Progress toward the Rule of Law in China ...

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International Journal of Applied Philosophy A Journal Dedicated to the Practical Applications of Philosophy Editor: Elliot D. Cohen Associate Editor: Michael Davis

©2010 International Journal of Applied Philosophy Published by the Philosophy Documentation Center ISSN 0739-098X

Contents Volume 23

Number 2

Fall 2009

Articles FRITZ ALLHOFF What Is Modesty? ..............................................................................:......................... 165 CAROL V. A. QUINN On Integrity .................................................................................................................. 189 NED DOBOS From Revolution to Regime Change: Consequentialist Barriers to the Transfer of Rights ............................................. 199 SAGAR SANYAL US Military and Covert Action and Global Justice .............................................. 213 MONDAY LEWIS IGBAFEN The Existentialist Philosophy of Albert Camus and Africa's Liberation .......... 235 DAVID N. MCARTHUR, ELAINE E. ENGLEHARDT, AND JILL 0. JASPERSON Progress toward the Rule of Law in China: "Democratizing" the Demands of Law with Confucian Ethics ........................ 249 EARL SPURGIN Moral Judgments, Fantasies, and Virtual Worlds ............................................... 271 ROBERT SCOTT STEWART AND SUE A. KOROL De-Signing Fat: Re-Constructing the Global Obesity Epidemic ...................... 285

Symposium on Torture D.R. KOUKAL Torture ............................................................................................................................ 305 ERIC M. ROVIE Tortured Knowledge: Epistemological Problems with Ticking-Bomb Cases ......................................... 31 5

Book Review MICHAEL BOYLAN Institutions, Actors, and Moral Accountability: A review of The Moral Foundations of Social Institutions: A Philosophical Study by Seumas Miller ................................................................ 335

About the Contributors ...................................................................................... 34 7

Progress toward the Rule of Law in China: ""Democratizing" the Demands of Law with Confucian Ethics David N. McArthur, Ph.D, Elaine E. Englehardt, Ph.D, and Jill O. Jasperson, J. D. Utah Valley University

ABSTRACT: A small sample of sitting Chinese judges was each asked to describe a difficult case, what ethical issues were involved in the case, and how ethics hampered the case, among other questions. The narratives of the cases from family settings suggest- rising from the stew of Chinese social, political, and legal history, the mix of socialist and Confucian ethics, and case facts- that future research on the influence of Confucian ethics may well show that Chinese judges moderate ("democratize") the rigors of a rule-based legal system, or that they feel pressure to do so by their ethics (which, for disputes and crimes in a family setting their ethics, are Confucian ethics). We argue that "democratizing" the legal system by including society's ethics is allowable but unless there is a regular discourse on the role of Confucian ethics in legal decisions judges will continue to feel ethical tension as they go about their work. We recommend that ethics discourse be included along with the Chinese government's structural reforms such as increasing legal education, mandating codes of judicial ethics, and other measures calculated to align the legal system with the Bangalore Principles of Judicial Conduct 2002.

eaching ethics occurs not only in North American universities but in institutions and organizations worldwide, from families in South Africa teaching their children to national legal systems in large and small countries teaching professional ethics to sitting judges and practicing attorneys. One such effort by a national legal system is underway by the government of China to improve the Chinese judicial system 1 and strengthen the rule of law. 2 Since legal systems involve values and ethics "and to varying degrees embody those values," 3 better legal systems combine both rules-based structures and community values.

T

©2010. International Journal of Applied Philosophy 23:2. ISSN 0738-098X.

pp.249-270

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A recent study of sitting Chinese judges4 opens a window on conflicts within the process of their legal judgments and the ethics and values held by the judges and the defendants or plaintiffs that appeared before them. The survey questions focused on their motives for entering the law, their legal training, work routines, a narrative of a difficult case, what ethical challenges it presented them and their integration of ethics with their legal thinking on t.hat case. Through ethical and qualitative analysis, the judges' responses reveal interesting ways in which the judges connected Chinese ethics and law. Ethics and the law are, for them, far-removed from an academic exercise. Survey responses of difficult cases showcased their very personal discomfort in applying the law when it conflicted with an ethical principle. 5 The judges' responses suggest that in many cases their judicial decisions are still influenced by 2500 years of Confucian ethics6 Of particular interest to us is the area of family relationships since the family was a focal point for Confucius and has been a focus of change in Chinese society. The data gathered included 14 difficult cases set in family contexts where the respondent judges described the case, how ethics impacted the case, and their rulings (see Appendix for the narratives). The rulings were coded using comparative, cross-case coding methods as advocated by Glaser and Strauss. 7 We open-coded and axially coded the judges' responses to the questions. Open-coding breaks apart the respondent's information, allowing researchers to identify and label the categories or constructs. Axial-coding may create sub-categories as the researcher digs deeper into the relationships and construct dimensions, and then links to or merges with other categories. A final coding step examines each set of categories and sub-categories for rationalization-either as genuine sub-categories, for collapse into a category, or for promotion to category status. In this process we found the category "How Confucian ethics hampered legal decision" to have six subcategories that accounted for all the responses from the judges. They are: 1. cultural norms (in the judges) clashed with legal norms; 2. the law allows injustice; 3. there was a micro system (internal to the judge's court) failure; 4. there was a macro system (external to the judge's court) failure; 5. cultural norms (in citizens) clashed with legal norms, and 6. (ethics) did not clash with the law; ethics was not a hindrance. The same cross-case comparative method was applied to the narratives to investigate what the data could reveal about the category "how the dilemma presented by the difficult case was resolved." Though not all 38 responding judges provided case narratives set in family settings, the cross-case comparative methods used revealed a continuum into which each case could be categorized ranging from "ethics trumping the law" to "law trumping ethics." The actual categories developed are: 1. legal means were needed for ethical decisions to triumph;

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2. there was a need to moderate a strict application of the law according to social ethics; 3. ethical reasoning was constrained by the law; and 4. Decisions were made in context along with the law. Table 1 shows, in matrix form, the constructs or categories revealed by the 38 judges' narratives and the counts of responses that coded in each cell of the matrix. Of the 14 narratives in family settings that are the focus of this paper, some had more than one resolution method cited in the narrative and several had more than one way in which ethics was seen to hamper or influence the legal decision. Table 1: How ethics hampered law and How ethical dilemmas were resolved (Number ofjudges whose family-contexted narratives coded in both categories} How dilemma was resolved How Confucian ethics hampered legal decision

