A Breach of the Law, a Betrayal of Autonomy — No Way for a University to Act!

Xu Zhangrun vs. Tsinghua University
Voices of Protest & Resistance (XXIII)

 

Gao Quanxi 高全喜, the author of the following essay of protest concerning the persecution of Xu Zhangrun 許章潤 by Tsinghua University, is a chair professor in the Koguan School of Law, Shanghai Jiao Tong University 上海交通大學凱原法學院講席教授.

Gao is a specialist in constitutional law and history, legal principles, as well as the history of Sino-Western law. He has also written on late-Qing and early Republican era debates related to constitutionalism 憲政, a topic of renewed interest since Xi Jinping’s 2012 rise to power and the affirmation of the Communist Party’s monolithic dominance over China’s Constitution, the law more broadly and every aspect of the public sphere.

I am grateful to Reader #1 for spotting typographical errors and also for suggesting some elegant improvements to the draft translation.

— Geremie R. Barmé
Editor, China Heritage
18 May 2019

Further Reading:

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The rebuilt formal entrance to Shanghai Jiao Tong University emblazoned with calligraphy in the hand of Mao Zedong

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Latitude and openness are intertwined with acceptance and cooperation. Without professors who can pursue their academic explorations and give expression to their intellectual emancipation, without an ambience that embraces different points of view, without a discursive environment that is tolerant and harmonious, and if teachers are found to be at fault at every turn, if their ideas are repeatedly interdicted, then university life withers and the very culture that these institutions are supposed to support and nurture will be stifled.

自由開放是與寬容協和相互聯繫在一起的，沒有大學教師的學術探索和思想解放，沒有不同觀點的兼容並蓄，沒有寬容和諧的輿論環境，大學教師動輒得咎，思想觀點處處受到禁錮，這樣的大學也就是失去了生命。

— Gao Quanxi 高全喜

The Brutish Treatment of Mr Xu Zhangrun
Contravenes the Law & is
A Betrayal of University Autonomy

清華蠻橫處罰許先生

有違法治之道與大學自治精神

Gao Quanxi
高全喜

Translated by Geremie R. Barmé

 

There has been widespread discussion of the news that Mr Xu of Tsinghua University has been relieved of his duties, removed from the lecture theatre and forbidden from pursuing his research. People are riled up about it and there is widespread disbelief about what has happened. The action taken by Tsinghua has added an element of uncertainty to life on Chinese university campuses that, even before this, was increasingly unsettled. [As the Tang-dynasty poet Xu Hun 許渾 famously wrote, it is ] ‘As though the halls are being buffeted before a looming storm’. When I contemplate the repeated acts of repression witnessed on university campuses in recent years, I experience a deep sense of foreboding, one suggesting that we may well be facing the kind of [anti-intellectual] political movement that was experienced so often in the past. It is a shocking realisation for it presages the unfolding of a situation that none of us wish to see repeated. After all, anyone familiar with modern Chinese history knows about that raft of previous incidents that are simply too painful to recall. They are also profoundly aware of the critically important role played by the Intellectual Liberation Movement in our universities over the four decades of the Open Door and Reform era [1978-2018].

I have no doubt that it is completely inappropriate for Mr Xu to have been suspended from his job and banned from teaching. It’s a decision that runs counter to the progress made by China’s universities over the years. Moreover, it is completely out of keeping with the mainstream of an official national policy that advocates and supports the push for the ‘Rule of Law and Civilised Behaviour’ during the unfolding New Epoch of Socialism.

這幾天關於清華大學許先生被免職、停課、停止科研的事件傳的沸沸揚揚，一時間群情激蕩，天下嘩然，致使本來就不平靜的學園憑空增加了更大的不確定因素。山雨欲來風滿樓，面對著近期大學校園裡的一次次對教師的整肅，我深感一場似曾經歷過的運動就要到來，這是令人警醒的，也是不願看到的。凡是對中國現代史有所瞭解的人，都知道哪些讓我們不堪回首的往事，都曉得改革開放四十年來大學的思想解放對於中國社會發展的極端重要性。許先生的被免職下課，顯然是不妥的，有悖於上述中國進步的大學之道，也不符合當今官方主流所倡導的法治與文明的新時期社會主義精神。

But let’s first consider the matter from the angle of legal principles. Everyone is aware that as it presently stands the Chinese Constitution stipulates that all citizens have the right to express themselves freely. As a famous legal scholar with an international reputation, Mr Xu is entirely within his rights to give voice to his views. Indeed, no organisation or individual should be permitted to strip him of basic rights that he enjoys as a citizen; indeed, only the law courts may determine whether his publications have in some way contravened the Constitution.

