Cohen of China

Jerome A. Cohen (Photo: Joan Lebold Cohen)
A visit with a pioneering scholar-advocate

Editor’s Note: This is an expanded version of a piece that appeared in the April 30, 2018, issue of National Review.

‘As they say in the Ministry of Public Security — shoot.” These are the words of Jerry Cohen as we begin our interview. The MPS is essentially the Chinese KGB. Jerome A. Cohen is one of the foremost China scholars in America. Specifically, he is an expert on Chinese law. He has been studying China, and dealing with China, for almost 60 years. Some of his admirers refer to him as “the Great Helmsman,” borrowing one of Mao’s titles.

I’m reminded of Bernard Lewis, the venerable historian of the Middle East. Some of his students refer to him as “the Imam.”

More than an academic, Cohen is a friend of Chinese dissidents, democrats, and political prisoners. One of the many he has helped is Chen Guangcheng, known as “the blind barefoot lawyer.”

While best known for his work on China, Cohen has had an impact on American relations with East Asia in general. For instance, he established the East Asian Legal Studies program at Harvard. And the U.S.-Asia Law Institute at New York University. The government of Japan has just conferred on Cohen its Order of the Rising Sun. For those keeping score, the specific degree is “gold rays with neck ribbon.”

So, how did a kid from New Jersey get mixed up in China and the rest of that region? This is an interesting story, which we will get to in a moment.

Cohen was born in 1930. His dad, Philip, was the city attorney in Linden. Philip grew up poor, the son of immigrants, and “he valued what America had to offer,” says Jerry. Philip Cohen was the head of Jewish War Veterans of New Jersey. (He had enlisted in World War I.)

Jerry went to Yale College, majoring in international relations. His senior thesis was on the Yalta agreement of 1945. The thesis was supervised by Samuel Flagg Bemis, one of the original diplomatic historians.

After a Fulbright in France, Cohen went to Yale Law School. He studied under Fritz Kessler, who had fled Germany (his wife was Jewish). Another professor was Myres S. McDougal, renowned for international law.

While in college, Jerry met Joan, the sister of another Yalie. Joan was going to Smith. Theirs was “a very conventional Yale-Smith romance,” Jerry quips. They married after her graduation, while he was a student at the law school. They have three sons and seven grandchildren.

Jerry clerked on the Supreme Court — twice. He clerked for Earl Warren, the chief justice, and Felix Frankfurter, an associate justice. Jerry Cohen was the first person ever to serve full clerkships with two members of the Court.

His two justices could not have been more different, Cohen says: Warren the politician — a former governor of California — and Frankfurter the professor. But he liked and admired them both.

Cohen tells me something interesting about Frankfurter — and Warren, for that matter. As you know, the Supreme Court decided Brown v. Board of Education, the landmark desegregation case, in 1954 (May). Chief Justice Fred Vinson died in 1953 (September). The new chief, Warren, was able to pull the Court together in Brown, delivering a unanimous decision. This unanimity was important where national acceptance was concerned.

Now, Frankfurter was not a religious man, far from it. But he said that the death of Vinson, which paved the way for Warren, was evidence of divine intervention — the only he had ever seen.

Cohen decided on an academic career. He was courted by UCLA, which threw a party for him. The purpose was to introduce Cohen to faculty, and vice versa. In the course of conversation, the dean of the law school said, “You know? Somebody should study the law of Red China.” Young Cohen found himself saying, “That’s the zaniest idea I’ve ever heard.”

In any event, he signed on with the law school at Berkeley. The year was 1959.

The incoming dean of the school, Frank Newman, had been a law-school classmate of Dean Rusk. Rusk was then president of the Rockefeller Foundation. He had been assistant secretary of state for Far Eastern affairs. He would soon be secretary of state (under Kennedy, and then Johnson). Newman’s idea was to establish a chair in African law, with the Rockefeller Foundation’s help. Rusk said, “How about Chinese law?”

Newman said to Cohen, “You’re a young fellow, and I can tell you what to do. Find me somebody for this offer, so the law school doesn’t lose the chance. Find me an East German who has studied law in China. Find me a grad student in the social sciences who knows Chinese and is willing to study law. Find me a Chinese graduate of an American law school who can meet faculty standards. Find me somebody.”

Cohen found no takers. But, strangely enough, he started to be interested in the challenge himself. Some of his colleagues, hearing about this, thought he was going through some sort of nervous breakdown. The outgoing dean, William Lloyd Prosser, told him, “Don’t throw away your career on China.” Frankfurter said much the same thing, though he later came around. The incoming dean, Newman, was fully supportive — but even he asked, “What will you talk about at cocktail parties?” No one was interested in China.

One of the things that attracted Cohen was the chance to be a pioneer — to stake a claim, and make a name, in uncharted territory. That’s what he did. At 9 in the morning on August 15, 1960 — a month and a half after his 30th birthday — he took his first Chinese lesson. He likes to cite a maxim of Confucius: “Establish yourself at 30.”