Found legal Moderate a Constrained by means for strict application law over ethical ethical decision of law according reasoning8 to win to social ethics

Decisions are made along line of legal reasoning

Cultural norms (in judges) clashed w/legal norms

1

9

0

3

Cultural norms (in citizens) clash w/ legal norms

0

1

0

0

Law allows injustice

1

0

0

1

(Micro) System internal failure

0

4

0

0

(Macro) System failure

1

7

0

3

Ethics not a hindrance

0

1

0

0

This paper will proceed by discussing Western concepts in ethics and then developing key concepts in Confucian ethics concerned with family settings. We will go on to review the development of the legal culture of China so that readers can understand the temporal dynamic at work in Chinese legal society and Chinese mass society better. We will then review the analysis of the survey data with an eye toward understanding how Chinese judges "do ethics" at the intersection of their legal culture and Confucian family norms and values as revealed by the decisions and ethical problems described by the judges in their written responses. While the judges generally felt they had made the correct legal decision the great majority acknowledged their ethics were challenged in these cases and rulings. We conclude by suggesting that the leadership of the Chinese legal system should continue working to meet the Bangalore Principles of Judicial Conduct,9 especially in their efforts to select judges with proper legal training, to provide them additional training, and to support their efforts to make correct legal decisions free from external pressure. But we also make the point using the data

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that judges must "do ethics" from an understanding of not only legal norms but social values.

EVERYDAY ETHICS Confucian ethics is often seen as a combination of ethics, law, religion and customs. The Analects of Confucius 10 hold an important role in studying ethics particularly in some Eastern countries. But, in the West what does studying ethics involve? The main reason we engage in ethical reflection is for practical guidance on what we ought to or ought not to do. But while the analysis of some of our moral behavior yields clear-cut answers, there is much analysis that produces less-definite answers. The study of ethics assists conscientious people in establishing the right thing to do in both definite and indefinite situations. Ethics is the disciplined study of the rational justification of moral principles and moral behavior. As a discipline, ethical inquiry produces theories, distinctive concepts and principles, and its own methodology. It also has its own particular language, for example: right and wrong; good and evil; ought and obligation; duty; freedom and responsibility. Ethics is often compared with law and religion. Ethics has to do with what is moral-the moral domain of human behavior. To "do ethics" involves reflection on moral behavior and action on a reasoned basis. Ethics is different from religion in that ethicists believe that rational justification is the best guide to the good actions in both definite and indefinite situations. An ethicist would study as much information as possible on a subject or issue and then make an informed choice. A theologian would at some point rely upon the word of God to determine an answer to an issue or a question. Much of this religious thinking, known as "divine command theory," has been in place for thousands of years. Theologians make final decisions in concert with divine command theory. Ethicists do not ignore issues of faith, but find the best way to make a decision is through rational justification. Our understanding of ethics may be further clarified by distinguishing morality or moral behavior from law. The law reflects various moral rules, ideals, and sanctions of a society. However, obedience to the law is not an adequate moral standard because the law cannot cover all acts or intentions nor does the law prescribe for all acts of mutual aid. Moreover, the law occasionally runs contrary to morality, is unjust, and hence may justifiably be disobeyed in exceptional cases. The law in most countries is established by a legislature and ruled upon by the courts. Laws are established for the best functioning of a society but involve tradeoffs that may not be present in moral thinking. Individuals must obey the laws of the land in which they live. If they break these laws, they may be seen as criminals and may be prosecuted for their actions. For most of us, ethical guidelines are observed by limiting our behavior well before the boundary established by the law. If the goods in a store are stolen rather than purchased, laws have been broken, and the responsible individual will be subject to the law, which includes the workings of a court system. We expect ethics

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to be part of an individual's life, a corporation's culture, and a society's structure. We should know and live our ethics well before confronting the law.

MANY SIDES OF CONFUCIAN ETHICS One of the most common Eastern ethics traditions is Confucianism. In China Confucianism is often characterized as a far-reaching system of social, ethical and legal philosophy. Confucianism is not a religion, but is built on ancient religious foundations, and became so widely known, taught, and practiced that it is a principle source of social values, institutions, and transcendent ideals in traditional Chinese society. Sociologist Robert Bellah says that Confucianism is "fabric and way of life" to many Chinese.11 During his life, Confucius wasn't seen as politically influential, but his teaching had a great impact throughout East Asian society. In several historical periods, teachings attributed to him served as the basis of state orthodoxy. And, writes Tu, 12 in China orthopraxy (correct action) was inextricably linked to orthodoxy (correct thinking) as modeled by the Confucian classics rather than being based on the requirements of statutory law. Drawing on pre-existing ethical views, such as the central importance of filial piety, loyalty, sincerity, etiquette, benevolence, etc., Confucius taught the need for virtues and rituals. Confucian virtues also focused on dedication to work, which enabled followers to create political cultures based on trust and responsibility. Through his teachings, leaders encouraged the people to enter into a social and political covenant with them. This way punishment and coercion wouldn't be needed for internal social and political harmony. Additionally, moral authority, as expressed through rituals, helped to maintain political order. This political order could apply to the sage-king, the nobility, the enlightened people and the masses. In Confucianism, "politics" meant moral persuasion, and the purpose of the government was not only to provide food and maintain order but also to educate the people about what was right-hence the inclusion of state orthodoxy and the extension of this task to officers of the government, including magistrates. 13 There are some areas where Confucian ethics may conflict with the law. A specific occurrence is when assessing a patriarch's duty to guide or punish family members. Under current versions of Confucianism, a man was expected to regulate his own family's behavior well before any law was broken. For example, the regulation of one's own family was an indicator of a man's self-development. In Confucian Analects, "a superior man will firmly regulate his household. An inferior man has laxity in his household." A common Confucian adage states: "A man does not know the wickedness of his son; he does not know the richness of his growing corn." In other words, a man who knew enough to be able to assess his own crops should be able to assess the results of his parentage of a son. 14 A Chinese man may believe he is duty-bound or at least allowed to punish a wayward son or wife through extraordinary physical means, perhaps even including death. Confucius emphasized family harmony. He describes the importance of a well-ordered household, "where love and harmony holds sway," relating the

