Law in Contemporary Society

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JingkangGaoFirstEssay 2 - 05 Apr 2018 - Main.JingkangGao
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Defining Chinese Communism

-- By JingkangGao - 01 Mar 2018

I. Introduction

As I read Thurman Arnold’s comparison of the attitude toward communism in the 1930s in America with the attitude toward heresy in the Middle Ages, I was reminded of a conversation I had with a labor lawyer on the Amtrak train from New York to Albany about a month before I began law school. A casual and friendly conversation about law school took a wild turn when I told him that I had lived in China as a child. He then asked me that, having lived in both America and China for numerous years, if I identify more as an American or more as a Chinese. As usual, I felt compelled to ask him to clarify his question as to which specific aspect of life he was referring to. “Do you consider yourself a communist,” he replied, “or a capitalist?”

Five minutes of cacophony followed his question as I repeatedly asked for his definition of “communism” and to justify labeling China a “communist” country. Eventually, he said that he defines a communist country in which the government controls markets, regulates prices, and plans production. “Well, then,” I said, “China isn’t a communist country.” I thought no further explanation would be necessary as it was abundantly clear that the Chinese government does not interfere with every aspect of the economy. “If you think China is a communist country under your definition,” I went on, “then isn’t America also a communist country? It regulates just about every aspect of commerce, it provides social welfare, and it gives subsidies and influences prices.” He leaned in, lowered his voice, and whispered in a strangely threatening way, “if you asked everyone on this train if China is a communist country, what do you think people would say?”

II. The Creed Today

Several thoughts and questions emerged with respect to The Folklore of Capitalism as I recalled that conversation from several months ago. First, the Creed of capitalism (or that of the hegemonic organizations of America in the 1930s) seems to remain today. I had no doubt that if I had actually asked every passenger if China is a communist country, without defining the term and which aspects of communism I refer to, that most people (perhaps good with reason) would have answered in the affirmative. They would also consider it a rather unfortunate fact for the Chinese people, and perhaps the world. Perhaps they are right, but their judgments were made without qualification and consideration of inconvenient facts, nuances, biases, and other perspectives. They seem to rely on the assumption that “capitalist” societies and “communist societies” are practically mutually exclusive, as the Creed has it, and that one is equivalent to heresy. They are not necessarily wrong, but I think that it is at least a subject worthy of intellectual exploration, whether we are talking about the economic or political system that China has, and that it would be naïve to rush to conclusions.

III. Words and Symbols

Arnold’s discussion about the power of words and symbols in forming the Creed and obtaining strength for organizations may be missing some elements. The fact that the Communist Party is so named, while helpful to the Party in its early days, confounds this discussion. What if the Party had renamed itself, in due time, the Federalist Party, or the Environmentalist Party, or the Democratic Party? Would scholars and the laymen feel differently? Arnold would likely suggest that regardless of what they name themselves, they would only redirect attacks to that new name, or a new target to represent communism would be found, but that is difficult to imagine today. So would Americans fear or resent the Chinese Environmentalists or the Chinese Democrats?

IV. Understanding History

Moreover, Arnold should have included some discussion about the role of language, and more importantly, history, in different cultures as part of the Creed. The Chinese don’t fear or resent the American “Democrats” or “Republicans” or “Majoritarians” or “Capitalists.” The word that effectively arouses emotions and gets used in slogans, for good reason, is “Imperialists.” The Communist Party came to power at least in part because the Nationalists were perceived to be ineffective against Japan and Western countries. The Nationalists were in power when China lost control of Manchuria and the eastern plains to the Japanese; they never denounced the West as they forced open Chinese markets for trade, treated the Chinese as second-class citizens in their own country, and showed no respect to Chinese culture. After decades of suffering and humiliation, the Chinese found strength against foreign invaders in the Communist Party. The same question needs to be explored with respect to the Russians and the Germans in the historical context. World War I and the events thereabout should not be ignored. I would think their choice of leadership has far more to do a different set of concerns than with their desired form of government or economy. It speaks to the insidious nature of the Creed as Arnold described it, that its supposed counterpart, from both sides, do not reciprocate on the same set of concerns.

V. Persuasion

This brings me to a point that Arnold made about the techniques that politicians use and it begs a question that we have discussed in class, what is lawyering? I felt fairly certain that the lawyer I was speaking with, based on the fact that he had attended a low-ranked law school and that he seemed oblivious to facts, made a desperate appeal to authority when he was confronted with having to a difficult argument, but he framed the question favorably and appealed to a group that he knew would respond favorably. Does it matter whether the framing of the question distorts the issue and whether the authority to which he appealed was appropriate? At the risk of being the “Thinking Man” caricature or the scholar that Arnold characterizes as missing the point, I hope to make and hear qualified, informed, detailed, and nuanced arguments.


