superior.
15. There is a notion that courts should merely apply the law, not MAKE law. This is cited as the Separation of Powers Doctrine. Let me point out that courts and judges debate law and crime, guilt and innocence, on a daily basis and so are infused with the richest body of experience and expertise on crime and punishment unlike politicians, no matter what their exalted titles. Politicians are further compromised because they have to politick, compromise, horse-trade, listen and even obey special interests and lobbies, and worse, are usually rich elites who have no experience or understanding of how the rest of their people and societies live their lives. Thus, their understanding of their people and societies are far inferior to the courts and judges who daily deal with these. A proposed law may be debated only days or at most, a week in Congress or Parliament, then passed and forgotten by the politicians while the courts and judges debate and study its every word and comma in great detail daily. So who has the richer experience and even expertise -- since most politicians are not even lawyers? Furthermore, a law, once passed, is forgotten by the legislators but continues to be enforced by the police, prosecutors and courts even though this law may be totally outdated and irrelevant. Congress and Parliament do not have my suggestion of setting expiry dates on all laws to ensure they stay relevant, current and above all, FAIR. If courts and judges were to Interpret law, thereby modifying and even making it, every law that seeks to be applied would be scrutinised and have to be justified, thereby ensuring its continuing relevance. Congress and Parliament cannot do this. Only the courts can perform this important function.
16. All this probably means that in considering and drafting every law in Congress and Parliament, the INTENTION of the law must be considered, debated and expressly defined and written as the first part of every law. Then the rest of the law may be written as now. But in the courts, the judges and lawyers would carefully and primarily first consider and place uppermost in importance, this said Intention of the law, then decide guilt and punishment to serve such Intention, rather than as now, according to the letter of the law. Such Intentions can refer to say, keeping order in society, adjudicate between competing interests, set conditions for businesses, define rights of children, minorities, handicappeds, groups such as gays vs non-gays, the powers of provincial, state and even the national govt, etc. All this will reduce the supremacy of Congress, Parliament and politicians and elevate the courts into more than just the current tool to enforce the will of the politicians into becoming a true institution of justice, in the natural justice sense of the word. This is OK because politicians are the problem, not the solution. And the world will be a better place.
17. My ideas will also make Congress and Parliament better institutions and literally force politicians to become better, too. This is because they will not simply make law in their usual politicking, self-interested, compromising, horse-trading, special interests and lobbies dominated fashion, but will have to focus on what is best for society and country -- or state, in the case of state govts. This will help greatly to keep them honest. Further helping to keep them honest will be the courts, where with this new system, the prosecutors and especially the defence lawyers, and the judge and juries, will keep asking and debating the INTENTION/S of the law. No longer is it enough to do the current lazy, if efficient thing, which is to merely apply the letter of the law. There will be more and even agonising debate on broad ideals of what is best for society. At first, every law will be questioned down to its fundamental basics, of why such a law is good for society, why and how it should be applied to achieve social good. Thus, firstly, the politicians will be forced in Congress and Parliament to be honest, then secondly, the courts will help keep them honest by constantly querying their Intentions. Prosecutors and defence lawyers would also keep debating the common good and society good. Ideals would come into both Congress and Parliament and also into every court. Lawyers and especially judges would not only have to be trained in law but also know some broad ideals of the social arts and sciences. But with time, practice and precedents, all cases would soon be dispatched with more efficiency because broad parameters would already be established.