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following: "It is said in the Book of Poetry: 'A happy union with wife and children is like the music of lutes and harps! When there is concord among brethren, the harmony is delightful and enduring. Thus may you regulate your family and enjoy the delights of wife and children!' The Master said, 'In such a condition parents find perfect contentment."'1 5 Confucius and Confucian thinkers have expanded on the need for stable, understandable norms in relationships-choosing to focus on the vertical relationships that are consistent with early forms of family and political power such as king-subject, husband-wife, father-son, older brother-younger brother, and friend-friend-three of these being based in the family. These roles and the norms of obedience from those "below" and paternalistic obligation from the one "above" have been powerfully ingrained in Chinese culture. 16 These roles have long histories but increasingly look out-of-date in some areas and activities of society. In the Li Ki a woman was counseled to subject herself to her husband for the purposes of discipline within the family, as well as for material support and protection. "The woman follows the man. In her youth she follows her father and elder brother; when married, she follows her husband; when her husband is dead, she follows her son." 17 It is no surprise that the Confucian system of ethical thought in regard to family matters could and does clash with rules-based modern Chinese law. One side of Confucianism is the affirmation of accepted values and norms of behavior in primary social institutions and basic human relationships. For Confucius all human relationships involve a set of defined roles and mutual obligations where each participant should understand and conform to his/her proper role. This begins with the individual and family, which leads to people acting ethically and forming the "perfect society." 18 The Great Learning describes this: "Only when things are investigated is knowledge extended; only when knowledge is extended are thoughts sincere; only when thoughts are sincere are minds rectified; only when minds are rectified are the characters of persons cultivated; only when character is cultivated are our families regulated; only when families are regulated are states well governed; only when states are well governed is there peace in the world." 19

Core Confucian expectations include an expectation that family members have consideration and respect for one another. It is also expected that there will be love within the family. This emphasis on context-specific, pragmatic, situational ethics is central to why Confucian sages loosely apply these ideals to determine what is right in a situation rather than rationalizing based on universal principles. 20 Confucianism is currently under protest in some countries, including China, because of strong anti-feminist tendencies of the philosophy. Under consideration in some Confucian societies is eliminating the current practice that any male, no matter how young, takes precedence over any females as the head of the household. Civic and feminist groups have long argued Confucianism is symbolic of gender inequality. Confucian supporters believe the views are necessary to maintain family structure. Opponents of the system contend that the system needs to be reformed because of the drastic changes that have taken place in society.

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CHINESE RULES AND LAWS: A BRIEF HISTORY Access to Confucian rules and laws, however, has been developing as the Chinese culture has developed. In China, the process for obtaining or even understanding "moral rules and laws" came down to the principles formulated by Confucius and Confucian scholars. Through the Qing dynasty (1644to1912) common people did not have access to codified law; however, scholar-officials, such as magistrates rA' tit ffeiJ) Gudges), did have access. In the Qing-era book of law, Da Qing Lu ethics were incorporated into the law by focusing on classical Confucian texts and commentaries. An extensive study of the Confucian classics, not the law, enabled one to sit for an examination which was the gateway to receiving an administrative post in the Imperial system. Thus, the system made legal education the vehicle for Confucian ethical training. The revolutionaries that overthrew the Qing government in 1912, creating the Republic of China, had to start over by building both institutions and legitimacy in an atmosphere of turmoil and conflict between political extremes-the Chinese Communist Party (CCP), their rivals, the Nationalists (KMT), and later between 1931 and 1945, the Japanese Army. 21 By 1949, the People's Republic of China was declared, and after purging remnants of the Qing and KMT governments at all levels, the government began the slow process of "modernizing" social, political, and legal structures along Marxist and Soviet lines rather than Confucian texts. The 1954 Constitution set up the framework of a legal system. However, political and social turmoil due to CCP-infighting before and during the Cultural Revolution (1966-1976) eviscerated the Chinese legal system. Under the 1975 Constitution, law schools were reopened and work commenced on new criminal and civil codes. But court decisions were still reversible by the CCP and, lacking enforcement capabilities, carrying out court decisions depended on the agency involved and their interests. Using the momentum accompanying free-market reforms, Chinese governments under Deng Xiao Ping, Jiang Zemin, and Hu Jintao (leaders from 1978 to 2009) have imported legal ideas from other nations to meet the demands of treaties such as those marking accession to the World Trade Organization (WT0). 22 China's size, diversity, and opaque rule-making systems, interpreted through the lenses of competing local, provincial, and central government political and economic interests have translated the legal system into a patchwork legal system that is, at best, difficult to master. 23 Chinese law is often contradictory and opaque, even to those administering it. However, even with the flurry of rule-making, higher educational standards, and increasing judicial staffing, those who possess power, including judicial power, can easily become corrupt because of the wide latitude traditionally given local officials to pragmatically interpret law. 24

Li,

t Respondent judge might be implying he may believe the missing son might have killed his mother, writing, "It's seldom that a person killed his wife. Why did he kill his wife? Whether did he do? Why was his son missing?"

N U1

-....J

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DAVID N. MCARTHUR, ELAINE E. ENGLEHARDT, AND JILL 0. JASPERSON

and possibly subject to temptation to crime (see especially cases 8, 10, and 12). Not only have these fathers done "violence" to the family, usually in the name of self-serving "love" but they have denied their natural children economic and familial support. This violates the role expectations Confucianism lays out in the father-son relationship and is also a source of ethical tension for the judges. Cases 9 and 5 are outliers. Case 9 is the case of a court that faces the tricky challenge of reversing an incorrect earlier ruling by a senior danwei member. 27 The respondent judge is clear that the prior ruling is in error, that the senior judge will be disciplined or criticized if the error is revealed on reversal, and that the senior judge will be irritated if this were to happen. Additionally one of the litigants to the disputed contract threatens the panel of judges that if the ruling goes against her, she will bring about the death of her family and herself. Thus, this unusual civil case threatens violence to the family but clearly breaks the parental duty to protect and nurture the family. Case 5 is much less dramatic in which the respondent judge points out that conflict within the family should be settled within the family and not in court but it is made more difficult because of a non-family Confucian failure (leaderfollower) of the daughter-in-law not cooperating with the judges as they tried to get information and mediate. 28 We are now ready to see what the survey data on difficult cases in family contexts can illuminate with regard to the key question, "How do Chinese judges 'do ethics' as they make legal decisions under the influence of and sometimes in conflict with Confucian ethics?" Table 3 presents the coding of each of the cases on the categories or constructs summarized in Table 1 (organized by cases as in Table 2 by Confucian ethical failures.) Thus, the first block of cases focuses on the most violent attempts to regulate a family for peace and harmony. Their coding on how the Confucian ethics hampered the legal decision is presented in the 6 columns on the far right. Their coding for how the judges resolved the dilemma presented by the ethical conflict is in the three columns in the middle. Case 2 did not explicitly reveal how the case was resolved but a careful reading of the text combined with some knowledge of current Chinese legal practice allows an inference. Generally, if convicted of murder, convicts are quickly executed in China. Aggravating this is the violation by the son of his filial responsibility toward his father through patricide. Despite this, the respondent judge "softens" his narrative by writing, "His father was a wrong-doer." and admitting that the open-and-shut legal case was, "not very easy to deal with." This suggests that he decided the case by "moderating a strict application of law according to social ethics." A visual scan of the entire first group of cases listed in Table 3 shows a" grayed" block with surprising uniformity of coding how ethics hampered legal decisions and how dilemmas were resolved. This suggests that, for cases of murder in the father-son-relationship, when aggravated by abuse and bad morals, judges may moderate their norm of capital punishment-for-murder because of the failure of Confucian ethics inherent in the case. The illegal, violent actions of the defendants are in direct contravention of the law-but there is a mitigating cultural

