2022: Chinese Law Prof’s Lament and Encouragement

Tsinghua University Law Professor Lao Dongyan‘s article combines lamentations about the current trends in society and legal practice with a determination to keep up the fight for what seems the ever-more-distant goal of the rule of law in China. Professor Lao’s article was swept off Chinese social media just a few hours after it was posted.

Professor Lao Dongyan’s CV and publications page from the Tsinghua University Law School website, translated into English by DeepL. In Chinese here.

A thank you to Susan Finder, scholar-in-residence at Peking University and author of the Chinese law website Supreme People’s Court Monitor www.supremepeoplescourtmonitor.com Another thank you to another China Law guy — Professor Donald C. Clarke of Georgetown University and of the China Collection blog for his corrections and comments on my translation.

In October 2020 the China Media Project discussed another WeChat public account article by Professor Lao: “On Modern Women: The Challenge of Balancing Career and Family” (关于现代女性：事业与家庭难以平衡)

You can find the Chinese language original of Professor Lao Dongyan’s article copied below and in the China Digital Times 404文库 （404 Archive) of selected articles deleted from PRC social media.

Professor Lao’s article reminds me of Zi Zhongyun, a Tsinghua graduate and former interpreter for Mao Zedong and Zhou Enlai, wrote last year: 2021: What My Beloved Tsinghua Has Become Angers Me

What internet users trying to see Professor Lao Dongyan’s social media post see:
This content cannot be viewed due to violation of regulations.
Complaints have been receivd that this content violates the “Internet User Public Account Information Service Management Regulations”, see details

Facing the Real World 直面真实的世界

by Tsinghua University Law Professor Lao Dongyan 劳东燕

From Professor Lao Dongyan‘s Webo account 劳燕东飞 Lao Yan Flies East

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Tsinghua University Professor Lao Dongyan

I. Introduction

I have been hesitating for a long time, but I still don’t know where to start writing my review of 2021.

The past year has been a peaceful one for me, with less obvious personal vilification and no false hopes that ended in disappointment. My inner depression, however, has not dissipated, and my sense of confusion grows daily.

I remember reading a quote back in 2019 to the effect that 2019 had been the worst year of the past ten years, yet also  the best year of the next ten years. At the time, it was only a derisive comment. Looking back at it now, it was quite insightful.

The epidemic has made it difficult to keep feeling that we live in good, peaceful times —  because chaos is nearly just one step away from everyone. Just a short time ago, another city was sealed off. Who can guarantee that what happened in Wuhan and Xi’an will not happen to us? Even if our city is not sealed off, who knows what awaits us in the face of the economic downturn and the rising tide of unemployment and wage cuts?

In a society full of ‘positive energy’ （zhèng néngliàng 正能量）discourse, the sense of uneasiness spreads like a tidal wave throughout society. The pursuit of freedom is often the subject of ridicule.  People are increasingly indifferent to, or even welcoming, the increasing concentration of power, the stepping up of various kinds of control in the name of security, and the tightened rule over society using the technology of big data tracking.

Interlude: Explanation of the Chinese buzzword zheng nengliang [positive energy], passage translated from Chinese language Wikipedia article. For more see this via Google Translate

In the year 2020, my indignation and emotions are mainly centered on my own experiences.  I try to fully accept the mid-life mentality that has come upon me unexpectedly.  In the end, many of us will enter mid-life sooner or later, both physiologically and psychologically.  During 2021, I seem to have become more aware of the changes around me and I feel forced to go through the processing of forming a new understanding of the things that impinge upon me.

II.   Living in Absurdity

A chain reaction stemming from the epidemic, coupled with changes in the current situation, has led to a plethora of bizarre social phenomena.

Be prepared to be interviewed if you publish a diary documenting your daily life under the epidemic. If you show solidarity with a colleague who was expelled for his classroom speech, you may even face the experience of “being mentally ill”.  Under constant bombardment from social media postings working in relays, you manage to escape from the insane asylum with such difficulty that at year’s end you feel no choice but to leave your hometown. 

In the snowy weather, a woman eight months pregnant sits outside the hospital awaiting a miscarriage, while an old man having a heart attack loses his chance to be treated.  He must wait until he gets a nucleic acid test for COVID-19. A mother comes to pick up her daughter from high school at the start of vacation.  Despite having passed eighteen rounds of nucleic acid testing, she was still prevented from returning home at the quarantine checkpoint.  She wandered the cold winter night streets until dawn.

A township Communist Party Committee secretary in Shandong warned petitioners that there are a hundred ways to “criminalize” them.  The county government head of a certain county in Henan Province was even more aggressive in shouting that those who maliciously return home during the Spring Festival should be isolated and detained.

All of the above, how I wish it was just isolated instances but unfortunately they are not. The township party secretary, who claimed to have a hundred ways to “criminalize” petitioners, must not think what she said was wrong; she only blamed herself for being politically naive and said what they had been doing and for her statement to be accidentally recorded. Indeed, her words reflected reality. Criminal law is full of means to deal with petitioners, including the crime of provocation, extortion and blackmail, as well as the crime of disturbing the working order of state organs.  All these pretexts are commonly used in practice.

