Zhao Hong is a professor of administrative law at China University of Political Science and Law, with research interests including German public law, basic theories of administrative law, national studies, and public law protection of the right to personal information
In the winter of 2023, the temperature in Beijing will rarely drop to minus ten degrees, and it will be dry and cold. One morning at the end of the year, I brought a collection of novels by the Malaysian writer Li Zishu to scholar Zhao Hong, which was full of the warmth and freshness of the southern equatorial country. Law professor Zhao Hong has always loved literature, and she believes that the mission of law and literature is the same - "to shine the light on an ordinary person." ”
After reading Li Zishu's "Vulgar Land", the law professor often wondered, who sexually assaulted the protagonist Yinxia?
A few years ago, Zhao Hong began to write a column on popular law at the suggestion of his classmate and friend Luo Xiang. The latter is a professor of criminal law at the China University of Political Science and Law, and has become a star scholar in recent years because of his open course on law, and with his boost, the public's interest in criminal law has also grown. Zhao Hong is a professor of administrative law at the China University of Political Science and Law, where his research interests include German public law, basic theories of administrative law, national studies, and public law protection of the right to personal information.
For nearly 20 years, Zhao Hong has been teaching and researching constitutional and administrative law, especially German public law. German law has a rigorous conceptual and logical framework. For her, studying Xi and studying law was once a pursuit of pure intellectual perfection.
At present, time presents the complexity of reality with an astonishing density, and the Internet media has brought a steady stream of social events into people's daily lives: the Jiang Ge case, the high-speed rail slap case, why wearing a kimono and taking pictures is suspected of picking quarrels and provoking trouble, and what is the freedom to write erotic novels...... Behind the heated discussions, the public is often faced with a dilemma - what is the relationship between the simple sense of law, morality, justice and goodness that people Xi in their daily lives and the law? Explaining the law in specific events and letting the legal provisions reach the lives of ordinary people is what Zhao Hong is doing now. For her now, the law is not a "game of the mind", but a consensus that is constantly built and spoken.
In September 2023, during the release of the revised draft of the Public Security Administration Punishment Law, Zhao Hong participated in discussions many times, always staring at the core of administrative law's concern - the relationship between the state and the individual. This gaze also runs through her new book, "The Boundaries of Power," which was published in November.
In the preface, Luo Xiang wrote, "Respect for individual rights and restrictions on state power are the basic perspectives of public law scholars. Zhao Hong showed "righteous anger" in the article about the chaos of some disordered rule of law, which Luo Xiang felt was the background color of the value and emotion given to her by her upbringing in the northwest. In the face of major hot cases with complex public opinion, she still bravely issued her sober professional opinions, Luo Xiang believes that it is "this seemingly lonely opinion that defends the academic dignity of the profession she is engaged in".
For a while, Luo Xiang was not in a good state, believing that he had seen through the "flashiness" of the academic world, and passively rejected all academic writing and academic conferences. It was Zhao Hong who told him that "looking too seriously and too lightly are actually a manifestation of not being able to see it", and "cynicism is largely just self-deception that cannot be asked." With the encouragement of this "rare idealist", Luo Xiang slowly walked out of the cynicism of academic nihilism and began to engage in academic writing seriously, and he would first listen to Zhao Hong's advice in the writing of almost every academic article.
Eggs, or high walls, is a famous metaphor written by Japanese writer Haruki Murakami, and is also accompanied by Zhao Hong's academic research and practice. Writers write stories that allow the souls of ordinary people to be revealed, and she believes that legal people rely on strict norms to draw the boundaries of public power and bind it within the framework of the rule of law, so as to "protect the dignity of each individual".
The true water level of the rule of law
People Weekly: Before writing the column on law popularization, you had been engaged in research and teaching related to German public law, but you said that after writing the Law Review, you have become more and more "aware of the true level of the rule of law" and "the social responsibility of being a lawyer".
Zhao Hong: Before writing the column, I was obsessed with abstract things. The concept and logic of German law are very strict, which I find interesting because I am striving for intellectual perfection. In the process of writing the review, I have to collect as much information as possible about this ordinary person, and I will see that many of the laws I talked about in class are actually directly related to specific individuals. And then I found that many of my previous articles were actually not connected with real life.
I now find it far more interesting to study real-life cases that have not been cut by a referee than to translate the precedents of the German Federal Court. When you look at those real, uncourt-cut cases, you can see a lot of how the law affects the fate of a particular person in a way that you might not have imagined when you were discussing those cases in law school.
People Weekly: For example, in "Tianyi Case", you said that it was the first time that you had a real emotional connection with others through writing, how did this come about?