Table 3: Confucian Ethical Failures showing coding for How Dilemma was resolved and How Confucian Ethics hampered legal decision /grouped, as in Table 2, by descending levels of violence}

How Confucian ethics hampered decision

How dilemma was resolved

"'

Case

Description

~~ ·-,o "'';:: ;::

Moderate a strict application of law according to social ethics

Found legal means for ethical decision to win

t:S ;::

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Decisions are made along line of legal reasoning

"'~ !':-

8"' ~ "'8

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;

son kills abusive father

•,.

; impli~d •,

l 3

father kills abusive son

7

father & 2 sons kill abusive elder son

11

father kills "bad guy" son

·.

'

.

;

14

father kills abusive son

6

husband confesses murder of wife, son missing

4

deceased leaves estate to paramour v. family

I.•

10

divorce makes wife & child destitute

'

12

··Jc

policeman kills unfaithful wife '•

: ; .·

x

1· ·• ',

8

children of divorced parents become criminals

13

unfaithful husband swindles wife out of money

9

resolving contract dispute threatens judicial "face" but litigant threatens family suicide

x

father-in-law sues daughter-in-law

na

x

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x

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260

DAVID N. MCARTHUR, ELAINE E. ENGLEHARDT, AND JILL 0. JASPERSON

"rationale" of regulating one's home toward peace and harmony that resonates with the Chinese judges and the popular mind. The judge in case 11 writes, "According to law, the father's action (the murder of a 'bad' son) is illegal. But in the terms of ethics, his action is reasonable" and again in case 3's example of a father who kills his abusive son the judge respondent said, "(To the) ordinary person, his father did a good thing. But in terms of criminal law, the father must receive criminal responsibility." Case 1 in which the policeman shot his unfaithful wife might be the spark for much more researcher interest in the future. Researchers could examine if there is a greater difference in the judicial moderating impact of illegal corrections of the Confucian ethical failures in father-son relationships than the ethical failures in husband-wife relationship (e.g., which" costs" moremurdering an abusive son or an unfaithful wife?). Also significant in our analysis of Table 3 data in the first group of cases is the consistency with which researchers found evidence in the category "how Confucian ethics hampered legal decision" was distributed in both the judges and the citizenry. The judge in case 4 revealed that, "ethics must be considered when the judge makes a decision. The Chinese Constitution says the law must abide by the social ethics. It's a spirit of law which helps the judge deal with contradiction between the law and the ethics." Hence, Chinese judges "do ethics" by moderating their decisions on cases in accordance with social ethicsbut that doesn't mean they always fully agree with these compromises. More research is in order to understand how comfortable judges and the Chinese public are with these tradeoffs. In either case the work involved in compromising is challenging and adds difficulty to their job. Case 7's judge alluded to the difficulty, "in my court, the judge tried to tell the three men's criminal action, whose criminal action was most serious; even through the job was very difficult in the end. The court finally reversed the decision of intermediate court" (italics added for emphasis). The second group of cases listed, the less violent cases involving social disruption of families and homes, had a similar "structure" in how dilemmas were resolved but a slightly less structured reflection in "how Confucian ethics hampered legal decision." Further research on changing norms regarding divorce and marriage might be fruitful to students of China and Chinese ethics in this regard. Two of the six judges saw the impact of softening values toward the family to be signs of macro (external) system failure-in this case larger, social failure. Daumann argues just this point when he says that the way a society's culture evolves influences the rules it uses and how it uses them. 29 Two of the respondent judges seemed to articulate this change in ethics and the subsequent dissonance with the law as focused in citizens' norms of behavior. With further probing in a more representative sample, researchers might be able to clarify the construct. Our conclusion, supported by the data's analysis, is that Chinese judges feel conflict between the Confucian ideals of the integrity of the family and home, where responsibility lies for achieving those ideals, what actions lie within the allowable scope of those so charged and the allowable scope of actions of those persons under law. Reacting to the breaches of law that brings the actors into

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their courts to face charges, they work to resolve the dissonance between what the law demands and what Confucian mores allow by moderating or attempting to moderate their legal decisions. This "crafting" of legal decisions in a way that moderates between the demands of rule-based law and social ethics can be understood as a "democratization" of the law. 30 Lightcap points out how social ethics "moderate" rule-based law. 31 Using the Daniel Webster character in Stephen Vincent Benet's "The Devil and Daniel Webster" 32 she shows that US society allows the use of a procedural part of the legal system, the jury trial, to moderate (to frustrate) the rule-based demands of the law-the Devil's ironclad contract for Jabez Stone's soul -which he'd exchanged for 10 years of good luck. Lightcap goes on to show how juries are democratizing tools in the American legal system, citing the trial judge's charge to the jury in Roth v. US to be the "common conscience of the community."33 In like manner, the Chinese Constitution charges sitting judges to craft the demands of the law together with the ethics of the community in their legal work. Part of that process is subject to the judges' own ethics toward their work and profession.