The mother, who wandered the streets with her daughter on a cold winter night, cried out at one point: “If every lesson has to cost a life to become a lesson, isn’t that in itself a tragedy? …… you are law enforcement agencies, but shouldn’t you be reasonable and put people first?” [Translator’s Note: “put people first” is a common refrain in the speeches of Communist Party General Secretary Xi Jinping. End note]  Her cries made people weep. However, in this case, who is the evil one and who should be responsible for the outcome? The answer is no. As the staff of the local street committee office responded, there is nothing we can do about it, and it can’t be said that the people at the checkpoint did anything wrong. 

Everything is done in the name of security or social stability.  They claim that it is for the good of the people. The sad thing is that both the hospital security guards and the checkpoint personnel are each doing their duty as if they were merely screws, conscientiously carrying out the rules from above, while at the same time turning a blind eye to the suffering of specific individuals — or even themselves causing the suffering of others.

The evil in human nature, although it seems alarming, is actually not so awful, because anyone with normal reason can make the right judgments. Just like the man in Chongqing who threw a pair of his own children from a high building so that he could remarry, anyone would rebuke the incarnations of evil on this earth. However, the evil caused by the system is highly contagious because it takes on an everyday or even banal face so that people  aren’t even aware of it. Nearly all the catastrophes of the 20th century were caused by institutional evil.  The darkness of human nature compounded by an evil system has repeatedly led to unimaginable tragedies.

In a trance, I heard the sound of the state machine rattling and turning, responsive and orderly, but lacking any warmth, appearing rational and cold. In the eyes of such a state apparatus, the abstract idea of the group reigns supreme, while the concrete individual members have no value at all. In fact, the more the people as a group are elevated, the more insignificant they as individual members of the group become. It is absurd that these two ideas can exist in parallel.

The absurdity does not stop there. Internet and data technology, which developed so rapidly in the name of freedom, are becoming new tools of domination.  They place increasingly heavy shackles on us as members of society. Technology itself is strongly advocated in the name of benefiting society, but in reality it is often used for surveillance and manipulation, including trickery.

For example, from time to time, individuals post information in their friends’ social media circles visible only to themselves, often without the knowledge of the original poster. At the same time, voices outside the mainstream find it increasingly difficult to make themselves heard.  Even if they manage to get past the censorship of the posting process, they are quickly caught by technology. Moreover, under the rule of technology, individuals are harmed by big data systems.  They often don’t know where to turn to seek redress.  Everyone, despite themselves, falls into the hellish pit of anonymity. 

When I was a student, I read the story of the messenger of Khorezm in Wang Xiaobo‘s book and found it incredible. How could there be such an institutional arrangement? Any messenger bringing good news to the king got promoted while those bringing  bad news to the king got fed to the tigers. Would the bad news disappear because the messenger did not deliver it? However, such fables repeatedly play out in reality.

Under the system of social governance we have today, regardless of what level we are talking about, what matters is often not the problem, but whether that problem has drawn the attention of public opinion. Thus, instead of solving the problem, only the person who raised the problem is “solved”.  This becomes the usual tactic in governance. Treating any influential event simply as an opinion issue leads to not only failure to resolve problems but also to growing problems. What started out as a trivial matter ended up being a matter of great importance.

What is even more absurd about this is that many of those put in chains are not only not angry at losing their freedoms but are quite comfortable with it. They are like frogs being boiled in warm water. And, even though they are among the ruled, they are particularly good at thinking about what benefits their rulers. Everything is for the greater good.  Restricting freedom is not an issue.  Sacrificing the rights of others is not an issue. It is in just this kind of social atmosphere that ordinary individuals are forced to bear more and more social stigma in order to defend their own legitimate rights and interests.

At the same time, more and more people display undisguised callousness towards the misfortunes of others. They even try to find fault with those who stand up and demand that a problem be addressed. Such subconscious words and actions reflect a rather subtle inner psychology: those who suffer misfortune are entirely (or at least partially) to blame.  If I am alright, who cares?  Just as long as I am safe and misfortune does not befall me.

One could argue that it is the expectation that the world is dangerous and unstable that breeds such distorted assumptions that people make. When society as a whole falls into such assumptions, the proliferation of the “victim is to blame” theory becomes easy to understand. Only pure and innocent victims are considered worthy of sympathy.  Since there are so few such victims, people can naturally and justifiably refuse to offer their sympathy. Basic compassion and empathy are becoming ever more scarce and even becoming luxuries in Chinese society. 

III.  Busy Amidst the Confusion

When I reached middle age, I suddenly found that I needed to reacquaint myself with the world.  While reflecting on whether or not I was being a bit pretentious, I felt confused about where I was. Faced with the absurd, I feel confused and powerless.   Even though I have passed the age at which I should no longer be confused [Translator’s note: age 40, according to Confucius], I still feel ever more confused and lost.

I haven’t posted anything new on my WeChat public account for a  year. During this period, I have not written or pushed any articles, except for a new book announcement that came out of a publisher’s proposal. Occasionally, when friends or students ask me about that project, I usually push back, saying that I have been too busy.  At the bottom of my heart, though, I’m afraid that the main reason I stopped is because of confusion.  