Zhao Hong: Yes, I am deeply touched by the "Tianyi case". This case is a case of a little girl who was sentenced to 10 years in prison for writing an erotic novel, which is inconsistent with the general public's sense of simplicity and law. And there are a lot of legal issues behind it, which have also been discussed in the field of German law: if this kind of erotic fiction is not acceptable to the public, then is it not artistic freedom? Who determines "art", is it the public or the minority, and when there is a conflict between artistic freedom and the protection of young people, should a single value be finally realized by obliterating artistic freedom, or even by imposing such a huge criminal cost on the individual?
In her personal case, you can fully see the influence of the law on the ups and downs of personal destiny.
When I write a column, I am definitely in a different state of reading the news than I usually read casually, and I usually brush it up and pass, and I stay in my head for about 3 minutes. But when writing a column, I will watch the video many times to grasp the details and explain clearly what is behind the case. In this process, the inner shock will stay for a long time.
After writing a column, there would be a lot of people in the mailbox telling me that they had the same problem, such as that he had prostituted and used drugs, and they told me their story out of trust. I will not look at this person in the first place through the lens of moral judgment, I will try to understand him, and what happened to him may be what many ordinary people will experience. Because I don't think anyone is morally perfect, I have this kind of empathy. Writing a column on popular law has greatly broadened my academic horizons, and it requires me to truly write my dissertation on this land.
Zhao Hong and his friends, from left to right, Li Hongbo, Zhao Hong, Chen Bi and Luo Xiang, all four of whom teach at China University of Political Science and Law Photo/Courtesy of the interviewee
People Weekly: You started writing a column on law popularization also from Luo Xiang's encouragement, and in recent years, with Luo Xiang "out of the circle", the public's interest in criminal law has become more and more great. What are the differences between the popularization of criminal law and administrative law, and what is the position of criminal law and administrative law in the lives of ordinary people?
Zhao Hong: Compared with criminal law, I think administrative law is more closely related to the general public. Many people may not be exposed to criminal law for the rest of their lives, but they have to deal with the administration every day. For example, as a small trader, I have a relationship with the market supervision department, I have to plant a tree in the community, and I have to deal with the forestry department. However, from the perspective of legal profession, both administrative law and criminal law belong to public law, and both emphasize the defense against the infringement of individual rights by the state and the active protection of individual rights by the state. Criminal law should control the state's punitive power to impose criminal punishments on individuals at will, and administrative law should also explore how to restrain the state's power in the relationship between the individual and the state, so that it will not expand at will.
If the power of the State is not checked, or if the concept of the rule of law is not implemented, each of us will live in danger and fear. Because you can't find out if you're breaking the law or if you're committing a crime. If this is not regulated by very clear and stable laws, but enters into an unknowable process, everyone will face a situation of expanding power.
People Weekly: The back cover of your book reads, "For individuals, it is okay if the law does not prohibit it, and for public power, it is forbidden if the law does not authorize it."
Zhao Hong: This is the most simple summary of the relationship between the state and the individual in jurisprudence. It is a very clear expression of a fundamental concept of the rule of law. Because the rule of law not only regulates the behavior between people, but also restricts the power of the state, which is the most important aspect of the rule of law.
So when I encounter a lot of things related to administrative law in my life, the first thing I ask is, what is your basis? If you can't come up with a basis, then you can't punish it. I think this is a very simple truth, but a simple truth still needs to be conveyed constantly. I want everyone to know that you have this freedom, and that for us ordinary people, you may be able to solve this problem.
The distance between morality and law
People Weekly: How can individuals be "more realistic" in the face of complex state machinery?
Zhao Hong: I don't think it's complicated. In fact, there are two very simple levels: first, at the level of formal rule of law, is there a legal basis for anything done by government organs? Second, at the level of substantive rule of law, can the legal basis itself be able to make such an interpretation and implementation?
For example, whether the teenager who hugged Messi should be detained, although it seems that there are many factors to be considered in this case, it is nothing more than several levels when analyzed: First, is there any provision in the "Public Security Administration Punishment Law"? But judging from the scene, the teenager rushed into the pitch during the break in the game, and did not interfere with the normal flow of the game, let alone the players playing the ball or shooting.
In this sense, directly imposing the heaviest punishment on a teenager who rushed into the arena just to embrace his idol violates the principle of proportionality of punishment in the Administrative Punishment Law. The police can choose to impose lighter penalties such as warnings and fines. Then why should he be detained? It is nothing more than a consideration of social impact, that is, an attempt to achieve the effect of killing chickens and monkeys in the eyes of the law. This is to be done with great caution.