ATTITUDES TOWARD A JUDICIAL CODE OF ETHICS MAY BE INFLUENCED BY TEACHING ETHICS Now we briefly tum to the survey results when the judges were asked, "Do you have a written set of professional rules of legal ethical conduct? Discuss why or why not." All 39 judges claimed their work units had a code of ethics. Two of them said they used the Supreme People's Court code of ethics rather than writing one as a group. All others wrote that their danwei had drafted theirs after the Judges' Law was enacted. Only one judge expressed a negative attitude towards a code of judicial ethics. That respondent, called out in note 4, said, "The reason that till now we don't have one yet is the laws and ethics fit each other well, and we seldom encounter cases in which both are in conflict." Because that judge provided no data they were removed as an "outlier." Since the question was open-ended, respondents could give any number of answers. Their answers were coded, using the method described earlier, into four categories; Restrain the use of power, Guide professional behavior, Build or retain public trust, and The Chinese legal system requires it. The respondents' single- and multiple-cited reasons (the co-citation matrix) for why their danwei had a code of ethics is given below. 34 When the coded data were clustered using a sort routine that grouped cocitations of reasons why their danwei had a code of ethics according to maximum similarity, the structure (clusters) shown in Table 4 appeared. Within each cluster we calculated the average years of formal legal training and the years since the completion of those programs as proxies for the amount and currency of formal education. The clusters were then sorted by average years since latest law degree and the clusters were labeled by career phase, early career (from 1 to 7 years), mid-career first half (from 7 to 8 years), mid-career second half (from 8to10 years), and senior career (more than 10 years).

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DAVID N. MCARTHUR, ELAINE E. ENGLEHARDT, AND JILL 0. JASPERSON

Table 4: Reasons given for why you (your danwei) have a judicial code of ethics with indicators of education and career phase Guide Chinese Restrain use Build/retain professional legal system of power public trust behavior requires it

Case

5

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9

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26

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31

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4.8

36

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37

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3

0

1

0

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6

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0

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II

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12

0

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13

0

14

0

15

0

16

0

33

0

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A father killed a son who was a bad young person, he had (To the) ordinary person, his father did a good done a lot of wrong things and he had become a bad man thing. But in terms of criminal law, the father must who couldn't be changed. He also often assaulted his parents receive criminal responsibility. and his neighbors so his father killed him.

No, in my opinion, I think it is easy to incorporate in the case. Not the above case. We should give that father a lighter punishment, though he had been convicted of murder.

In a case of succession, the husband wrote a will. According to the women who illegally lived with him got his property. His wife and his children got nothing. When the husband died, the women wanted to inherit property. The wife didn't agree with her. The women sued the wife for inheritance. The inheritance law says if the death writes a valid will before he dies the will must be carried out. The will in the case is the inheritance law. It was valid.

The will was valid so it ought to be carried out according to the law. When the husband and the woman illegally lived together, the husband didn't divorce. The woman wanted to get the property because of illegally living together. The act was contrary to (social) ethics and was blamed by the society.

The ethics must be considered when the judge makes a decision. The Constitution says the law must abide by the social ethics. It's a spirit of law which helps the judge deal with contradictions between the law and ethics.

The plaintiff is an old man who is the father-in-law of the defendant. The old man sued the defendant for moving from his house. The defendant was involuntary to do that.

The ethical issue is the defendant thinks she and her father-in-law are both members of the family. The problems between members in one family should be resolved by themselves, but the father-in-law sued her. She doesn't think through it.

The ethics hamper the case so that the case is difficult to be dealt with because the defendant didn't cooperate with the judge during trying her case.

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It's a case of murder. The defendant was accused of murder. It's seldom that a person killed his wife. Why did Yes. To some extent, maybe yes. The couple and their son of 19 years slept in the same room. he kill his wife? Whether did he do it? Why was his But in the next morning, the defendant found his wife was son missing? killed and his son was missing. He said that he even went out at midnight and didn't know who killed his wife. But he confessed his killing act in the arraignment. He claimed in session, other evidence (which) was contradictory in the case. It's difficult for a judge to decide.

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A family had a father and three sons. For some reason maybe, the elder abused the father. So the father planned to kill the elder son with the two other sons, and acted on the plan to kill the elder son. In intermediate court the judge sentenced the father and the two other sons to capital punishment. The father and sons appealed the case to our high court.

If the sentence (is upheld, the) father and the two other sons face death. So the family will have no male to have their own descendant. It is a very hard thing in Chinese common person's mind, but the three men's criminal actions are all very serious.

Yes, in my court, the judge tried to tell the three men's criminal action, whose criminal action was most serious; even through the job was very difficult in the end. The court finally reversed the decision of intermediate court.

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I encounter some cases and the defendants are very poor, when they are very young their parents were divorced, and later they haven't a good education they couldn't find a job, so the committed a crime.

If the defendant should be responsible for the crime The ethics hampered the case. If he had only by himself. a happy family and had a good education and maybe he would not have committed the crime.

What impressed me most is the case of contract dispute between two parties which has been decided by the director of our second civil court. In the former case, it was decided that the contract is valid and B could sue for damages caused by A for B's breach of contract. So B sued as the former decision told him, but after hearing the case we found the former decision was exactly wrong the contract is invalid according to the law of our country. Furthermore one of the parties threatened us that if the contract was decided to be valid, she would commit suicide including her family. She said that 8 lives in her family would be lost if we could not protect her interest.

Abide by Jaw or by our director. First, if we decided that the contract is invalid, then there was a great contradiction between our case and the former case in spite of the same facts. Secondly, the director of our court would lose face since his decision was wrong. Worst of all, he would be punished for his wrong decision. Such a consequence would annoy him. As a result, it would do harm to ourselves. Thirdly, if we decided that the contract is valid, it would be a great shame for us to make a wrong decision. Worst of all, we would be punished as well and maybe the party of A would commit suicide just as she had threatened. We can hardly imagine what would happen.

Yes, it was easy to incorporate ethics in the case. In such an acquisitive society, it's natural for our Chinese judges to struggle between law and human relationships and all kinds of temptation. I do think that what is most important of all for our judges is to respect the laws and abide by the laws. In other words, the first of all laws is to respect the laws. Fortunately, we handled such a case smoothly by using the principle of "stare decisis" As a matter of fact, we dealt with the contract (as) invalid but superficially stated the contract is valid.

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Describe a difficult case you have encountered in your work as a judge.

What ethical issues were involved in the case?

Did ethics hamper the case in any way or was it easy to incorporate ethics in the case?

