U.S. Relations With the People's Republic of China (2008)

Remarks on the Occasion of the Opening of the Peking University School of Transnational Law

Justice Anthony Kennedy,
U.S. Supreme Court

October 22, 2008
Shenzhen, People's Republic of China

As Prepared for Delivery

Chief Justice Li, Dean Wu, Counsel General Goldberg, Dean Lehman, Mr. Dickinson and my fellow citizens of a world which must seek to become ever more peaceful and just through the Rule of Law. Thank you for giving me the privilege of attending this historic dedication and for asking me to speak to you this morning.

Universities, like most other human institutions and enterprises, must be always in search of new systems, new models, new ways to perform their essential mission. That is why it is of paramount importance for this school to prosper and succeed. And when it does, your model can inspire dynamic changes in legal education throughout your great nation. Your success is important for China. And your school is important for other nations who want to rely upon law and the legal profession to find common goals to achieve common progress.

In the United States our law school professors have immense talent, and law schools are influential in government and in society at large. As some of you know, our law review system relies on students who are just beginning to study and to explore the law to engage in formal criticism of decisions made by judges. Judges, of course, are senior to students in years and in experience. But the judges respect and welcome the criticism from those who are just beginning to study the law.

Judges do not view student and faculty criticism simply as a necessary way to train the next generation of legal thinkers. Judges and indeed the whole profession embrace the criticism as a crucial check on the power of the bench and bar. We rely on criticism from law students to see if we can find new insights to express new principles that strengthen the Rule of Law. So our law professors and our law students can be proud of their work, even when that work criticizes authority.

Sometimes we hear law professors say: "we teach our students how to think." In one sense this should not be at all surprising. Any teacher in any subject at any level wants to teach students how to think. So in some respects the law professor's boast is nothing more than a commonplace observation. Successful teachers always seek to

inspire students to be precise and clear. Too often, however, the suggestion or connotation is that professors at law schools have some sort of a monopoly on clear thinking. That, of course, is pretentious, narrow, and simply wrong. And to prove that law has no monopoly on thinking, one need only notice those law schools which now hire law professors with a rich, diverse interdisciplinary background. Cur law professors come to law school with degrees not only in law but other fields as well.

The thirst for interdisciplinary diversity has had an effect on the ranks of law students as well. It used to be that desks in law school classrooms were manned by pupils with a more or less homogeneous background. Most had undergraduate majors in pre-law or political science and had come straight to law school after completing their undergraduate studies. Today we see a different dynamic. Alongside the political science undergrad we find economics, chemistry and literature majors, or even find students have made a professional mark on the world in one field or who have an advanced degree and who are now eager to bring that experience to our venerable profession.

The law professor's self--important claim that he or she teaches students how to think is in need of some revision, some refinement. We can discard that unwarranted pretension, yet we can continue to capture the vital and unique societal function law schools perform. We can say that law schools train students how to think about simple things in a formal way. This is the path to a world of thought that discovers moral principles and social responsibilities in everyday activities.

If the law student is to succeed in this worthwhile project, he or she must be patient. This may account in part for the slight, initial disappointment some beginning law students feel. They come to law school filled with idealism and great expectations. They are eager to learn the truths that ought to inform any enlightened system of justice. Then the student finds that he or she is required to spend hours interpreting a few little words, or even the punctuation, in a contract or a statute. They might become impatient. They ask themselves "why am I spending my time on detail when I am so anxious to find solutions for the crises of our times?" To this question there are a number of answers. Let me give a few. To begin with it is necessary to teach certain elementary rules and principles

for interpreting documents, enforcing contracts, and imposing liability just so that we can have simple rules to begin managing an evermore complex society. Every science in every discipline must begin by teaching students its own vocabulary, its own basic assumptions, its own rudimentary principles. And then, too, in law school we hope to teach the tools of debate and rhetoric. We want to teach a means for reconciling disputes and reaching common agreement through civil, productive, rational, respectful, honest discussion and debate. A student in a law school should learn to argue a difficult proposition in a graceful, diplomatic, courteous, logical way that shows at all times the respect that he or she has for all others engaged in the process.

