Today Teacher Zhang Daqing talked about the birth and development of bioethics, introducing many of the ethical dilemmas brought about by modern medicine.
What I paid particular attention to was the relationship between bioethics and legal system building. Teacher Zhang said that the development of bioethics in the West has, to a very large extent, been worked out through one lawsuit after another. In China, by contrast, this area is still quite lacking. Teacher Zhang encouraged hospitals and doctors to dare to “eat lawsuits”: when facing things that, although they violate existing rules, ought to be insisted upon on ethical grounds, then they should be done—even if one loses the case, it can still promote people’s understanding and reflection on the relevant laws and ethics.
Indeed, the Chinese seem never to have been able to distinguish law from morality. Law seems to be subordinate to morality; we regard legal norms as a kind of minimum morality. Violating the law is often understood as a moral deficiency, while doing something in accordance with righteousness seems to mean that one can be exempt from legal restraint. Thus Chinese people fear lawsuits, fear losing lawsuits, and losing a case seems to imply a defect in one’s character. On the other hand, morality can also stand above the law: if a matter is for the sake of promoting the public good, then legal procedures can be bypassed.
The idea of regarding law as minimum ethics is problematic, especially in the modern world, which is changing with each passing day, where new problems in bioethics, environmental ethics, internet ethics, and so on keep emerging. We discover that law is always lagging behind—legal system building was never in the first place something that could run ahead of the times, predetermining the proper rules for handling all kinds of new difficulties. But does the lagging nature of law mean that we can disregard law and act at will? When Chinese people look at law, they often go to extremes. One extreme is to cling to dogma and handle everything strictly by the book: no matter what new situation arises, I’ll just do things according to the old rules, and then I won’t get sued. The other extreme is to ignore the law altogether: anyway, law can’t keep up with the times, so I can do as I please.
On the one hand, respecting law and submitting to the legal system, and on the other hand daring to challenge the law—such an attitude seems, to us, unimaginable. But this is not a contradiction in the first place. The emergence and evolution of law are not something that can be set down by thinkers simply improvising in their heads; they are always gradually formed and improved amid disputes in practice. Without the resistance of lawbreakers, without going through the practice and debate of case after case, the legal system can hardly advance. Respecting the law does not mean never doing anything illegal; it means that when I have done something that challenges the legal bottom line, I am able to accept the law’s judgment responsibly. In China, however, whether people are conforming to the rules or ignoring the law, it is often out of an unwillingness to take responsibility.
As we equate obeying discipline and abiding by the law with the moral bottom line, we instead create a disconnect between law and ethics, because we are bound to discover that the development of the legal system is lagging. For this reason, rather than thinking about how to improve the law in practice, people no longer respect or trust the law, and are unwilling to participate in rational argument according to legal procedures; instead, they would rather wield coercive violence in the name of morality (whether it is paternal rule from above or internet mobs from below). Because there is a lack of experience in serious argument over actual cases, China’s legal system is also bound to become more and more lagging and impotent, and so people increasingly distrust the law, entering into a vicious cycle.
November 18, 2010
Translated from the Chinese original with AI assistance. The original text is authoritative.
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