My confusion manifests itself first in that where any social issue is concerned, I no longer have any idea where the line for speech is.  And so I don’t know which social issues I may write about. When the 2021 Nobel Peace Prize was announced and awarded to Filipino journalist Maria Ressa and Dmitry Muratov, editor-in-chief of Russian newspaper Novaya Gazeta, it was reported in China that the prize was award “for their contributions” while in the foreign media it was reported that the prize was “for their contribution to the defense of ZY of speech” [Translator’s Note: ZY 自由 ziyou “freedom”. ZY used instead of freedom perhaps to elude censorship software scans. End note]. I don’t know when ZY of speech became a taboo word.

My confusion also manifests itself in that I don’t know what the point of this kind of public writing is, other than to get myself into trouble. Today, when public intellectuals are generally stigmatized, neither the public nor the government, including youth today, welcome intellectuals who point out social problems. I saw a video of a young girl sarcastically ridiculing public intellectuals, naming public intellectuals who were once respected by our own generation when we were young. After watching it, I felt a chill in my heart.  I could not help but think of Xia Yu, a character in Lu Xun’s short story “Medicine” 《药》 yao. What is the significance of Xia Yu’s sacrifice? Probably only significant for making people out to be merely bloody steamed buns.  The people for whom he gave his life treated him that way.

Actually this is not just about writing articles on my public WeChat account.  I feel this about my academic writing as well.  I am beginning to feel that it is all meaningless. Looking back at my own legal practice in recent years, I found that apart from providing myself with a career and income, my original intention [Translator’s Note: Not repeating General Secretary Xi Jinping’s exact words – 不忘初心 Bù wàng chūxīn but “not forgetting one’s original intention” when one first joined the Chinese Communist Party is a common refrain in Xi’s speeches and a theme of a Party member indoctrination. End note] to promote the rule of law in China has turned out to be pure wishful thinking. The study of legal theory has become more and more like the self-indulgence of academics.  That these studies appear to be flourishing  cannot cover up the emptiness and cynicism that lie within. In today’s increasingly inward-looking academic world, the significance of writing papers often lies only in their publication. In the final analysis, today, when the theoretical vision of the rule of law and actual practice of the rule of law are increasingly running in opposite directions, one should not expect theory to have much influence on practice.

Even more confusing is that this year, I tried to restrain myself and follow the rules, but in the end I found that many times I was forced to a point from which I could not bear to retreat.  Maybe I am not patient enough. There are many issues, but when it comes to matters about which one should be courageous and upright,  I feel uncertain. I wonder how I can endure. Endless patience and making concessions on matters of principle eventually makes people despise themselves. Some who live a life thus unanchored could well be called  depraved. On the other hand, if you do not want to endure this, you will often be angry and be considered a troublemaker, and inevitably find yourself utterly isolated as you are attacked from all sides. 

I am also confused about the meaningfulness of hard work.  I have always believed that the harder you work, the luckier you get, but suddenly I’m at a loss as to whether hard work is meaningful anymore.  Over the years, effort has been devalued like never before. It is just like severe inflation. This so-called “devaluation” not only means that more efforts do not bring higher income, but also means that as the channels for advancement in society become narrower, even desperate efforts won’t matter.  “Devaluation” also means that it is difficult to address social problems in a way that yields real and meaningful improvements.

For example, I, like my colleagues in the legal profession and the media, have worked hard over the past two years on the issue of facial recognition. Two years ago, when the Beijing subway was preparing to promote face recognition, it was shelved due to public opposition.  Two years later, face recognition has been quietly implemented in five subway stations in Beijing and is expected to be fully rolled out soon. Not only that, in communities, in shopping malls, schools and other kinds of public venues, facial recognition technology is becoming more widespread under the banner of epidemic prevention and control.

If hard work is meaningless, then why should we keep working hard? However, how can anything get done if we don’t try? I’m afraid it will only make things worse. So, we are just stuck in being busy in the midst of our confusion and being confused in the midst of our business.  Confronting as we are today the precipitous devaluation of our efforts, that kind of confusion has become fairly common. Now wonder people are “involution” 内卷 neijuan and “lying flat“躺平 tangping.  Those have become the key words defining our age.

The original meaning of “involution” is unnecessary complication or lack of progress of self-repetition. For the devaluation of effort, it may be more accurate to use the term “Malthusian trap” to describe it. However, the literal meaning of “involution” is straightforward and more graphic: since there is no way to exert effort externally, one gets all wrapped up in excessive internal competition. When it is clear that one’s best efforts can have only the most minimal effects, “lying flat” has become a wise position in this world. In their refusal to accept hyper-stimulants [Translator’s note: literally injecting chicken blood. Drinking insects, fish or drinking chicken blood is motivation punishment sometimes used on sales staff in China. See 2019 article criticizing this practice. End note] perhaps the younger generation is expressing negative resistance in their own way, in order to partially dissipate the discipline that the external environment is imposing on individuals.