People Weekly: Even for the purpose of prevention, what is the problem with the legal logic of this kind of "killing chickens and setting an example"?
Zhao Hong: There is a big logical problem behind the "killing chickens and making an example of monkeys": Why do you think that the public has no ability to judge? Speaking back to the case of the teenager Messi, I think the detention of this teenager has not achieved the real goal. If you want to maintain order in the game, you should add security.
Some people say that if they can't control the security guards, do they just accept their fate? Yes, they can only admit it. This is because the law is limited, just as no matter how strict the criminal law is, it cannot avoid the possibility of people wanting to kill, rob, or steal.
The law should allow for diversity, some people are motivated, some people just want to lie flat, legally speaking, you have to support the freedom of others to lie down, you can't say that you will get up for me, right? The law is a bottom-line protection, not a mechanism for moral propaganda. In other words, the law provides you with a minimum bottom line and guarantees your freedom of choice.
People Weekly: The law deals with the bottom line issue and draws the boundaries of power. For administrative law, the control of administrative power is the core proposition, what should be the boundary between the state and the individual?
Zhao Hong: Legally speaking, the individual is the biggest subject to happiness. If we place our personal happiness in the hands of the state, we will have to give up all our rights.
And in a risk society, everyone has to accept a certain amount of risk. You can't ask for that risk to be reduced to 0. When you get it down to 0, it means asking everyone to cooperate, and your freedom is compressed into a very small range. I don't think this is tolerable for the average person.
This is actually a basic truth that we have told you in the constitutional law class, the interdependence between the state and the individual, the state is the means, it is not the end, the individual is the goal of everyone, and the purpose of the state is to ensure that everyone becomes an independent self. I believe that the core of my national identity should be that my rights and autonomy can be respected to the greatest extent under this community.
Zhao Hong at the "Boundaries of Power" book meeting Photo/provided by the interviewee
People Weekly: What about the boundaries of morality? In your commentary on the Jiang Ge case, you said, "The judiciary should indeed have moral care and should be able to withstand the judgment of moral standards, but it is not appropriate to conduct moral evaluation and judgment of the parties in individual cases, let alone directly use morality to judge cases." What does morality mean for the judiciary?
Zhao Hong: The law is the minimum morality, it must be in line with morality and the general expectations of the public, but on the other hand, you can't turn the law into a tool for the promotion of morality, and the law can't raise everyone's morality very high.
For example, in the most typical case of Li Yundi's soliciting of prostitution, he was undoubtedly morally at a loss, but the "Public Security Administration Punishment Law" has already stipulated a punishment that matches his prostitution behavior. He didn't commit a crime, but he was banned for life. He is a world-class pianist and has devoted an infinite amount of time to his career. When a legal punishment such as a lifetime ban is used to promote a high moral standard for all, the consequence is that not only does it cause irreversible damage to him, but also to the public, I feel that the law is too demanding of the individual to do it.
Everyone is not morally perfect, and those of us who study law actually understand this problem best, and it is normal for human beings to have a dark side to human nature. I have a selfish and nihilistic side, and I also have a weak side, can't I accept that this is a normal person? It is not the purpose of the law to make everyone a morally perfect person. So I would say that a lot of times morality doesn't go straight into the law.
When it comes to the verdict in the Jiang Ge case, this verdict is of course very happy, but a lot of moral elements are used in the verdict. Introducing a large number of moral elements into the judgment is equivalent to morality entering the law without any obstacles, and the boundary between law and morality will become blurred. Morality itself is subjective, and my morality does not necessarily match yours. When morality enters the law, it overwhelms the clarity and predictability of the law itself, leaving a lot of room for arbitrary law enforcement.
At the same time, I think it will also create hypocrisy in society as a whole, and everyone will not dare to reveal their true side. The teacher has to play the role of a teacher who is both virtuous and artistic, and the students have to play the role of a diligent and studious child.
People Weekly: Can ordinary people still make moral judgments about the law? If this judgment is lost, will there be a situation in which "evil laws are also laws"?
Zhao Hong: Since the law is the minimum morality, if it does not even achieve the minimum morality, it must be problematic. Nazi Germany, for example, is typical, enacting laws that are designed to sacrifice a minority (Jews), erase the lives of a minority, or restrict the freedom of some people, which is not even a minimum of morality.
There are also cases, such as the discrimination of the law against the children of offenders. Why can't I take the public examination because my parents are criminals? Another example is the issue of illegal records, we have to consider the extent to which a person has made a mistake before he or she has to bear a huge price for the rest of his life.
