My recent post about teaching U.S. constitutional law in China attracted some skepticism (offline and online) from commenters who doubted that my Chinese students could speak freely on constitutional topics. Surely, the skeptics asserted, those students’ speech is chilled by the prospect that the Chinese Communist Party’s monitors would report any statements hostile to the CCP or favorable to “western” ideas. As support for this inference that my students will be cowed by the CCP, these skeptics cite various Party documents calling for the ideological policing of teaching at Chinese universities. I guess I never got the memo on ideological policing: No one has said anything to me about what I am not allowed to teach or say. Since half of my students are not Chinese citizens, I am pretty sure that they, at least, also do not care about CCP policies. Moreover, Chinese mainland universities typically rely on a “Party leading group” at the university itself to enforce Central Committee rules. We lack such a leading group at NYU-Shanghai: To whom, then, will the alleged student spies report the misdeeds of their classmates? The argument that PRC students’ speech will be chilled by Party spies also simply proves too much: It would suggest that PRC students cannot speak freely anywhere, even at American-soil universities, because the CCP can presumably send or recruit PRC students to act as spies abroad to monitor their Chinese classmates from Harvard to Berkeley.
But putting aside these reasons to be skeptical about students’ being chilled at NYU—Shanghai, there is one foolproof way to insure that classroom debate will be both robust and Party-compatible: Assign to the students the job of debating topics on which the CCP is itself divided. There are, of course, some issues on which the CCP’s official ideology does not brook dispute. The Party wants a strong state that can overcome any private opposition to Party policy. The CCP is also united around some general notion of Leninist “democratic centralism” under which everyone is supposed to get on board with any policy that the Party adopts after private internal debate.
There are lots of “western” constitutional institutions, from the Philadelphia Convention of 1787 to a SCOTUS conference, that are compatible with this general Leninist idea of a tightly knit leadership reaching consensus after a secret debate and then issuing marching orders to underlings. One of those ideas is separation of powers by guaranteeing that the monitors of the bureaucracy will enjoy some independence from political leadership. . My class, divided into teams of “western liberals” and “left Maoists,” is assigned the task of preparing arguments next week for and against the proposal that Chinese courts should enjoy some sort of Marbury and Article III-style independence from political leaders.
After the jump, I explain why the “western liberals” can plausibly argue that separation of powers would strengthen the Party leadership’s control over the Party cadres out in the provinces – an argument that will not land any student making it in hot water with Zhongnanhai.
The Party faces a problem of agency costs not dissimilar from the problem faced by the framers of the U.S. Constitution. In theory, We the People are sovereign in the USA. In theory, We the Party is sovereign in the PRC. In both cases, however, the agents of the principal (whether People or Party) can betray their master, because those agents, being numerous and possessing more information about their responsibilities than their supervisors, are difficult to monitor. Leaders in Zhongnanhai can hand down edicts, plans, and exhortations. But if the outputs are hard to measure (say, environmental quality, honesty in government, or citizen satisfaction), then how will the masters know whether the servants are really following orders?
One solution to this problem of monitoring is to multiply competing agents and encourage them to inform on each other. Madison’s idea that “ambition will counter ambition”