According to the Teachers Law promulgated some time ago [in 1993], as an educator Mr Xu may be sanctioned if his behaviour or utterances are indeed found to be in breach of specific provisions in that law vis-à-vis his professional responsibilities. But, at the same, the Teachers Law also protects the rights of educators [like Xu Zhangrun] to teach, taken on new students and pursue their research work. It is illegal to strip them of these rights arbitrarily.

As for Tsinghua University, it is a legal entity with a duly formulated university charter of the kind that is generally thought of as being akin to a ‘mini constitution’. Such charters stipulate the autonomous operation of tertiary educational institutions and specify the various rights and duties of their teachers and students. Such ‘mini constitutions’ have been regularised as part of the overall national effort to establish an integrated modern university system that can foster the efforts of educational institutions to continue to grow autonomously.

首先，我們從法理上來看。大家都知道中國的現行憲法明確規定了每個公民都有言論表達的自由權利，許先生作為當今中國乃至世界的知名法學家，當然有他的言論表達權，他的文章是否觸犯了中國的憲法，自然有法院予以審決，否則沒有任何機構和個人有權力剝奪他的這些公民權利。此外，我國早就頒布了《中華人民共和國教師法》，許先生作為一名大學教師，他的言行如果違背了教師的職責，學校當然可以依據教師法予以追究處罰，當然，教師法也賦予了每位教師的相關權利，其教學、招生與科研的權利也不可恣意剝奪。還有，大學作為一個法人實體，當今中國的每個大學，清華大學也不例外，都頒布實施了各自的《大學章程》，這些章程被視為大學的「小憲法」，它們規定了中國大學的獨立自主的辦學制度和教師與學生的權利與義務等，其目的是建立完善的現代大學體制，以促進大學的自主發展。

As Mr Xu is a noted scholar, an educator and a Chinese citizen, his public utterances and actions, his writings and the thoughts that he expresses therein, his moral probity, and the validity of his research may all be liable to suitable forms of sanction, but only if it can be determined that he is in actual breach of particular stipulations and articles contained in the three bodies of law that I have outlined in the above — that is, the Chinese Constitution, the Teachers Law and the University Charter. Only then can the relevant bodies determine the extent of the presumed particular damage that he has occasioned. I would hasten to add, however, that according to what I have been able to ascertain to date the administration of Tsinghua University has failed to comply with the basic procedural principles or processes outlined in any of these laws. Instead, they have concocted a ‘special investigation’ into Mr Xu and, regardless of the fact that even this ‘procedure’ has yet to reach any definitive conclusion, they have proceeded unilaterally to impose a series of sanctions on him by suspending him of his professional university role, imposing an interdiction on his teaching, banning him from taking on new students and freezing his research work and writing. It goes without saying that such behaviour is in serious violation of all three legal parameters described in the above, as well as being in contravention of the ‘Spirit of Legality’ that is consistently advocated by our government. Moreover, these actions also infringe upon Mr Xu’s basic rights.

許先生作為一名學者、一位教師和一個公民，其言行舉止，其文論思想、其道德行誼、其教學科研，等等，它們究竟觸犯了哪些規定，造成了何種損害，依據上述《憲法》、《教師法》和《大學章程》三個層次的法律條文，均可以對其予以一定的懲處。但是，就目前我們所瞭解的情況來看，清華大學校方並沒有按照上述法規所要求的程序原則和處理步驟，而是通過專門調查等方式並在還沒有最終結論的情況下，對許先生採取了免職、停止上課、停止招生和停止科研活動的處罰，這種做法當然嚴重違背了上述三個法律的基本規定和我國政府歷來倡導的法治精神，也侵犯了許先生的基本權利。

In saying all of this, we are not suggesting that Mr Xu is without fault; after all, to err is but human. Nonetheless, punishments imposed on a citizen, let alone on an educator at a prestigious educational institution, must conform with the appropriate legal procedures and existing regulatory norms, and they must be pursued in a completely transparent manner. The treatment of Mr Xu begs the question: What article of the Chinese Constitution has he contravened? Furthermore, which provisions of the Teachers Law has he violated through in his teaching, his training of graduate students or his research work? It is incumbent upon Tsinghua to provide details of his infractions. Thereupon, it must then follow the procedures that are duly outlined in the University Charter. In other words, it must hold open hearings both to collect evidence and to allow the person in question an opportunity to argue their case. It is by means of such a process that a full range of professorial and student opinion can be collected and gauged. Then, and only then, can some determination be reached and a punishment imposed.