The number of people punished by the public security administration in China is about 8 million every year, which is a huge number, and almost half of the 8 million people are detained, so how many of these people have a record of violating the law? This will become a stain for life. I don't think most people can accept it. That can only be a constant push for reform of the law itself.
People Weekly: In the process of constantly pushing the boundaries between law and morality to gradually form a clear boundary, what do you think ordinary people can do?
Zhao Hong: First of all, try to look at things as comprehensively as possible. Everyone is prone to living in their own prejudices, and it is important to listen to other opinions. Then, everyone should be aware of the preciousness and importance of the rights in their own hands as an ordinary subject of rights, which I think is too important.
"What should be done must be done in all times"
People Weekly: Is "publicity" necessary for a person engaged in legal research? In the course of teaching at China University of Political Science and Law, do you feel that today's law students pay attention to public issues?
Zhao Hong: Studying law cannot be turned into a game of knowledge. I think that many times, when people who study law come to the back, they will feel more and more that their major is something with a very professional threshold, and it will become an intellectual game. Then, the paper written by everyone also becomes to see whose concept is more lightweight, or whose logic is more subtle.
In the past two years, I have come into contact with law students, and I will also feel their indifference, not that they are demanding of these children, I understand very well, in the midst of great uncertainty, everyone wants to be sure and feel safe. But in turn, it has also caused many law students to be indifferent to the lives of others. In the past, in class, I found that there was light in the eyes of my classmates, but in recent years, you will find that they pay more attention to whether they can get a good score or not.
This actually loses the empathy and sense of responsibility that a person who studies law should have in the first place. In fact, in my opinion, IQ is not important for studying law. Because to put it bluntly, we have to tell the people some common sense issues when we write, and it is not high-minded.
Zhao Hong (right) with Luo Xiang (middle) and Chen Bi Photo / provided by the interviewee
People Weekly: As a legal practitioner, what position should we stand on to balance the relationship between law and the limitations of the times, concepts and ethics?
Zhao Hong: I think that when we study law, we should always find out what the basic positioning of the discipline is. For example, constitutional law or administrative law is directly related to national politics and there is no way to avoid it. But on the other hand, the discipline itself must maintain a certain degree of independence, and there must be a distance. Once distance is eliminated, the discipline becomes a vassal of political life.
The reason why I explore the boundaries of state power in every article in this book is to return to the most fundamental question of this discipline: state power has boundaries and cannot be arbitrarily intervened in personal life.
People Weekly: What is the motivation for your continuous public writing in recent years, is it the enlightenment demand of intellectuals, or has you found emotional resonance in writing?
Zhao Hong: Maybe at the beginning, I didn't feel that I was responsible for these things. But as I get more involved, I build a sense of responsibility. I often tell students now, I say that you should not feel particularly proud of being admitted to China University of Political Science and Law. When you have received a good education, you have to be aware of your responsibilities.
I don't think it's enough to achieve personal success, but if that's the case, then the purpose of studying law is not actually achieved. You have become a strong person in society by studying law.
However, the law is meant to protect the weak, and the strong may fall one day. I think it's in this process, when you see more and more vulnerable people and ordinary people, that sense of responsibility develops.
People Weekly: The changes in society and the adjustment of the system will not change because of the voice of the individual, how do you deal with yourself? Will you feel tired and frustrated by continuing to write, speak out, and "fry cold rice"?
Zhao Hong: I fully admit that my role is very limited. When you realize that your role is limited, you will not exaggerate your work, but at the same time, you will not feel that the work is useless. A lot of people may think that it's useless for me to say it, and it's useless to do it, so forget it. But when you say this, you are also exaggerating your role. Because you seem to feel that the country is going to change because of a certain sentence.
What needs to be done should be done in any era. After doing it, of course, the outcome is not up to me, but sometimes the result of some things may be beyond my imagination, such as the "Public Security Administration Punishment Law", I didn't expect so many people to pay attention to it. But when it doesn't work, do you have to hide in nothingness? I think nothingness is actually an excuse for avoidance or indifference.
I kept writing, and I didn't think I would necessarily be able to change. But after studying law, that's your power. Knowledge itself is a kind of power, but power also means responsibility. For example, after I write a column, I will meet a lot of media friends, so I may have an advantage in expression and communication compared to other teachers. Since I have this opportunity, why don't I say it?
It's normal to be depressed sometimes, but after being down, I wouldn't say lie down completely. I still have to be a teacher, and I have to stand on the podium in front of young people, I am lying flat, how can I teach my students, how can I teach them to have legal ideals?
Southern People Weekly Xi reporter Wu Junshen Southern People Weekly reporter Ouyang Shilei
Editor-in-charge: Zhou Jianping