Once I encountered a divorce case. The plaintiff is an official man. He met a girl and fell in love with her. So he rose up a divorce action. The original court made a judgment in favor of the defendant, in the light of the good marriage of the two parties. But the plaintiff wasn't satisfied with the outcome, so he appealed. During the appellate procedure, we did a lot of work to mediate, because their child was only one year old and the wife had no work at that time. If we agree with the appellant's request, the child will lose her biological father and she will live a bad condition with her mother. But the appellant assured (us) he must terminate the marriage because he didn't love his wife anymore. At last we determined to support the appellant's request.

Though the traditional idea of Chinese is to Nowadays, which right is more important in a family-the right to divorce or the rights of their keep integrity of a family. The conception child? Should we support the party who has fault in is generally changed, some people would rather terminate an unhappy marriage than the divorce case? sacrifice his own happiness just to benefit their children. So it is a conflict of two trends of ethics. In this case, we tried to incorporate the two trends of ethics. We support the husband's request, but we also adjudicated him to pay a large number of compensation to his wife on the ground of his fault.

Here is a case: A son was very bad guy, and his father killed him. The father was accused of murder.

According to law, the father's action is illegal. But in the terms of ethics, his action is reasonable. So conflict existed in the case.

Three years ago I encountered a difficult criminal case in A conflict between morality and law is involved in which the defendant, nineteen years old, coaxed and kidthe case. napped a child, eight years old, from the primary school. The defendant's parents divorced when he was five years old. As his father refused to support the education, the defendant kidnapped the child who was the same biological father as the defendant and was taken well care of in the two kidnapped days. In this case, the defendant was pathetic, he should be convicted.

Usually, ethics is easy to incorpor~te in the case. For most of the law have the same role with ethics. However, ethics is ... especially some out-of-date ethics, hamper the case. The society is developing and some people's minds don't change. I think moral evaluation, to some extent, can influence with the punishment on the defendant.

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Describe a difficult case you have encountered in your work as a judge. I case I encountered two years ago was a domestic property dispute. A woman sued her husband for transferring property with a deceived means. The husband borrowed his female friend's (identity) card to open a stock account. And he transferred money from their domestic stock account to the new account named other person he had opened. The wife felt she was cheated by her husband and claimed and wanted to affirm the ownership of the new account belonging to the spouse. She also requested her husband to return the money which he had drawn from the new account. Under the facts they both agreed, it was no doubt that the new account was going to the domestic property through the account's title was other person's name. The dispute was whether the husband drew money from the new account, if he did it, what amount he had drawn. Because there was insufficient evidence to prove the fact of dispute, we only support the plaintiff's first assertion.

What ethical issues were involved in the case? The act of this defendant (the husband) didn't accord with social ethical rules and traditional morality. He violated the rules that husband should be loyal to his wife and family. What he had done, such as cheating his wife, transferring property with some malice aims, damaged the relationship of the spouse and the domestic harmony.

Did ethics hamper the case in any way or was it easy to incorporate ethics in the case? The ethics gave some effect on this case but didn't hamper it. When our panel discussed this case, we thought the defendant probably drew money from the new account and he had defect in morality. I had sympathy with the plaintiff that had met. But only under the facts that could be supported by sufficient proof, we can approve the plaintiff's request. Because of a lack of evidence, we couldn't assert whether the defendant drew money from the new account and the amount of money he had drawn. So our judgment didn't let the defendant pay back to the plaintiff.

Sometimes I may face a case without sufficient evidence. I I. To believe yourself as a judge or follow public. 2. Generally, ethics doesn't hamper the case. may find the case is within reasonable doubt. But the media the father would face a light sentence because of the Even when there are conflicts, judges have the authority to handle it. and the public give me pressures. Sometimes, I may encoun- son's irnmoral[ity]. ter a murder case. The kind old father killed his son because his son abused him and hit him very often. In fact, the son is a rascal.

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Endnotes An earlier version of this article was presented at the 10th Annual Conference for the Faculty at Utah Valley University (21 January, 2009) and was published in that conference Proceedings. The first author wishes to thank Carla Jones for her help in transcribing the survey responses into electronic format. All the authors wish to thank the anonymous reviewers and generous colleagues who helped strengthen this work. 1. Congressional-Executive Commission on China, Annual Report 2005 (Washington, DC: US Government Printing Office, 2005); also William P Alford, "A Second Great Wall?: China's Post-Cultural Revolution Project of Legal Construction." Cultural Dynamics 11.2 (July 1999): 193-215; and Xiao Yang, "Supreme People's Court Work Report," text of a speech delivered at the 5th session of Ninth National Peoples' Congress, Beijing, China, 11 March, 2002. Accessed online at Xinhua News Agency Domestic Service November 2007 (no longer accessible). Subsequent annual work reports by the Chief Justice of the Supreme People's Court reiterate the call for increasing professionalism through selecting better trained candidates as judges, increasing training of judges, and codes of ethics. 2. Jielong Duan, "Statement on the Rule of Law at the National and International Levels (2007)," Chinese Journal of International Law 7.2 (July 2008): 509-12. 3. Joseph Grcic, "The Rule of Law and Presidential Pardon," International Journal of Applied Philosophy 20.l (March 2006): 97-105. 4. Jill Jasperson, the third author, was part of a "foreign expert" program by the Chinese government to train judges in the fall of 2002. It was organized by Brigham Young University and took place at Tsinghua University. Because she understood the "foreign experts" program did not conduct formal surveys she spontaneously drafted an ad hoc, open-ended, informal, written questionnaire, duplicated it, and administered it to the 39 judges attending her seminar. The survey did not include demographics to help protect anonymity, but she observed that the group was mainly younger than a typical sample of sitting US judges, and, relative to a similar US sample, many more were women than she expected. Diversity of the sample from an education and experience perspective is more quantifiable. All but three had Bachelor's degrees. It was possible, up until enactment of the "Judges' Law" to take the examination allowing the practice of law without any formal schooling or to practice law with the equivalent of a junior college degree (dazhuan). Of those without Bachelor's degrees, one taught him or herself the law for 5 years and took the national exam and two others studied for 2-year certificates. The sample averaged 3.97 years of initial formal schooling (s.d .. 959 years, min. 2 years, max. 8 years) and had spent an average of 10.3 years (s.d. 3.3 years, min. 2 years, max. 17 years) in the Chinese legal system. Fourteen of the thirty-nine had five or more years of legal training. The questionnaire asked for written answers to questions including: • "Where and when did you go to law school? How long did you study?" • "What courses did you study" • "Describe a typical day as a judge in your court." • "Do you have a written set of professional rules of legal ethical conduct? Discuss why or why not." • "Describe a difficult case you have encountered in your work as a judge." • "What ethical issues were involved in the case?" and • "Did ethics hamper the case in any way or was it easy to incorporate ethics in the case?"