IV.  Reflections as I Adapt

Since my youth, I have believed that rule of law in China would be accomplished in my own lifetime. However, this blind optimism has been battered by reality.  I see that the rule of law has increasingly turned into the rule by punishment, and that Legalism is making a comeback. I sometimes feel sad about this. I am not a pessimistic person by nature, but I still have a hard time taking in fully the frustrations and disappointments that the outside world lays on me.  I would love to be able to peddle “positive energy”, but in an era when even returning home for the Spring Festival is branded as a malicious act, that is beyond me. In an era when programmed political discourse is flying all around, one should, as a scholar, at least maintain a minimum of sincerity. Simply failing to address these realities would be both hypocritical and opportunistic. 

I have always believed that it is more important to recognize and face reality than to give rise to false hopes. Just as I did for my daughter’s education, I choose to let her see the world as it really is, without deliberately covering up its ugliness and cruelty and without presenting her, after retouching, a beautiful new world. When she was a seventh grader, I suggested that she read Elena Ferrante’s “Neapolitan Novels” and let her think for herself about gender equality and women’s fates. Not long ago she offered to watch Schindler’s List, and I agreed to watch it with her and to discuss with her afterwards why such a film could be at once so powerful and so shocking.

Although my daughter’s grades are mediocre and may seem unimpressive to others, in my eyes, she has her own outstanding qualities. Her appreciation and comprehension of good film and television is far beyond other children her age.  Her judgment of some political and social issues is better than that of many empty-headed adults.

Facing reality and accepting the cruel side of the world is a process that she must undergo in order to mature, otherwise, she would only remain a young child with only a clouded understanding of the world.  As the saying goes, “Anyone who can’t hear  harsh truths is generally still a baby. Half of human maturity is the pursuit of good things and the other half the acceptance of harsh truths.”

I have never thought that the so-called “positive energy” leaves all kinds of social problems aside, never to allow people to discuss and to know about them. If “positive energy” is obtained by concealing things and lacking even the courage to face them, well that kind of positive energy just demonstrates how weak a response burying your head in the sand really is.

When you face reality head-on, it’s hard to keep yourself from becoming cynical or simply going with the flow.  As the external environment changes, individuals are bound to face the question of how to adjust and adapt to it. If one sticks to one’s original self, one will suffer because one does not fit in with the external environment; if, on the other hand, one chooses to become a chameleon, one will eventually lose oneself and fall into emptiness. How to balance between the two ends of the spectrum, how to adapt to the changes in the external environment while maintaining an independent self, may be a problem that many people are facing. This also holds true for me.

As I grew older, I finally realized that for any individual, luck is the most important thing. Even the fiercest person cannot escape their fate. The Chinese people like to talk about fate being determined by heaven.  Maybe this has something to do with it.  In any specific instance, however, an individual will still have some margin for making their own personal choice.

This so-called adaptation is certainly not about warping and transforming the self in conformity to the external environment. Total conformity merely creates a false self. Like the law, we as individuals must not only adapt to changes in the external environment, but also retain the ability to evolve and renew ourselves through choices that we make for ourselves. This is what Niklas Luhmann‘s systems theory teaches us.

Accordingly, while being sensitive to changes in the external environment and adjusting our perceptions, we need to strive to cultivate our inner life force in order to develop a stronger self. A strong, inner vitality self will be better able to resolve the shocks brought by the external environment, while rejecting cynicism and speculation.

Therefore, when I learned that more than 70% of the graduates from the top two universities in China in recent years have chosen civil service and teaching positions within the system, I felt a bit sorry even as I understood why they made that choice. I understand because I see how the young people around me face huge pressure of survival and are generally highly anxious.  I feel sorry because choosing a position within the system means choosing stability.  A stable position usually has a low ceiling.  Where there is less risk, the opportunities for gain are naturally also less.

I especially hope that no matter what age you are, you will not give up on your dreams. Do not lower your expectations because of the long delay due to the epidemic and the economic downturn. We need to make adjustments and adapt to the external environment, but we must not give up our dreams and lower our expectations. One should not let the epidemic rob us of our dreams.

As one of my students told me, when criticized by people for high ambitions outrunning one’s ability, why should one throttle back on one’s ambitions to one’s capabilities rather than raise one’s capabilities to the heights of one’s ambitions?  Therefore, when we get this kind of criticism we are perhaps fortunate in having “looking to better things’ ‘, which is always better than looking low and acting meanly. In the current situation, all that can be done is to try to stay calm and be patient, realizing that “it will take a decade to make a breakthrough” while as hide our light while building up our strength [Translator’s Note: using here Deng Xiaping’s famous formulation on Chinese foreign policy taoguang yanghui. End note.]  I expect nothing less from myself.

Law is not only a functional system that needs to adapt to the external social environment, but it is also a system of meaning, which carries the values and moral bottom line of the times. Therefore, when doing legal research, not only do we need to look at it from the perspective of social theory but also the perspective of political philosophy — because the latter is concerned with the dimension of “goodness”. When legislators keep proclaiming that the people should believe in the law, it is obvious that the law here should not mean law in the Legalist sense.

