Checks and Balances in a Law

A harmonious society is a utopian society, which is more wishful than realistic. In any societies, human beings will encounter many unexpected social challenges.

Once in a common conversation, an ordinary American woman remarked that the Chinese children have a lot of discipline. How true it is, the discipline and law embody the father’s, teachers’, and government’s punishments for the Chinese starting their childhood in a long history; in contrast, the American regard law as a protection of their natural rights, such as, freedom.

America is a common law country, except Louisiana State which is a civil law state. The common law is a judge-made law and is from England; the civil law is the code-based or statutory law and is derived from Code Napoleon [Bonaparte] (1769 – 1821) of France. Jurist Billings Learned Hand (1872 – 1961) once wrote “The language of the law must not be foreign to the ears of those who are to obey it.” So, one does not have to be an articulate and literate person to exercise the law.

In the case of Gideon versus Wainwright (1963) for the Fair Trials, Clarence Earl Gideon (1910 – 1972) in Florida was a poor man with only eight years in school, but he won the right for himself and all of American. Gideon was under arrest in 1961 for a charge of having broken and entered a poolroom with intent to commit a crime. Without money and without a lawyer, he asked the court to appoint a lawyer for him; and his request was denied by the court. He then defended for himself, but the jury found him guilty and he was sentenced for five years in prison by the judge. In his handwritten petition (Note: a typed one was required usually), he wrote “I, Clarence Earl Gideon, claim that I was denied the rights of the Fourth, Fifth, and Fourteenth Amendments of the Bill of Rights.” The United States Supreme Court affirmed his rights and further noted that “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” Gideon got a retrial with a lawyer and was acquitted the charge on him.

In the case of Island Trees Schools versus Pico (1982) for Banning “Filthy” Schoolbooks, then seventeen years old student Steven Pico of New York, along with four other teenagers, 14 to 16 years old, sued the school board for pulling eleven titles from the school library shelves, and demanded the school board to return the banned books to the library in 1976, The school board regarded the removed books as “anti-American, anti-Christian, and anti-Semitic, and just plain filthy,” and said that “[i]t is our duty, our moral obligation, to protect the children in our schools from this moral danger as surly as from physical and medical dangers.” Immanuel Kant (1724 -1804) opposed such a similar guardianship, he said by placing one age guardianship as a constant for the succeeding ages, “it would be impossible for the later age to expand its knowledge (particularly where it is so very important), to rid itself of errors, and generally to increase its enlightenment. That would be a crime against human nature.” Based on the interpretation of law, not Kant’s saying, though, the Supreme Court granted the students’ petition in 1982, and affirmed further “In brief, we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’ Such purposes stand inescapably condemned by our precedents.”

The duties of the Supreme Court are to interpret and explain the laws. However, the jury is a core component in the West legal system; it is included in both the common law system and the statutory law system. Trial by Jury in a legal procedure was brought by the Normans in the middle of the twelfth century, and has been ingrained in the Western people. Thomas Jefferson (1743 – 1826) enumerated without Trial by Jury as a reason for American Revolution in the American Declaration of Independence. One power of jury is jury nullification. Jury has been regarded as the last resort and the last check and balance for protecting the rights of citizens, by checking on the judiciary for against a judge’s prejudices and an unjust law.

The law in China is set for protecting its government, not its citizens. There is a charge called “Subversion” for jailing those conscientious people. Its internal political struggling is so brutal that nobody has the due process in a legal protection. It is clear that in China there is no the writ of Habeas Corpus (a Latin phrase means “that you have the body”), which was enacted in Britain as early as in 1215; no jury in the legal procedure, which was brought by Normans in middle of 12th century; and no the rule of due process, which was enforced in a Code of Criminal Instruction by Napoleon of France in 1808. Without the jurors from the local common citizens and the jury nullification, the Chinese government can be easier than a piece of cake to convict any persons it charges, for it has a whole legal system to serve itself, including its courts, prosecutors, and policemen. However, the Chinese government feels itself so arrogant that it can abuse the extra powers out of its legal system; it detains its suspects for “investigation in designated time and designated place” (Shuanggui in Chinese). It is extremely difficult in China to vindicate defendants from the subversion and such accusations in the un-“Fair Trials”, and to restraint the eagerness of the Communist to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

Why has China not had Trial by Jury after nearly one thousand years since it appeared in the West? Is it possible because the Chinese government is so paranoid that it is afraid the jury will nullify its legitimacy in order to “rouze themselves [people], and endeavour to put the rule into such hands which may secure to them the ends for which government was at first erected” (John Locke, 1632 -1704)? Is it possible because the Chinese elites are so conceit that “They rejoice in their ignorance, as if what they did not know were not worth knowing” (Francesco Petrarch, 1304 – 1374)? Is it possible because the Chinese people are in the Allegory of the Cave so long time that they, “Through laziness and cowardice a large part of mankind, even after nature has freed them from alien guidance, gladly remain immature” (Immanuel Kant, 1724 -1804)?