Furthermore, the date — 8/15/60 — has some significance to him. That was 15 years after the Japanese surrender. And this event had marked the beginning of a new and rising Asia.

In 1964, Cohen decamped from Berkeley to Harvard. In 1972, he took his first trip to China. On that occasion, he and John K. Fairbank, the father of Chinese studies in America, had a four-hour meeting with Zhou Enlai, Mao’s No. 2. “The most charming dinner host I’ve ever had,” says Cohen.

Also present was Harrison Salisbury, the famed correspondent of the New York Times. He quietly took notes.

For the first two hours, Fairbank and Cohen tried to persuade Zhou to send Chinese students to Harvard. Zhou wanted to wait until the establishment of diplomatic relations between China and the U.S. (That would not come until 1979.) After two hours of this, there was a bathroom break. As Fairbank and Cohen were standing at their respective urinals, Fairbank quipped to Cohen, “The missionary spirit dies hard.”

Though Cohen has often been at cross-purposes with the Chinese dictatorship, they have never denied him a visa. Chiang Kai-shek, the dictator on Taiwan, once denied him a visa. (The generalissimo changed his mind.) Park Chung-hee, the dictator of South Korea, once denied him a visa. (He changed his mind when the New York Times reported the denial.) But the PRC never has. “Last year, in a fit of optimism — after all, I’m 87 years old — I applied for a ten-year visa,” says Cohen, “and to my delight, I got it.”

In January 1979 — just after normalization — Deng Xiaoping made an historic visit to Washington. In anticipation of this event, William F. Buckley Jr. invited Professor Cohen to be a guest on his television show, Firing Line. “I had just broken my arm skiing,” Cohen recalls. “When I walked into the studio, Bill said, ‘That’s the way you should look when I get done with you!’” (Here we have a classic example of WFB’s mixture of competitiveness and good humor.)

Cohen adds, “I told him I did not want my mother, who would be watching, to know about my arm, so would he please tell the cameramen not to descend below my neck? He did this, and a good time was had by all.”

Jerry and Joan Cohen lived in China from 1979 to 1981. They have lived in China at various other points in their long marriage, too. (They have also lived in Japan.) In 1990, Jerry signed on with NYU, and there he remains.

As Cohen tells it, there have been many Chinas over the years — since 1949 and the establishment of the Communist state. You get used to big changes in China. “There were the mass executions of the early 1950s. There was the Anti-Rightist Campaign of the late ’50s, and the Great Leap Forward. Then the Cultural Revolution from 1966 to 1976. Then the Deng Xiaoping era, which was very different. And now we have the era of Xi Jinping.”

Which is very, very bad, for political and civil liberties. “This is the tightest period since the end of the Cultural Revolution,” Cohen says — even worse than the years following the Tiananmen Square Massacre in 1989. Recently, the way was cleared for Xi Jinping to remain president for life. “He now has unfettered power,” says Cohen.

In search of a substitute for Western or universal values, such as constitutionalism and human rights, Xi has been invoking Confucianism, Cohen explains. This is curious in that the Communists always denounced Confucius as the progenitor of feudalism and backwardness. But about ten years ago, they started to use him as a symbol of nationalism.

A big Confucian concept is xiao, i.e., filial piety — but this is ignored by Xi, Cohen points out. The leader’s father, Xi Zhongxun, was an early Communist leader who in 1962 fell out with Mao. He was punished in the usual and horrible degrading ways, and was not rehabilitated until Deng Xiaoping came to power, 16 years later. When he came back, he “preached openness,” as Cohen says. His message was: Unless the Party allows differences of opinion, both at the elite level and at the mass level, it will never be able to govern China successfully.

Xi Zhongxun’s son — who has more power than any Chinese leader since Mao himself — has gone in the exact opposite direction.

In the West, many people contend that China is no longer Communist, but something post-Communist. Professor Cohen says, “China is Communist both in name and in practice. They don’t like to advertise it anymore, because the Soviet Union is gone and it was a loser, but the Communist system in China today was imported from the Soviet Union, and while they have added certain Western, especially American, flourishes to the system, particularly to attract foreign investment and economic cooperation, the fact is that China today, in its institutions and ideology and forms, is a Communist system, there’s no doubt about it.”

Christianity is increasingly popular among the Chinese, and this worries the Communist party, as Cohen says. More than worried, they are scared to death of Christianity and its inroads. That’s why they knock down crosses and go after secret churches.

“Any independent organization is a threat to Communist rule,” says Cohen. “Not just religious groups but human-rights lawyers, free labor unions — anything.” Consider NGOs, i.e., non-governmental organizations. “Many NGOs want to do things that people want, such as curbing pollution. The Party doesn’t want them doing anything on their own, because everything must be under the control of the Party.”