There are also some adjustments to be made in the way people conduct themselves. In the past, my subconscious choice when I encountered malicious attacks would be to back off and keep my distance.  Perhaps this is because I am influenced by the view that “evil is its own reward”. Reflecting on this, I found that many people are just like me — they always hope that there will be other evil people around who will afflict the evil one.  It is just this philosophy  that in Chinese society has often made the good and honest suffer while the mean and the wicked so often take advantage. 

It can be said that many people, including myself, choose to just bear it and retreat, thereby enabling evil people to continue to do evil with impunity.  In a sense, we are responsible by our passive inaction for the deterioration of our environment since we choose to tolerate and beat a retreat in the face of it.  This is not the way a good person should behave. Instead, it is only a manifestation of cynicism and cowardice. How can we repay virtue with virtue? Without lowering yourself, it is time to consider a firm counterattack.

I read a quote on Weibo social media: “If people are attracted to you, they will be attracted by your boldness and not by your pretense of humility and of pleasing others.”  That is why I am sharing this with you who may be lost and uncertain at this moment but I also write it for myself.

“If you choose to use your status and influence to raise your voice on behalf of those who have no voice; if you choose to identify not only with the powerful, but with the powerless; if you retain the ability to imagine yourself into the lives of those who do not have your advantages, then it will not only be your proud families who celebrate your existence, but thousands and millions of people whose reality you have helped change.” This is a quote from J.K. Rowling’s commencement address at Harvard University that I particularly like. In my opinion, this is the real “positive energy”. May you and I have such “positive energy”.

January 29th, 2022

Completed in Tsinghua Garden

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Chinese text below and on the Internet Archive at 直面真实的世界

直面真实的世界

清华大学法学院劳东燕教授的微博

一、引子

踌躇许久，仍不知道2021年的总结，要从哪里写起。

过去的一年于我而言，算是地过得平静，少了明眼可见的中伤，也不复求而不得的失望。然而，内心的郁结之处并未消散，同时迷茫之感与日俱增。

记得2019年曾读到一句话，大意是，2019年是过去十年中最糟糕的一年，同时也是未来十年里最美好的一年。当时只道是揶揄，如今回看，倒是颇有些洞察先机的意味。

疫情之下，岁月静好的想象终于难以维续，因为兵荒马乱的日子，距离每个人都几乎只有一步之遥。就在不久之前，又一个城市经历了围城之困。谁能保证，武汉与西安所经历的一切，就不会降临到我们自己的身上？即便没有围城之困，在经济下行和失业降薪的风潮之下，谁又知道前方会有什么遭遇在等着我们？

在一个到处充斥正能量话语的社会，不安感却像潮水一样，迅速地在全社会蔓延。在不安感的支配下，对自由的追求时常成为被讥讽的对象，而人们对于权力的渐趋集中，对于以安全为名的各式管控，对于以大数据追踪为基础的技术统治，日益表现出无所谓甚至是欢迎的态度。

2020年的我，愤慨与感喟都主要围绕自身的遭遇，试着全面接纳在不期然中降临的中年心态；终究，我们中的很多人，都或迟或早地要步入中年，从生理到心理。2021年的我，似乎更多觉察到的是周遭的变化，对于周遭世界与很多事物，都被迫经历重新认识的过程。

二、在荒谬中生活

疫情的连锁反应，加上时局的变动，导致光怪陆离的社会现象此起彼伏。

发表一份记录疫情下日常生活之种种的日记，得做好被约谈的准备。声援一下因课堂言论被开除的同行，甚至要面临“被精神病”的遭遇；在自媒体的接力呼吁之下，好不容易从精神病院出来，最终却只能在年关来临之际，选择从此别离家乡。

冰天雪地里，怀胎八月的孕妇在医院门外坐等流产，而突发心脏病的老人，以必须核酸检测为由，在无情的等待中失去救治的机会。一位妈妈接到中学放假的女儿，在已通过十八轮核酸检测的情况下，仍被卡点拦着不让回家，在冬日的寒夜彷徨街头直到天明。

山东的某位镇委书记告诫上访人员，有一百种手段“刑事”对方；河南的某位县长更是杀气腾腾地喊话，春节期间要对恶意返乡者先隔离再拘留。

以上种种，多么希望只是个例，可惜不是。那位声称有一百种手段“刑事”上访人员的镇委书记，想必不会认为自己说的内容有错，而只会怪自己政治上幼稚，把不能说而一直在做的事说出了口，还不小心被录了音。的确，她道出的是现实。刑法中多的是手段来对付上访人员，包括寻衅滋事罪、敲诈勒索罪以及扰乱国家机关工作秩序罪等，都是实务中常用的罪名。

那位在冬日寒夜与女儿一起彷徨街头的妈妈，曾这样哭诉：“如果每一个教训都要付出生命的代价，才能成为教训的时候，这样是不是太惨痛了？……你们是执法部门，但是天理人情呀，我们是不是把人放在了第一位？” 她的哭诉让人潸然泪下。然而，在这起事件中，究竟谁是为恶者，谁需要对结果负责呢？答案是没有。就像当地街道办的工作人员回应的那样，我们无能为力，这个事情也不能说卡点人员做得不对。