PROGRESS TOWARD THE RULE OF LAW IN CHINA

269

Data from the first half of the questionnaire was the basis for a paper by David N McArthur and Jill 0. Jasperson, "Giving the Tiger Claws: Movement toward the Rule of Law in China through judicial value reform," presented at the Annual Meeting of the Western Academy of Management, Missoula, MT: 21-24 March 2007. 5. One of the 39 insisted that there was never a conflict between law and ethics and didn't provide a substantive answer to these questions. One of the judges, not a part of the group that provided these family-contexted cases, had been a sitting judge, but at the time of the survey was a legal researcher for a Provincial Higher Court. This dataset is not representative of any specific group of or all Chinese judges since it was a convenience sample and has not been evaluated for its ability to represent how Chinese judges as a group operate. It is intended only to open the window for further research exploring these topics. Though it is tempting to analyze statistically, the sample size is too small and is non-representative and so, conclusions drawn must be treated as suggestive only. 6. Confucian ethics was not mentioned explicitly by that name by any respondent. The Confucian ethics that affected their legal thinking will be developed in this paper. 7. Barney. G. Glaser, and A. L. Strauss, The Discovery of Grounded Theory: Strategies for Qualitative Research (New York: Aldine de Gruyter, 1967). See also Abraham L. Strauss and J. Corbin, Basics of Qualitative Research (Newbury Park, CA: Sage, 1990). 8. This category was generated by cases provided by judges that were not set in a family context and do not feature in this analysis. It will not be included in subsequent tables. 9. The Judicial Integrity Group, "The Bangalore Principles of Judicial Conduct 2002." Available online at http://www.ajs.org/ethics/pdfs/Bangalore_principles.pdf. Accessed November, 2009. 10. Arthur Waley, The Analects of Confucius. (London: Allen and Unwin, 1938). 11. Robert N Bellah, The Broken Covenant: American Civil Religion in a Time of Trial (New York: Seabury Press, 1975). 12. Wei-ming Tu, "The Enlightenment Mentality and the Chinese Intellectual Dilemma," Perspectives on Modern China: Four Anniversaries, ed. K. Lieberthal, J. Kallgren, R. MacFarquhar, and F. J. Wakeman (Armonk, NY: M.E. Sharpe, 1991): 103-118. 13. Robert Peerenboom, "Confucian Harmony and Freedom of Thought: The Right to Think Versus Right Thinking," Confucianism and Human Rights, ed. William Theodore de Bary and Tu Weiming (New York: Columbia University Press, 1998): 234-60. 14. Confucius (author) James Legge, (editor), Confucian Analects, the Great Learning and the Doctrine of the Mean (NY: Dover Publications, 1971). 15. Ibid. 16. Ming-Jer Chen, Inside Chinese Business: A Guide for Managers Worldwide (Cambridge, MA: HBS Press, 2001). 17. Confucius (author) James Legge, (editor), The Li Ki (London: Ed F. Max Muller, 1926). 18. Confucius, Confucian Analects. 19. Ibid. 20. Robert Peerenboom, Law and Morality in Ancient China: The Silk Manuscripts ofHuangLao (Albany, NY: SUNY Press, 1993). 21. Tony Saich, Governance and politics of China (Basingstoke, Hampshire, UK: Palgrave, 2001).

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DAVID N. MCARTHUR, ELAINE E. ENGLEHARDT, AND JILL 0. JASPERSON

22. Dingjian Cai, "Development of the Chinese Legal System Since 1979 and its Current Crisis and Transformation" Cultural Dynamics 11.2 (July 1999): 135-67. 23. Saich, Governance and politics of China. 24. Peerenboom, Law and Morality in Ancient China. 25. All the judges in the sample reported their daily work routine was to work on a multi-judge panel with one of the panel being the chief judge. They described working to understand cases from filed documents, meeting with each other.outside of the court sessions, actively trying to persuade colleagues, negotiating with the parties in civil court disputes, and writing decisions. The importance of their colleagues' training and opinions was therefore, also important. 26. Or, as one author surmised, perhaps the judge is rhetorically opening up the narrative to the possibility that the son, who's missing, might have done it. 27. A danwei is a local work unit in the Chinese socialist employment system, in this setting, the judicial work unit of a specific court such as a Provincial Appellate Court. Respondent judges are all members of their judicial danwei and meet together to discuss cases (see note 24). Senior members are deferred to and honored. But all members of a danwei are subject to public correction for mistakes in their work. 28. It is common for Chinese judges to take on other roles such as mediators between litigants before bringing cases to trial (see footnote 27). 29. Frank Daumann, "Evolution and the Rule of Law: Hayek' s Concept of Liberal Order Reconsidered." Journal of Libertarian Studies 21.4 (December, 2007): 123-50. 30. Gerald J. Schmitz, "Democratization and Demystification: Deconstructing 'Governance' as Development Paradigm," Debating Development Discourse: Institutional and Popular Perspectives, ed. D. B. Moore and G. J. Schmitz (New York: St. Martin's Press, 1995): 54-90. 31. Tracy Lightcap, "Why the Devil Couldn't Beat Daniel Webster: Absolutes, Contradictions, and the Transference of American Legal Institutions," New Political Science 28.2 (June 2006): 245-60. 32. Stephen Vincent Benet, The Devil and Daniel Webster (New York: Farrar and Rinehart, 1936). 33. Roth v. US, 354 US 476 (1957) cited by Lightcap, 2006. 34. We remind the reader that this is a non-representative sample. No strong conclusions about all or any Chinese judges in terms of these and other categories and data can be drawn or supported by statistical analysis. This work is only exploratory and should be understood only to suggest potentially fruitful areas of more rigorous study. 35. Edward H. Schein, "Organizational Socialization and the Profession of Management," Organizational Psychology: A Book of Readings, ed. D. Kolb, I. Robin, and J. Mcintyre (Englewood Cliffs, NJ: Pentice-Hall, 1971): 14-5. 36. Bruce M. Wilson, Juan Carlos Rodriguez Cordero, and Roger Handberg, "The Best Laid Schemes ... Gang Aft A-gley: Judicial Reform in Latin America- Evidence from Costa Rica," Journal of Latin American Studies 36 (August 2004): 507-31. 37. We have not focused on, analyzed, or included non-Confucian ethics such as those of Tibet and non-Confucian social norms such as the saving face or the preference for male children, though those were mentioned in cases 9 and 7. The Chinese judges' power to interpret/adapt/ moderate their approach to legal decisions may cover those types of dilemmas also. 38. Wilson, Cordero and Handberg, "The Best Laid Schemes."

