Was Helping China Build Its Post-1978 Legal System A Mistake?

By Jerome A. Cohen

I am glad to see publication of this semi-memoir in the Virginia Journal of International Law Online, originally done for a stimulating conference reviewing the last forty years of China’s legal development convened by the University of Michigan last October. It addresses the present claim that those of us who responded to the PRC’s requests for help in reconstructing its legal system after the Cultural Revolution not only wasted our time but also helped build up a fearsome world power. I was also stung by the different claim that, in aiding China, I had become another instrument in the history of America’s legal imperialism. What puzzled me especially was that the able author of the latter claim, who previously visited my NYU office, never interviewed me or colleagues in our China effort. For some current histories the documents of the dead are insufficient. Please find the article here.

Foreign NGOs - Wang Daohan, Ford Foundation and the Chinese government’s attitude at the start of Opening and Reform

This year’s events in China – including the passage of a law that emphasizes strict control of foreign NGOs and the show trials two weeks ago of Chinese rights activists whom Beijing accused of working with “hostile foreign forces” – have shown that Chinese leadership is extremely wary of a “color revolution” inspired by the outside world.

In light of current concerns of the international community, it might be useful to recall the very different situation in 1979. China was just opening, and I was in Beijing at the invitation of the city government to help train its economic officials in international business law. I got to know Wang Daohan, then head of the new national Foreign Investment Commission, through his very able assistant, a young economics graduate named Tang Yunbin, whose English skills had proved helpful in efforts to develop an updated Chinese legal vocabulary for terms like “foreign tax credit”.  Wang had just been moved into his new job from an earlier post as Minister of Foreign Economic Relations. More than most PRC leaders, he saw the need for Chinese officials to learn about foreign economic transactions and institutions but felt frustrated by the limited opportunities for them to do so.

I knew that Ford Foundation, which had sponsored Harvard Law School research on the legal systems of China, Japan and Vietnam, was eager to enter China and be helpful but seemed frustrated in efforts to do so. It plainly made sense to try to bridge the gap, so I invited Carl Green, an American lawyer who was then Ford’s representative in Tokyo, to come to Beijing to have lunch with Wang.

Since the PRC for three decades had been denouncing foreign foundations like Ford as running dogs of imperialism, Green was understandably apprehensive that China might spurn Ford’s interest. Lunch was pleasant through the main course, but neither Wang nor Green appeared willing to initiate discussion of the subject that brought us together.

As dessert arrived, feeling a bit anxious about the way things were going, I said to Wang what he obviously already knew - that Ford might be willing to help with the training of Chinese officials in international economic matters. He feigned welcoming surprise and asked Green to what extent Ford might help. Carl, visibly tense, mustered all his gumption and said that Ford might be willing to contribute as much as one million USD to such training.  Wang almost snorted in scornful disbelief. “What”, he said, “do you know how poor China is and how huge its needs are? One million dollars is nothing.”  

At that point Green, instead of being offended, began to relax, for he saw that China was prepared to behave like the governments of many other developing countries and that cooperation would be possible, at a heftier price, to be sure!

What a difference 37 years have made!

When are Donations to Universities Unacceptable?

by Jerome Cohen

(Matthews Hall, Harvard Yard, Photopin)

Harvard has announced that it’s going to set up a new research institute in Shanghai. The institute is being funded by a donation from Wang Jianlin, the chairman of the Wanda Group, which according to this New York Times report, has financial ties with members of the most powerful families in China. This has raised the issues of whether Harvard should accept the donation and more broadly what sources of funding should be acceptable to universities and under what conditions.

These problems frequently arise at the elite schools, Harvard prominent among them. Some donations seem simply wrong and others are plainly angelic "no brainers". The rightness of many others turns on various specifics - eg, the donors, the purposes, the conditions if any, etc.

Having taken part in some fundraising, I know these are often not simple matters, and respectable arguments can frequently be made on both sides. At Harvard I raised money from many sources. Eg, the US Government Arms Control & Disarmament Agency. Should that grant to study Chinese policy and international law have been rejected because of the abominable misconduct of the US Government in any number of places including Vietnam, Chile, Iran etc? Should a grant from Mac Bundy at the Ford Foundation to study Vietnam's legal history have been rejected because Bundy had moved there following his White House years helping to mastermind the destruction of Vietnam? (And Henry Ford, the progenitor, was, of course, an anti-Semite.) Should a professorship of Japanese law to be established by the Mitsubishi Group at Harvard Law School have been rejected because periodically some member of the group is charged in some country with violation of antitrust, trade or even criminal laws?

In those three cases I thought the circumstances warranted acceptance, although I told Mitsubishi that we could not use their name for the professorship and they agreed. Later, after I left Harvard, somehow the name came into use regarding the chair.

A more interesting problem arose when I was invited to go to Japan by the Sasakawa Peace Foundation to give a public lecture in January 1975, probably because I had been openly critical of the Tanaka Government on the grounds of corruption and human rights in its actions at home and in relation to South Korea. I got to know my host during the few days he spent with my wife and me traveling around Japan, and it became clear that he would be willing to make a huge donation to Harvard Law School to support our East Asian research program. Mr. Sasakawa, who made a fortune as the king of motorboat racing, was in the midst of a sustained effort to do good deeds that might overcome his earlier reputation as a war criminal. When I returned to Harvard, I consulted my wise senior colleagues Fairbank and Reischauer as well as the young law professors from Japan who were either visiting scholars or grad students at Harvard Law School. Neither Fairbank nor Reischauer opposed the idea and they seemed to implicitly endorse it. Fairbank, a great supporter of research in East Asian law, said with a smile: "Harvard sanitizes money by accepting it". The Japanese law scholars, on the other hand, were adamantly opposed because of Sasakawa's record as a war criminal. One whom I respected greatly said: "No one from Japan will want to study here if you take his money." With considerable reluctance, I turned the opportunity away. Not long after, Sasakawa gave about US$10 million, real money in those halcyon days, to the UN Population Fund at the request of Robin Duke, one of the world's most charming women, who, with her husband, Angier Biddle Duke, had been courting Sasakawa at the same time we were there and who gave me the idea of trying to hit our host for a major gift. Was I right?

A few years after the Sasakawa incident, many in Cambridge were outraged when the Fletcher School accepted a chair from the Marcos Government in the Philippines. I took part in the protest and think I wrote a letter to the Boston Globe asking whether it would be called "The Ferdinand Marcos Chair in Human Rights". In any event, Fletcher soon decided to return the gift.