一切都是以安全或稳定为名，宣称是为了民众的福祉。可悲的是，无论是医院的保安还是卡点的人员，每个人都在尽忠职守，犹如螺丝钉那样，认真贯彻来自上面的规定，同时却对具体个人的苦难视若无睹，甚至本身就是他人苦难的肇因。

单纯人性的恶，尽管看起来触目惊心，其实并不那么可怕，因为但凡有正常理性的人，都能做出正确的判断。就像重庆那位男子为实现再婚目的，不惜将一对亲生儿女从高楼抛下，谁都会发出恶魔在人间的斥责。然而，制度造成的恶，因其以日常化甚至是平庸的面目出现，导致人们普遍地不加提防，所以具有高度的传染性。纵观20世纪的浩劫，几乎都是由制度性的恶所造成，恶劣的制度加持人性的黑暗，一再地酿成难以想象的悲剧。

在恍惚中，我听到国家机器在那里嘎吱嘎吱转动的声音，反应敏捷，运作有序，却缺乏任何温情，显得理性而冷酷。在这样的国家机器眼中，抽象的群体至高无上，而具体的成员毫无价值。事实上，作为群体的民众被抬举得越高，作为个体的成员就愈发地无足轻重。两种理念竟能并行不悖地存在，世界就是如此的荒谬。

荒谬的不止于此。当初以自由为名而得以迅猛发展的网络与数据技术，正在成为新的统治工具，给作为社会成员的我们套上日益沉重的枷锁。技术本身以造福于社会为名而被大力倡导，但现实中它们经常被用于监控与操纵，包括进行愚弄。

就比如，个人在朋友圈发布的信息，不时会遇到只有自己可见的情况，而发布者往往还并不知情。同时，与主流不同的声音越来越难以发出，即便侥幸通过发布环节的审查，也会被技术迅速地捕捉。此外，在技术的统治之下，个人被大数据系统所误伤，也经常不知道找谁理论，每个人都身不由己地陷入匿名的魔阵之中。

学生时代在王小波的书中读到花剌子模国信使的故事，觉得匪夷所思。怎么会有这样的制度安排呢？凡是给国王带来好消息的信使，就会得到提升，给国王带来坏消息的人，则会被送去喂老虎。坏消息难道会因为信使的不传达而消失吗？然而，此种类似于寓言的故事，在现实中一再地上演。

当下的社会治理中，不管什么层级，重要的往往不是出现了相应的问题，而是相应问题是否成为了舆情事件。于是乎，不解决问题，而只解决提出问题的人，成为治理中的惯常手段。把任何有影响力的事件都单纯地当作舆情问题，导致问题不仅没有解决，而且越来越多。本来微不足道的小事，最后变成天大的事。

更为荒谬的是，很多被套上枷锁的人，不仅不愤怒于自由的丧失，还颇为怡然自得，就像温水中被煮的青蛙。并且，虽然自己也是被统治者，却特别善于为统治者着想。一切都是为了大局嘛，限制自由算什么，牺牲他人的权益更是不值一提。也正是在这样的社会氛围下，普通个人为维护自身的正当权益，被迫承担越来越多的污名。

与此同时，越来越多的人，对于他人的不幸表现出不加掩饰的冷酷，甚至想方设法要从当事人的身上找出错处来。这种下意识的言行，折射出一种颇为微妙的内在心理：那些遭遇不幸的人们，完全（或至少部分）是由于自身的过错所导致，而我没有这样的问题，所以我是安全的，不幸不至于降临到我的身上。

可以说，正是真实世界中安全感与稳定预期的严重匮乏，酿生了此类扭曲的自我臆想。当全社会陷入这样的臆想，被害人有错论的泛滥成灾，也就变得容易理解。只有纯洁无辜的被害人才被认为值得同情，而这样的被害人少之又少，人们自然可以心安理得地拒绝施予同情。基本的同情心与同理心，在这个社会，变得越来越稀缺，日渐地成为奢侈品。

三、在迷茫中忙碌

人到中年，突然发现需要重新认识这个世界，在反思自己是否有些矫情的同时，我有一种不知身在何处的惘然。直面荒谬，又时常无能为力。所以，尽管早过了不惑之年，反而愈加地困惑与迷茫。

公众号停更一年，期间除因出版社的提议而发布过新书的讯息外，没有专门写过或推送过任何文章。偶尔有朋友或学生问起，多是以忙的理由来搪塞。但从内心来说，停更的主要原因恐怕还是迷茫。

迷茫首先表现在，但凡涉及社会性的问题，我已经完全不知道，言说的边界究竟在哪里，也因此不知道自己可以写些什么。当2021年的诺贝尔和平奖揭晓，授予菲律宾记者玛丽亚·蕾莎与俄罗斯《新报》总编辑德米特里·穆拉托夫时，国内报道的是“以表彰二人做出的贡献“，而外媒的报道则是”以表彰二人为捍卫言论ZY做出的贡献“。不知从何时起，言论ZY竟成为讳莫如深的词汇。