18. I have critiqued the PIECEMEAL, REACTIVE, BELATED, HAPHAZARD AND ONCE-OFF way of current lawmaking. These deficiencies make Law one of the least intelligent inventions of mankind, not surprising since it was invented by rulers-bullies/strongmen and not wise men or philosophers. A further defect is that laws are once-off but for all time, completely permanent until revoked. Obviously, since society is constantly changing, and nowadays changing very rapidly, a permanent law, especially if interpreted strictly to the Letter, is soon outdated and even counterproductive in addition to probably being ineffective as well. Thus, permanent laws are now a bad idea, if it was ever good. What is needed are laws that can evolve and change with society, society ideals and new understandings of itself, as well as new wisdoms. Since all these are works in progress, it follows that laws must also be works in progress because that is the only way laws can keep pace with the ever changing and rapidly changing society. And the only way it can stay fair and relevant and obeyed, because there are too many stupid laws that nobody obeys any more because they are obviously stupid. This acknowledgement that laws are a work in progress will lead to a better respect for laws in general and an appreciation that laws are an institution for improving society and not merely a hotchpotch of prohibitions -- and judges would not have to put on airs, ceremony, robes and wigs to enforce a false respect and respectability. I have also written about how the current laws lack a central vision that can posit the ideal/s that society needs and wants. With my Intentions doctrine, wherein every law is headed with a statement of Intentions, there arises a Central Vision of sorts. You cannot write a statement of Intention without having in mind What Society Should Be or what a perfect society should be. Thus, when all the Intentions in every law are put together, a partial Central Vision appears, necessarily incomplete because it is a work in progress and constantly, organically adapting to changing society mores, from porn to gays, in part defined by lawmakers but also modified and remade by the courts in interpreting it. This partial Central Vision thus comes into existence, whether through deliberate debate in the legislatures and courts, or as unspoken backdrop to the legal thinking behind the passing and interpretation of the laws. Because this Central Vision is thus more formalised instead of the current nebulous, even confused ambiguity, countries can make and interpret their laws more intelligently. For example, China would probably base its entire legal structure on Confucian ethics, which is already in every Chinese. Other countries in the West may base their central vision on democratic, liberal values and rights including human rights. Muslim countries may base their central vision on Islamic beliefs and practices. This is not revolutionary. It is in fact, the practice already as you would know if you commit an offence in an Islamic country. I have merely articulated, defined and extended it to its logical conclusions. This implies that there are no or few universal laws, and international laws must survey ALL legal jurisdictions to compile what are truly universal. This would be good because such a survey would lead to better understanding of what are truly universal values and laws and which are merely Western preoccupations, as is currently the case. With truly universal values and laws established, the world would then be ready for truly International Law. Many writers have written Utopias but these all have the drawbacks of being once-off. They describe a Utopia at one stage of time, which is quickly outdated by real life and real society. A true Utopia is a work in progress, constantly evolving and organically adapting to changing values and mores, especially in our modern, fast-changing times. Almost everything is a work in progress, from software whose version number goes from say, 1.0 to 1.1 or even 2.0 if the changes are big enough, to computers that are frequently upgraded to better specs, to new car models -- everything. Congress and Parliament, with their attention-deficit habits and once-off method of debating and passing laws, cannot create a Utopia alone, but together with my courts and my new doctrine of writing statements of Intentions -- as simply and as easily as that, have the best chance ever of evolving society towards a Utopia.
[B]19. To end, Confucius may have lived millennia ago but he is hugely important to China and the world today. America is proof that 'when you lose your morals, you lose your economy, then your military, then everything'. America is collapsing because of one word that Confucius well understood : Morals.
--
RH: ME ON VIDEO DESCRIBING lky lhl wks NUMEROUS ELECTION RIGGINGS:
http://i-came-i-saw-i-solved-it.blog...ng%20elections (http://i-came-i-saw-i-solved-it.blogspot.com/search/label/Video%20RH%20on%20LKY%20LHL%20WKS%20cheating%20ele ctions)
MY ACQUAINTANCE, MR DAVID DUCLOS, A FORMER POLICE INSPECTOR, AND HIS LAWYER FRIEND, EYEWITNESSED LEE KUAN YEW RIGGING THE 1997 CHENG SAN GRC ELECTION. READ MORE AT MY BLOG ENTITLED "I CAME, I SAW, I SOLVED IT" :
http://i-came-i-saw-i-solved-it.blogspot.com/
Click here to view the whole thread at www.sammyboy.com (http://sammyboy.com/showthread.php?195243-Interesting-Read-Confucius-and-The-Rule-of-Law&goto=newpost).