我們這樣說，並不意味著許先生沒有瑕疵，是人都可能犯錯誤，但是，對一名大學教師的處罰，乃至對於任何一個國民的處罰，都必須按照法律的程序和規定予以公開透明地進行。就許先生此事來說，他公開發表的言論哪些觸犯了現行憲法的條文，他的教學、招生與科研活動，哪些觸犯了教師法的規定，校方應該具體翔實地列舉出來，並且根據大學章程予以公開聽證，聽取本人的申辯，吸收廣大教師與學生的意見，然後對他的處罰才能付諸實行。

In my opinion, the official formulations that advocate the ‘Spirit of Legality’ and the need to ‘Administer Universities According to the Law’ are not empty rhetoric. To the contrary, they underpin the administrative life of any modern university worthy of the name. For many years now our tertiary institutions have aspired to enjoy the status of world-class universities. Despite the significant investment both of human and physical capital dedicated to achieving this goal, to date the results have been negligible. A fundamental reason for this is the failure to implement the rule of law in universities, and a spirit of autonomy cannot be vouchsafed in university life if it is constantly undermined by various forms of external pressure. The upshot is that the vaunted aims of fostering a spirit of ‘freedom and openness’ as well as all that talk of ‘serving society’ are frustrated. The manner in which Tsinghua University has punished Mr Xu is an egregious example of underhand behaviour. It will have exactly the opposite of the desired effect, eliciting in the process widespread concern and broad-based social obloquy. It will become thereby an embarrassment to a university that likes to think of itself as the model of a modern, civilised institution.

我認為，所謂法治精神，依法辦學，對於任何一個現代大學來說，都不是掛在口上的說辭，而是實實在在的制度。多年來我們的大學把創辦世界一流大學作為奮鬥的目標，投入了大量的人力物力，但效果甚微，一個根本的原因就是沒有真正落實大學的法治之道，沒能維護大學的自治精神，總是被各種各樣外來的強制勢力所脅迫和扭曲，致使大學自由開放、厚德載物的精神消弭殆盡。清華大學校方如此懲處許先生，就是一個顯著的拙劣事例，其結果只能是事與願違，引發社會各界的廣泛關注與批評，使文明的大學風貌蒙羞。

As for the University both as a place and a concept, apart from the analysis of the situation from a legal perspective as outlined in the above above, we should note the far more ambitious brief of such institutions, one by which they seek to play a crucial role in the fostering of a nation’s culture or ‘civilisation’. It is why people hold them in such high regard. Unlike businesses or government instrumentalities, universities are a locus for the production of knowledge and creativity for humanity as a whole. They are also where ethical norms can find a clear articulation, a place in which ethical behaviour is also encouraged. These are the reasons why universities are the spiritual locus for nurturing of civilisation.

From ancient times the university as a center of learning has enjoyed a high degree of freedom and openness, this has been even more so since the dawning of the modern era during which universities have been accorded legal protection for their autonomy and independent research activities and have, as a result, garnered widespread respect. Universities can’t just be operated as business concerns, nor are they Party schools. This fundamental awareness informs the rationale of why our nation has [in recent times] championed the adoption of university charters.

關於大學，除了上述從法律視角揭示它的制度性質之外，它還負有更大的擔當，即大學從來就是文明的發源之所，對此人們抱有很高的期待。大學不同於商業公司，也不是行政當局，而是人類知識的發軔與創新之地，是道德昌明的教化之所，因此，大學也就是成為哺育文明的精神之源。古往今來，大學作為學園一直享有較高的自由與開放地位，尤其是進入現代社會，大學的自治與科研得到法律的保障並受到社會的廣泛尊重。大學既不能辦成公司，也不能辦成黨校，這是現代大學的基本理念，也是我國倡導的大學章程的首要標準。

Enjoying as they do unique institutional arrangements universities act, therefore, as vehicles for knowledge and civilisation; in fact, the life of a university is a direct reflection of the level of civilisation of the society in which it operates. This then is why these institutions are seen as weathervanes, both for the nation and for the society as a whole. In its endeavour to further our embrace of the world, and so as to be able to catch up with and surpass the technical and cultural achievements regarded as global best practices, in recent times the Chinese State has allowed its tertiary institutions considerable latitude. This has particularly been the case in the era of Reform and Openness during which universities have enjoyed much greater levels of freedom and openness. Such progress has made it possible for Chinese universities to enhance their practical engagement with first-rank international institutions of higher learning.

Latitude and openness are intertwined with acceptance and cooperation. Without professors who can pursue their academic explorations and give expression to their intellectual emancipation, without an ambience that embraces different points of view, without a discursive environment that is tolerant and harmonious, and if teachers are found to be at fault at every turn, if their ideas are repeatedly interdicted, then university life withers and the very culture that these institutions are supposed to support and nurture will be stifled. The brutal and unreasonable fashion in which the administrators of Tsinghua University have sanctioned Mr Xu are a manifest abuse of the spirit of tolerance native to university life. Not only have they been roundly criticised for it by the broader society, their behaviour will also inevitably raise questions internationally. Moreover, it flies in the face of the strategy of national renewal and internationalisation advocated by our State Leaders.