These days, Professor Cohen is consumed by Xinjiang — the region in northwest China where the Uighurs live. (They are a Turkic minority.) Almost a million people have been locked up, herded into concentration camps in the name of “patriotic education.” The world has more or less ignored this situation.

The Uighurs are routinely tortured, but they are not yet being killed, unless they resist. Still, Cohen can’t help thinking of Austria and Germany under Hitler. Some 40 distant relatives of Cohen’s were killed there.

For years, many of us have been taught, “Political liberalization follows economic liberalization, as Tuesday follows Monday.” Indeed, Condoleezza Rice once described this to me as an “iron law.” Is China defying that law? Does Cohen believe in the law?

He chuckles a bit. “This is the belief on which I based my career.” In 1979, he had to decide whether he would leave his life at Harvard Law School. A wonderful life it was. Great students, great library, great office. A beautiful house with many, many rooms, for his family to spread out. The house was right next to the neighborhood tennis court, too.

And he gave it up for . . . one room in the Peking Hotel. “When we got two rooms, we thought we were in paradise,” Cohen says.

A new era was dawning in China, and Cohen wanted to be there for it. He wanted to participate in “the development of a legal system that would promote economic development and political development, and bring China into the modern world as a major player.”

How has it all worked out? Well, China has obviously made great strides in the economic realm — genuine leaps forward. “People live much better than they used to,” Cohen says. This has put the CCP in an awkward position. “The regime is caught in the same problem that the Shah of Iran had in the 1970s: You improve people’s lives, and they want more.” China now has many educated people, and wealthy people. They don’t know why they have to go without freedom, democracy, and the rule of law.

Today, in this Xi Jinping era, political liberalization is stalled, even crushed. “We’re in a trough,” Cohen says. But, president for life or not, Xi won’t last forever — and his successors might resume an upward path.

Cohen also notes, “We have 350,000 Chinese students in this country,” meaning the United States, “and while not all of them are in love with America, most of them seem to see the benefits of a free society, and many of them want to go back to China and express themselves without going to jail for it.”

As we talk, I bring up with Cohen an old and potent issue: nationalism. In my experience, even dissidents have a strong dose of nationalism in them. Tortured by the Communists, they would use their last breath to croak, “Tibet is an irrevocable part of the Chinese nation!”

I exaggerate of course, grossly — but to make a point. Cohen says of Chinese citizens at large, “They get Tibet with their mother’s milk.” Tibet as part of China is stamped on them from birth.

Another subject: Hong Kong. Will the city be able to retain its “special status,” or will it be inevitably absorbed into the PRC? “Hong Kong is losing its special status by the month,” Cohen says. “Hong Kong is right now the battleground between the Chinese Communist dictatorship and Western liberal values and political institutions.” It is a “daily struggle,” and the liberal side is losing.

How about Taiwan? Cohen is a great admirer of this island, this nation, really. Taiwan evolved from a dictatorship, headed by Chiang — another disciple of Lenin, like Mao — to a democracy. “For decades in China,” says Cohen, “I had to hear defenders of the government’s repression on the mainland say, ‘You don’t understand Chinese political-legal culture. We didn’t have the two English revolutions of the 17th century, we didn’t have the American Revolution and the Bill of Rights, we didn’t have the French Revolution and the Rights of Man. Our culture doesn’t permit the development of democracy.’ Well, Taiwan is a living refutation of that claim.”

Asked whether he worries about Taiwan’s future, given Beijing’s designs on it, Cohen says, “I worry about it every day, including this morning.” Beijing is using political and economic pressure against Taiwan, yes — but it is also using military threats, as Cohen details.

Finally, a question on many minds and lips: Should the world fear the rise of China? Not particularly, says Cohen.

“I think that, right now, China is at the point of maximum influence. Yet China has many internal problems, problems that are hard for the world to see, because the regime is not transparent. China is weaker than it appears to be to most outside observers. There are political problems among the Chinese elite that are very important and unresolved. That’s why some people end up getting prosecuted while others, though equally corrupt, are spared. Not only are there political problems: The economy is inevitably slowing down, which will have political implications. The population is changing, so you get an increasingly old population. A labor shortage is occurring in some places. The Chinese don’t produce enough children.” (The regime acted to restrict population growth, as Professor Cohen points out.)

Yes, “there are many internal problems in China,” and the world need not be too fearful about its rise. “I think their bark right now is worse than their bite will be.”

In every period — grim, hopeful, and bloody — Jerry Cohen has been a China engager. He has worked with countless Chinese lawyers, judges, scholars, and others. “They crave international contact,” he says.

The Chinese government has not decorated him, as the Japanese government has. Instead, “they’ve given me a few shots across the bow.” But many Chinese esteem this Great Helmsman, who will have a place when the story of China’s democratization is written.


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