About the Contributors Fritz Allhoff, Ph.D., is an Assistant Professor in the Department of Philosophy at Western Michigan University. He has held fellowships at the University of Pittsburgh, Oxford University, and The Australian National University. His primary fields of research are ethical theory, applied ethics, and philosophy of biology/science. His first book, Terrorism, Ticking Time-Bombs and Torture, is due out in 2010 (Chicago). Michael Boylan (Ph.D. University of Chicago) is Professor of Philosophy at Marymount University. He is the author of A Just Society, The Good, The True, and The Beautiful, and The Extinction of Desire along with twenty other books and ninety articles in philosophy and literature. He lectures widely both nationally and internationally. Ned Dobos has published widely on just war theory and the ethics of humanitarian intervention, including papers in The Philosophical Forum, Journal of Military Ethics, Ethical Theory and Moral Practice, and the Journal of Moral Philosophy. He is currently at the Centre for Applied Philosophy and Public Ethics, Charles Sturt University and the Australian National University. Elaine E. Englehardt is a Distinguished Professor of Ethics and Professor of Philosophy at Utah Valley University (UVU). She has taught ethics, philosophy and communication classes at UVU for over thirty years. For the past twenty years, she has written and directed seven multi-year, national grants in ethics and ethics pedagogy. Four large grants are in ethics across the curriculum from the Department of Education; and three are from the National Endowment for the Humanities. She is the author of five books and the co-editor of Teaching Ethics. She has also written numerous articles. She has served in various administrative positions at UVU including Vice President, Dean and Department Chair. She received her PhD from the University of Utah. Dr. Monday Lewis Igbafen is a Lecturer in the Department of Philosophy, Faculty of Arts, Ambrose Alli University, Ekpoma, Edo State, Nigeria. He is presently the Sub-Dean of the Faculty of Arts, Ambrose Alli University, Ekpoma, Nigeria. He holds B.A., M.A. and Ph.D degrees in Philosophy. He also holds LL.B degree (Law) and Diploma in Journalism. Dr. M. L. Igbafen is the author of Basic Issues and Theories in Philosophy of Development (2003) and co-author of Philosophy of Language from An African Perspective (2004). Dr. M. L. Igbafen has published some papers in national and international journals. His academic areas of research and teaching interest are Existentialism, African Philosophy, Philosophy of Language, Comtemporary Issues in Ethics and Socio-political Philosophy.

Jill 0. Jasperson is an Associate Professor of Legal Studies in the School of Business at Utah Valley University. She teaches legal ethics and business law classes. Her expertise includes business law, legal research, identity theft, consumer law, travel, mediation, and conflict resolution. Her research interests include service learning, ethics, Chinese law and intellectual property. Jill has presented locally, nationally, and internationally on various legal subjects. Dr. Sue Korol is Assistant Professor of Psychology at Cape Breton University. She teaches clinical psychology, abnormal psychology, and health psychology. Sue's ©2010. International Journal of Applied Philosophy 23:2. ISSN 0738-098X.

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doctoral work at the University of Canterbury in New Zealand explored the sociocultural determinants of dissociative identity disorder. This early work kindled her passion for investigating the social and cultural factors associated with mental and physical illness. She is currently exploring cross-cultural factors that promote health and longevity. Sue's other interests include cross-cultural psychological coping styles and modern cultural sources of anxiety. D. R. Koukal is Associate Professor of Philosophy and director of the honors program at the University of Detroit Mercy. He has published articles on how the work of various phenomenologists (Husserl, Heidegger, Sartre and MerleauPonty) relates to expression, the body, imagination, media, pedagogy, politics and various technologies. David N. McArthur is Assistant Professor of International Business and Strategy at Utah Valley University's Woodbury School of Business, where he teaches International Business, Strategic Management, and Global Business Strategy. Dr. McArthur received his Ph.D. in International Business and Strategic Management from the University of South Carolina in 1998. He worked for ten years before entering academe in the military, engineering, and business management. He has traveled throughout the world, working, researching, and teaching in seventeen different countries throughout South and East Asia, Eastern and Western Europe, Oceania, and South America. Carol V. A. Quinn is an Assistant Professor of Philosophy at Metropolitan State College of Denver. Her areas of interest include ethics, feminism, and the philosophy of trauma. Eric M. Rovie is currently a Visiting Instructor at Agnes Scott College in Atlanta. He holds graduate degrees in Philosophy from Georgia State University and Washington University in St Louis, and is co-editor of The Morality of War: Classical and Contemporary Readings (Prentice-Hall). He works in normative and applied ethics. Sagar Sanyal recently received his doctorate in political philosophy from the University of Canterbury, New Zealand. As occupation, he researches for a New Zealand penal reform advocacy group. As distraction, he researches economic and political mechanisms of poverty and injustice globally. His current work is on tracing connections between oppressive institutions in the global South and unjust institutions in the global North. Earl Spurgin is Professor of Philosophy at John Carroll University in Cleveland, Ohio, where he specializes in moral philosophy, political philosophy, and business ethics. He is author of numerous journal articles, coauthor of Historical Dictionary of Ethics, and coeditor of Ethics: Contemporary Readings. He earned a Ph.D. in Philosophy at the University of North Carolina at Chapel Hill. Robert Scott Stewart is a Professor of Philosophy at Cape Breton University. His main research interests are in applied philosophy and philosophy in literature. He has published widely including, "Hacking the Blues: The Construction of the Depressed Adolescent," in this journal (15.2, 2001 ). Currently, he is doing research on end-of-life issues and on sexual desire. Together with Sue Korol, he is also editing a collection of essays: Food For Thought: A Multidisciplinary Look at Food in Our World, to be published by Cape Breton University Press.