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JingkangGaoFirstEssay 1 - 01 Mar 2018 - Main.JingkangGao
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META TOPICPARENT name="FirstEssay"

Defining Chinese Communism

-- By JingkangGao - 01 Mar 2018

I. Introduction

As I read Thurman Arnold’s comparison of the attitude toward communism in the 1930s in America with the attitude toward heresy in the Middle Ages, I was reminded of a conversation I had with a labor lawyer on the Amtrak train from New York to Albany about a month before I began law school. A casual and friendly conversation about law school took a wild turn when I told him that I had lived in China as a child. He then asked me that, having lived in both America and China for numerous years, if I identify more as an American or more as a Chinese. As usual, I felt compelled to ask him to clarify his question as to which specific aspect of life he was referring to. “Do you consider yourself a communist,” he replied, “or a capitalist?”

Five minutes of cacophony followed his question as I repeatedly asked for his definition of “communism” and to justify labeling China a “communist” country. Eventually, he said that he defines a communist country in which the government controls markets, regulates prices, and plans production. “Well, then,” I said, “China isn’t a communist country.” I thought no further explanation would be necessary as it was abundantly clear that the Chinese government does not interfere with every aspect of the economy. “If you think China is a communist country under your definition,” I went on, “then isn’t America also a communist country? It regulates just about every aspect of commerce, it provides social welfare, and it gives subsidies and influences prices.” He leaned in, lowered his voice, and whispered in a strangely threatening way, “if you asked everyone on this train if China is a communist country, what do you think people would say?”

II. The Creed Today

Several thoughts and questions emerged with respect to The Folklore of Capitalism as I recalled that conversation from several months ago. First, the Creed of capitalism (or that of the hegemonic organizations of America in the 1930s) seems to remain today. I had no doubt that if I had actually asked every passenger if China is a communist country, without defining the term and which aspects of communism I refer to, that most people (perhaps good with reason) would have answered in the affirmative. They would also consider it a rather unfortunate fact for the Chinese people, and perhaps the world. Perhaps they are right, but their judgments were made without qualification and consideration of inconvenient facts, nuances, biases, and other perspectives. They seem to rely on the assumption that “capitalist” societies and “communist societies” are practically mutually exclusive, as the Creed has it, and that one is equivalent to heresy. They are not necessarily wrong, but I think that it is at least a subject worthy of intellectual exploration, whether we are talking about the economic or political system that China has, and that it would be naïve to rush to conclusions.

III. Words and Symbols

Arnold’s discussion about the power of words and symbols in forming the Creed and obtaining strength for organizations may be missing some elements. The fact that the Communist Party is so named, while helpful to the Party in its early days, confounds this discussion. What if the Party had renamed itself, in due time, the Federalist Party, or the Environmentalist Party, or the Democratic Party? Would scholars and the laymen feel differently? Arnold would likely suggest that regardless of what they name themselves, they would only redirect attacks to that new name, or a new target to represent communism would be found, but that is difficult to imagine today. So would Americans fear or resent the Chinese Environmentalists or the Chinese Democrats?

IV. Understanding History

Moreover, Arnold should have included some discussion about the role of language, and more importantly, history, in different cultures as part of the Creed. The Chinese don’t fear or resent the American “Democrats” or “Republicans” or “Majoritarians” or “Capitalists.” The word that effectively arouses emotions and gets used in slogans, for good reason, is “Imperialists.” The Communist Party came to power at least in part because the Nationalists were perceived to be ineffective against Japan and Western countries. The Nationalists were in power when China lost control of Manchuria and the eastern plains to the Japanese; they never denounced the West as they forced open Chinese markets for trade, treated the Chinese as second-class citizens in their own country, and showed no respect to Chinese culture. After decades of suffering and humiliation, the Chinese found strength against foreign invaders in the Communist Party. The same question needs to be explored with respect to the Russians and the Germans in the historical context. World War I and the events thereabout should not be ignored. I would think their choice of leadership has far more to do a different set of concerns than with their desired form of government or economy. It speaks to the insidious nature of the Creed as Arnold described it, that its supposed counterpart, from both sides, do not reciprocate on the same set of concerns.

V. Persuasion

This brings me to a point that Arnold made about the techniques that politicians use and it begs a question that we have discussed in class, what is lawyering? I felt fairly certain that the lawyer I was speaking with, based on the fact that he had attended a low-ranked law school and that he seemed oblivious to facts, made a desperate appeal to authority when he was confronted with having to a difficult argument, but he framed the question favorably and appealed to a group that he knew would respond favorably. Does it matter whether the framing of the question distorts the issue and whether the authority to which he appealed was appropriate? At the risk of being the “Thinking Man” caricature or the scholar that Arnold characterizes as missing the point, I hope to make and hear qualified, informed, detailed, and nuanced arguments.


You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.


Revision 5r5 - 29 Apr 2018 - 06:20:27 - JingkangGao
Revision 4r4 - 29 Apr 2018 - 05:08:51 - JingkangGao
Revision 3r3 - 08 Apr 2018 - 22:11:51 - EbenMoglen
Revision 2r2 - 05 Apr 2018 - 15:49:45 - JingkangGao
Revision 1r1 - 01 Mar 2018 - 21:35:17 - JingkangGao
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