Law professors, of course, have their own set of serious obligations1 Among these are a willingness to undertake a constant reexamination of the substance and the techniques they are to teach so they are not themselves trapped in forms and methods that are too rigid and ineffective.

In our law school tradition one teaching style is the so called Socratic Method. The usual form of the technique encourages the professor to challenge his or her students and the students to challenge the professors to promote a rational dialogue and to illuminate the benefits and drawbacks of particular points of view. My assessment is that most teachers in American law schools no longer use the method. There are some reasons for this. One is simply the desire of the professor to move more quickly in order to cover a subject which becomes more and more complex as the law becomes more refined. The other is that students tend to resist it. Some students think a Socratic inquiry is a game in which professors know the rules better than they do so the student is sure to lose. Some students tend to opt out. It was interesting for me to teach a course in Europe that included foreign students from Asia, Western European nations, Russia, and Eastern Central Europe. I found that the non-American students were more willing to engage in the Socratic Method than the American students were. That set a good competitive example for the American students.

Teachers must be aware, though, that there are various forms of the Socratic Method. There are at least three. The first is that the professor knows, or thinks he or she knows, what the answer is. The professor's questions are designed to bring the student around to the professor's point of view. This is an abuse of the Socratic Method although I suppose that it can be forgiven in part because Socrates himself sometimes used it. The second variation is this: whatever the student says, the professor will take the opposite position. If this method is not respectful and professional, it can tend to make the professor captious and tiresome and discourage the expression of Views. But when properly used this method teaches the skills of rhetoric. The third variation is this: the professor and students ask each other a series of questions designed to form a partnership in pursuit of the right answer. This is the classic, the beautiful, the elegant form of the Socratic Method.

For many years my message to law school teachers has been that each of these variations in the Socratic Method may have a certain utility. And it is probably not necessary for the student to know which variation the professor is using. It is of immense importance, though, for the professor to know the objective of Socratic dialogue. Professors must never cease to ask, and to formulate with considerable precision, what their goal is.

The law--perhaps to a greater extent than other disciplines--does concentrate on the rules and precedents announced in the past.  My own son attended law school.  It was thrilling to find that he had to learn everything I learned and about all that has happened since my time as a student.  The system of teaching about the past means that we have a formal system for transmitting our whole legal culture from one generation to the next. This is of immense importance. You cannot transmit what you do not understand. You cannot preserve what you do not revere. You cannot defend what you do not know.

In the Anglo-American system, of course, precedent is a fundamental precept. The Doctrine of Stare Decisis is the rule binding us to earlier precedents unless a powerful reason is shown to reject them. In my first year as a judge, it seemed this doctrine had special appeal because it was historical, ordered, and disciplined.  Stare Decisis appeared at first to be something of an antiquarian function, and this was easy enough to accept. Though it does not sound exciting to be prepared to devote your life to looking at the dusty books of an ancient time, or listening to the creaky joints in the old bones of the law, there is an undoubted fascination with this method.

After I spent a few years on the bench it became apparent this was a far too narrow, a most inaccurate view, of the meaning of Stare Decisis. Stare Decisis has a forward thrust. It means that when judges have a new case to decide they must be prepared to be bound by the consequences and the principles of their own decision. So Stare Decisis has a powerful, forward locking momentum. And it makes our task as lawyers, judges, and law professors all the more fascinating.

Robert Louis Stevenson was one of the West's great poets, though not a lawyer. He once said this; "Life is learned looking backwards. Life is lived going forwards." Since the law never hesitates to borrow wisdom from other disciplines, Stevenson's quote is an apt summation of the doctrine of Stare Decisis. It teaches the importance of precedent but cautions that it will not always suffice for a new era.

The civilization of China, and its philosophy, its learning, its arts, its sciences, and the lessons it teaches us about human dignity are admired by Americans. Indeed, Americans are sometimes surprised to hear that our friends the Chinese do not understand the admiration that we have for your great civilization.  In the western tradition, Plato was Socrates's student and interpreter. Your philosopher, Mencius, lived about the same time. Although you could explain it better than I, my understanding is that, like Plato, Mencius was a principal interpreter and disciple of Confucius.