大學作為一種獨特的機制，它是知識與文明的載體，一個國家的文明程度直接體現為大學治理的文明程度，所以說大學是一個國家與社會的風向標。我國為了進一步走向世界，趕超世界的科技與文明成果，給予大學很大的自主權，尤其是改革開放以來，中國的大學在自由開放方面具有了很大的進步，這樣才有了堪與世界一流大學接軌的些許實力。自由開放是與寬容協和相互聯繫在一起的，沒有大學教師的學術探索和思想解放，沒有不同觀點的兼容並蓄，沒有寬容和諧的輿論環境，大學教師動輒得咎，思想觀點處處受到禁錮，這樣的大學也就是失去了生命，其所承載的文明也就受到嚴重的窒息。清華大學校方如此蠻橫無理地處罰許先生，顯然有悖於大學的寬容精神，不僅遭受社會各界的指責，勢必還會受到國際社會的質疑，這也與我國領導人倡導的民族復興的國際化戰略相互抵牾。

Small although university campuses may be, they bring into focus the knowledge, ethical standards, concepts of legality and cultural norms of society. They are emblematic of the nation as a whole. Although the number of academics at universities may also be relatively small, they too carry within themselves the spirit of an age. Mr Xu has shared his sincere views at a time of national transformation. In his writings he has articulated in detail his analysis of the state of law in China today, given voice to the passions and concerns of the people, offered a perspective on the broad historical context of our present situation and limned the vistas suggesting a possible future.

Xu Zhangrun has given expression to his sincerity with moving clarity and in an heroically undaunted manner, eliciting thereby deep reflection throughout the society. He has been rewarded with widespread praise for having done so. He has held true to the sacred tasks of a true scholar and professor. Who among us is not moved by such a model? Tsinghua University, however, detects no grandeur therein and has chosen instead to resort to punitive behaviour. Everyone is mocking you for your narrow-minded folly and your clumsy stupidity.

大學校園雖小，但它維繫著知識、道德、法治與文明，是一個社會的聚焦，一個國家的象徵，大學教師雖少，但他們身上凝聚著一個時代的風華。許先生在中國處於大轉型的社會當口，發出自己的誠摯之言論，對中國的法治狀況、民情冷暖、歷史演變和未來方向等諸多問題，多有條陳，其拳拳之心，錚錚鐵骨，引發了社會的深入思考，贏得了廣泛的贊譽，恪守了一位學者與教授的神聖職責，天地為之動容。清華大學校方不以為美，反而治罪，其狹迮低劣為天下人恥笑。

Universities are embedded in society; professors are guardians of conscience. In ancient times it was said that ‘Zichan [has the wisdom] not to destroy local schools’ and Socrates was sent into exile. In more modern times, Johann Fichte produced his ‘Addresses to the German Nation’ and Chen Yinque composed an epitaph for Wang Guowei’s Commemorative Stele [at Tsinghua University; see ‘The Two Scholars Who Haunt Tsinghua University’, China Heritage, 28 April, 2019]. These are also timeless examples of human endeavour that flew in the face of tumult and change; they are an integral part of the arduous record of human advancement. They remain a source of inspiration to this day. As university administrators you should by all rights observe legal proprieties and abide by your public responsibilities, encouraging thereby the intellectual creativity and tolerance of your institution. Only such actions can contribute meaningfully to a cultural flourishing and such is a strategy that will support national rejuvenation.

In this present New Epoch in Chinese life, at a juncture when our nation is dealing with a major transition, your behaviour casts Mr Xu as a criminal deserving of punishment. It is not merely emblematic of a retreat, it is also having a deleterious impact on the further advancement of the grand current of Reform and Openness and the fostering of a peaceful environment [in China]. It is for this reason that I must protest in the strongest possible terms:

This is No Way for a University to Act!

大學聯繫著社會，教授守護著良知。古有「子產不毀鄉校」、蘇格拉底之放逐;近現代以來，有費希特對德意志民族的最後演講、陳寅恪撰寫王國維的墓誌銘，這些中外歷史上的風雨滄桑記敘著人類的文明徵程之艱辛，時至今日，其精神依然賡續在茲。作為一校之行政，理應遵循法治，維繫公共職責，促進大學的知識創新和思想寬容，這樣才是文明昌盛之舉，才是民族復興之策。許先生的獲罪受罰，在當今之新時代，在中國面臨轉型變革的當口，不啻於倒退之逆流，這非常不利於進一步改革開放的大趨勢和安定和平的大環境，對此，我強烈呼籲：大學不能這樣做!

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Source:

Xu Zhangrun vs. Tsinghua University
Voices of Protest & Resistance

March 2019-

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