迷茫还表现在，除了可能给自己带来麻烦之外，我不知道这样的公共写作有什么意义。在公知被普遍污名化的今天，无论是民众还是政府，包括这个时代的青年，都不怎么欢迎指摘社会问题的知识分子。我看过一段视频，是一位年轻女孩挖苦讥讽公知的，被她点名道姓的那些人物，都曾是我们这一代年轻时颇为尊敬的知识界人物。看完之后，心里顿觉一阵寒意，不由地想起鲁迅先生的小说《药》中的人物夏瑜。夏瑜的牺牲有什么意义呢？大概只有作为人血馒头的意义。他为之付出生命的民众，就是那样对待他的。

实际上，不止是公号文章的写作，甚至于对学术写作，我也开始陷于意义的迷茫之中。观察近些年来的法律实践，发现学术性写作除了为个人的安身立命提供些许本钱，原以为的推进中国法治的意义，纯属一厢情愿。法学理论的研究，越来越像学界中人的自娱自乐，表面的繁盛掩盖不了内里的空虚与犬儒。在学术日益内卷化的今天，论文写作的意义往往只在于发表。说到底，在理论对法治的设想与实务对法制的践行日益背道而驰的今天，也不要奢望理论能对实务产生多少影响。

更为迷茫的是，在这一年中，我试着让自己收敛与合规，但终究发现，很多时候都会被逼到忍无可忍退无可退的地步。也许，是我的忍耐力不够吧。很多事情，但凡还有一点做人的血性，我都疑惑，怎么能忍得下来。无止境的忍耐，无原则的退让，最终会让自己都鄙视自己，那样苟且地活着，真是枉称为人。反之，不想忍耐的话，就要经常处于愤怒的状态，还可能被认为是麻烦人物，免不了陷入四面楚歌的境地。

让人迷茫的还有，关于努力的意义。一直笃信越努力越幸运的我，突然间就陷入迷茫之中，不知道努力的意义何在。这些年来，努力前所未有地贬值，就像遭遇了严重的通货膨胀。所谓的“贬值”，不只意味着更多的努力换不来更高的收入，也意味着随着阶层提升渠道的收紧，拼命的努力也不见得能改变自身的命运；“贬值”还意味着，对很多社会问题所作的努力，难以获得真正有意义的改善。

就比如，包括我本人在内的法界同行与媒体同仁，这两年在人脸识别的问题上做了不少的努力。两年之前北京地铁在准备推广人脸识别时，因遭遇舆论的反对而搁置；两年之后北京已有五个地铁站悄然推行人脸识别，预计很快就将全面铺开。不止如此，小区、商场、学校等各类公共场合，借疫情防控的东风，人脸识别技术的适用都有愈演愈烈之势。

如果所做的努力没有意义，那我们还要继续选择努力吗？然而，不努力又能如何？恐怕只会使处境更为糟糕。所以，就只能在迷茫中忙碌，在忙碌中迷茫。在努力遭遇断崖式贬值的今天，这样的迷茫具有相当的普遍性，也无怪乎“内卷”与“躺平”，会成为具有时代标志性的关键词。

“内卷”的本意是不必要的复杂化或缺乏进步的自我重复，对于努力的贬值现象，用“马尔萨斯陷阱”来形容可能更为准确。不过，“内卷”的字面意思直白易懂，也比较形象：既然没法对外使力，那就只能卷入内部的过度竞争。在努力的作用微乎其微的情况下，“躺平”也相应成为一种不失明智的处世立场。不再接受打鸡血式的激励，也许是年轻一代在用自己的方式，来表达消极的抗争，以部分地消解外在环境对个体的规训吧。

四、在适应中反省

从年轻时候开始，我便认为法治在中国的实现，在自己的有生之年只是时间的问题。然而，这种盲目的乐观遭到了现实的痛殴。眼见着依法治国日益地变成以刑治国，法家主义的法制卷土重来，有时会有悲从中来之感。我不算悲观的人，但仍难以完全消化外部环境的冲击带来的沮丧与失望。我很想兜售正能量，但在春节返乡也要被冠以恶意的年代，实在是说不出口。在程式化的政治话语漫天飞舞的时代，作为学者，至少应该保持起码的真诚。一味地回避现实中的种种，终不免沦为虚伪与投机。

我始终认为，与给予虚幻的希望相比，认清与直面现实是第一位的。就像在对女儿的教育上，我选择让她看到世界的真实面目，不会刻意掩饰其中的丑陋与残酷，给她一个修饰过后的美丽新世界。作为初一的学生，我推荐她看《那不勒斯四部曲》，让她自己去思考女性命运与两性平等的话题。前不久她主动提出要看《辛德勒的名单》，我也表示同意，陪她一起观看，并且在看完后与她探讨，为什么这样的影片会有震撼人心的力量。

所以，我的女儿虽然成绩平平，在他人看来可能毫不出彩，但在我眼里，她自有她的出色之处。她对优秀影视作品的鉴赏力与领悟力，远超同龄的孩子，对于一些政治与社会问题的判断，也胜过许多脑袋空空的成年人。

直面现实，接受世界残酷的一面，是走向成熟必须要经历的过程，不然，心理上就永远只处于蒙昧的幼童时期。就像有句话说的，“凡是听不得残酷真相的人，一般都活在婴儿阶段。人的成熟，一半是对美好事物的追求，一半是对残酷真相的接纳。”