Mencius put to his time--and puts to our time--the problem of the traveler and the child at the well.  The traveler is walking in a distant region, far from his own home.  He sees a child about to fall from the little wall surrounding a well.  Must the traveler go to the rescue?

The problem Mencius requires us to answer raises a number of fundamental questions, but we can simply ask whether the traveler should rush to rescue the child.  This is one question to which the law provides one answer, and our moral sense another. My understanding of the general rule in the Anglo-American tradition is that there is no legal duty to rescue the child. Other countries take a different position.

Yet quite apart from the law, is there not an overriding moral command to go to the rescue?  If the law does not impose a duty, that does not mean that morality should not control.

My assumption is both in the time when Mencius lived and still today all decent people would say there is an answer. Whether or not the law requires the rescue, morality does. If the traveler who rushes to the rescue seeks to gain friendship with the child's parents or to gain the approval of neighbors and friends to enhance his own reputation, his motives come down to self interest.  Perhaps that is not all bad, for many societies reward actions they approve.  But there is another explanation for the moral duty to rescue.  Mencius tells us the duty to rescue exists in part because the failure to do so would cause shame.  And a sense of shame is the beginning of righteousness.  A sense of decorum is the beginning of propriety; a sense of righting a wrong is the beginning of justice; a sense of compassion is the beginning of humanity.

A law student's first reaction to the problem might be to say, that because it is a puzzle that has been around for so many years, why try to explain it now? Since we might not reach a definitive answer, the student would say, why should we not go on to something more useful and timely?

But this anxious statement is too hasty. It is as urgent to discuss the problem now as it was when Mencius lived and taught. The fact that for centuries we have not agreed upon, or even discovered, certain universal truths is not cause for detachment and indifference. By throwing ourselves into these philosophical inquiries and debate, we can establish that link with the past that is essential to our identity with members of human kind. It shows that we care about the definitions of morality and decency, definitions that should shape our future.

If we find in the reaches of higher philosophy, in the depths of the law and its teaching, a discipline of thought and an elegance of meaning then we can find ways to strengthen the human bond between us. For one scholar the law can begin as a deeply personal undertaking. Some scholars reflect in lonely quiet to find universal ideas that relate to our existence and to discover a higher purpose within the classic traditions of philosophy, the arts, and the sciences. Judges work this way sometimes at the outset of deciding a case. Holmes called it "the secret joy of isolated thought."

Put that way our functions may at first sound elitist, insular, perhaps even self absorbed. But if we realize that at a fundamental level quiet and diligent study is simply a preparation for a larger conversation with our community and with the civilization around us then the study has lasting meaning. The law becomes an expression of our shared purpose as a people, as a nation, as an era, as a generation.

On entering this exciting school each new generation, each new class, each new student will have an opportunity and, at the same tine, a solemn responsibility. In this place all who study and all who teach must seek always to define and defend the Rule of Law and to insist that it is the birthright of all persons. For centuries and until the present day there have been rulers who sought to twist the idea of law and to appropriate it for themselves and their own false purposes. In my own lifetime Hitler and Stalin thought of law simply in terms of raw power. They were willing to suppress, even to murder, those who asked for nothing more than simple justice. Their lies were transparently false, yet the regimes founded on those lies fooled millions and were hard to defeat. Their contempt for the Rule of Law was obvious.

Then too there are subtle, less obvious attacks on the Rule of Law. We must be on guard against these distortions so we do not lose confidence in law as the means to enable all of us to seek and to find justice in our own time. Your duty, your careers must be based on the idea that the Rule of Law is more than order. It is justice. It is dignity. It is freedom and compassion for all of human kind.

These are a few thoughts from one who began law school half a century ago. The study of law was a fascinating challenge then, and it remains so today. All of us who are here to participate in this dedication are willing to ensure this is a place that makes a lasting contribution to preserving the Rule of Law. And then this law school will take its place among the fine law schools of the world.