我始终不认为，将各种社会问题搁在那里，不让人说破，不让大家知晓，便是所谓的正能量。如果正能量要依靠掩饰而获得，连直面的勇气都没有，这样的正能量，未免透着一股掩耳盗铃式的虚弱。

只是，在直面现实的同时，如何让自己不至于变得愤世嫉俗或是随波逐流，是颇费思量的事。在外部环境变动的同时，对个人来说，势必面临如何调整与适应的命题。完全坚守原先的自我，会因为与外部环境格格不入而遭受痛苦；反过来，选择成为变色龙，也终究会由于迷失自我而陷于空虚。在两端之间怎样平衡，如何在适应外部环境变动的同时保持独立的自我，可能是很多人正面临的困扰。我也是如此。

年岁渐长，终究发现，对任何个人来说，时运都是第一位的。再生猛的人，也强不过时运，中国人喜欢讲天命，或许与此有关。但是，特定的时运之下，作为个人仍会有一些选择的空间。

所谓的适应，肯定不是通过一味地扭曲与改变自身而顺从于外部环境。单方面的顺从，只会造就苟且的自我。就像法律一样，作为个人，我们不仅必须适应外部环境的变动，而且需要具备自我演进的能力，通过以我为主的选择不断地实现自我更新。这正是卢曼系统论所给予的启发。

相应地，在对外部环境的变动保持敏感并调整认知的同时，需要努力培养内在的生命力，以形成更为强大的自我。一个强健的、具有内在生命力的自我，会更有能力化约外部环境带来的冲击，同时拒绝犬儒与投机。

所以，在得知近几年国内位列TOP2的两所大学，70%以上的毕业生都选择公务员与教师等体制内职位时，我在表示理解的同时，也感到有些惋惜。表示理解是因为，我知道身边的这些年轻人面临巨大的生存压力，普遍都高度地焦虑；感到惋惜则是源于，选择体制内的职位意味着选择了安稳，而安稳的职位通常天花板很低，风险变小的同时自然收益也少。

我特别期望，无论身处哪个年龄层，都不要因为疫情的久拖不决与经济的低迷下滑，就放弃自己的梦想，降低自我的期待。我们需要做出调整，也需要适应外部环境，但不是通过放弃梦想与降低期待来实现。不应该让疫情偷走自己的梦想。

就像我的一个学生对我说的，在遇到眼高手低的批评时，为什么要让高处的眼睛去就低处的双手，而不是反过来努力抬高双手的位置呢？因此，在遇到眼高手低的批评时，或许值得庆幸的是，自己至少还有“眼高”的优势，比眼低手低总是要更胜一筹。就目前的情况来说，所能做的，就是努力让自己的内心安静下来，以一种“面壁十年图破壁”的耐心，在韬光养晦的同时积蓄实力。我对自己的期望也是如此。

回看过往的研究，我关注的命题一直是，如何使包括刑法在内的法律系统适应社会外部环境的变化。反思这种研究立场，不足之处在于只关注“社会秩序如何可能”的问题，其实真正需要关注的应当是“良善的社会秩序如何可能”。基于此，实有必要对原先的研究立场做出调整。

法律不只是一个功能系统，需要不断适应外部的社会环境；同时它也是一个意义系统，承载着时代的价值观与道德底线。因此，在做法学研究时，不仅需要有社会理论的视野，政治哲学的视角也不可或缺，因为后者关注的恰恰是“良善”的维度。当法律人不断地宣称民众应当信仰法律时，其间的法律显然不应当是法家主义意义上的法律。

在为人处世上，也有一些需要调整的地方。遇到不怀好意的攻讦，以往的我，下意识的选择会是忍让退却与保持距离。可能多少是受了“恶人自我恶人磨”的处世哲学的影响。反思这样的做法会发现，很多人都是像我这么想的，总希望有别的恶人去施行惩治。也正是这样的处世哲学，导致在中国社会吃亏的经常是君子与老实人，而小人与恶人们往往占尽便宜。

可以说，正是包括我在内的很多人选择忍让退却，才让恶人能肆无忌惮地继续为恶。在某种意义上，对于周遭环境的日渐恶化，选择忍让退却的我们，其实都负有消极不作为的责任。这并非君子之风，而是犬儒懦弱的表现。以德报怨，那何以报德呢？在不拉低自己的前提下，是应该考虑坚决反击的。

在微博上读到一句话：“你真正吸引的人，永远欣赏的是你骄傲的样子，而不是你故作谦卑和故作讨喜的样子。”谨将这话送给此刻可能迷茫彷徨的你，也送给我自己。

“如果你选择利用自己的地位和影响力，去为那些没有发言权的人发声；如果你选择不仅与强者为伍，还会同情帮扶弱者；如果你时刻设身处地为那些没有像你这般地位的人着想，那么你的存在，将不仅是你家人的骄傲，更是无数因为你的帮助而改变命运的成千上万人的骄傲。”这是J.K.罗琳在哈佛大学毕业典礼致辞中的一段话，我特别喜欢。在我看来，这才是真正的正能量。愿你我都能拥有这样的正能量。

2022年1月29日
完稿于清华园