Law school classes are filled with heavy, pedantic concepts, but even more than that, they're overflowing with explanatory analogies and metaphors describing those concepts. ("Law is a path...wait...law is a tool.. no, wait...law is a toolbox.") Perhaps it's just the nature of law, or of lawyers, to take a concept and explain it in five different ways. I think the variety stems -- in large part -- from the awareness that the "successful" analogy (in the meme sense of the word) carries a lot of interpretive power, and can result in the liberal or conservative use of a particular law or set of laws. Whatever the reason, legal concepts, like hailstones, pick up layers of understood meaning as they descend through the troubled minds of legal thinkers and into the (unfortunately?) not-so-troubled minds of the public.
Some analogies do work, though. One analogy that has always made sense to me has been to think of the differences between legal rules and legal standards as stop signs and yield signs. This connection isn't metaphorical -- the commands to "stop" and "yield," are, in fact, respectively, a real legal rule and a real legal standard. Here in Shanghai, I'm reminded of how important those two concepts are every time I cross the street.
More on that later. What I really want to talk about today is red right turns.
While out running a few weeks ago, I was nearly hit by a taxi driver who ignored me and the ten other people walking with me in the crosswalk. We were huddled together in the traditional, flounder-like, strength-in-numbers phalanx -- one of us might not make it across, but at least most would. As the cab passed by us, narrowly missing our group's outliers, my emotions got the better of me and I slapped the trunk. No damage was done to the car (or my hand), but it was enough to get him to stop, get out, and challenge me to a heated, extemporaneous battle of rhetoric and wit. He spoke on a sort of "Madlibs for Adults" script.
"Hey [impolite salutation]. What [adjective involving an [animal name] egg of inferior quality] right do you have to do to hit my car?"
"I'm sorry sir. I was merely expressing my discontent at your failure to observe the Central Government's statuary laws and relevant regulations on Traffic Safety. I believe that you're supposed to yield to us." (I'm afraid my Chinese does actually sound this Harry Potter-esque, I haven't quite mastered informal Chinese yet.)
"[Rhetorical indicator] yield?!? I'm turning right. [Interjection that will fail in its intended effect because the foreigner you're speaking with has no idea what insult you're using or its gravity .]"
"You still have to yield. It's the law....I'm a lawyer. (I promise this was said in jest and self-deprecation.)"
Luckily, my ten other compatriots in the crosswalk came to my aid. They understood the script far better than I did, and were far more effective in this game of Mad Libs than I could ever hope to be.
As the Oxford-style debate launched into the Shanghai dialect-ic, I took my leave. But I couldn't help but re-create our argument in my head. Why was it so difficult to convince this driver that there was no possible way he could ever be right in any sense of the word (besides the fact that there might be)?
As I mused, I thought that, given a second chance, this is what I'd have liked to convey to my driver-adversary...
Stopping and Yielding in Legal Philosophy
The beauty of a simple stop sign is that it does not allow judgment in determining the best course of action. Whatever else the situation dictates, you must first stop. If you're unlucky enough to be at a stoplight, you're even more bereft of self-determination, as you'll be held in place by an inanimate lighted box for an extended period of time, released to your own devices only when its electrical circuits change the light from red to green. Shanghai drivers have this concept firmly under control. I've been impressed at the decided lack of blatant red-light-running
"Yielding" is a far more complex concept. In a sense, it's telling you to "continue only if it's prudent." Successfully yielding requires that the driver not only observe the order on the sign, but also that s/he takes in the surrounding environment, considers the safety risks of various courses of action, and then uses his/her judgment in moving forward. This is complex! Consider that in order to obey a stop sign, you only have to observe that sign. If you stop, you've succeeded in obeying that rule. Yet, even once you've "yielded," there is still the chance that you failed to comply with the requirements of that sign. Signs that require judgment on the part of the driver leave room for judgment regarding their compliance.
Of course, there's much more that can be said about this, especially when considering its relevance to China. (My mind just balked at the myriad blog posts Chinese Intersections could inspire.) I think I'll just stick with one observation though -- that in a complex world, rules and standards coexist at nearly every point in time, and I am never really allowed to forsake judgment: even if I successfully stop at a stop sign, there are any number of traffic rules/standards I can break in embarking from my stopped position. Stop signs don't really relieve us from exercising judgment, only from exercising one particular judgment, and even that's conditional (consider emergencies, broken lights, etc.). So for my purposes, the real difference between the two from the driver's perspective simply has to do with timing. One tells us to think. One tells us to stop, then think.
The problem with red right turns is that they're actually highly complex, as traffic laws go. It's a standard nestled within a rule -- drivers are to replace a very straightforward rule (stopping at a red light) with a yielding standard. This shouldn't be hard to one used to juggling the many rules and standards we're burdened with at all times, but it can be difficult for those with a less three-dimensional view of legal obligations.
A Judgment Problem
There are many reasons why the cab driver almost hit us and yet still felt confident enough to get out of his car and engage us in rigorous debate, starting with the possibility that he just didn't know the law, or that what I had done was a highly unusual and perhaps a quite jarring display of public disrespect (for which I have had moments of strong, uncomfortable guilt).
I'm going to assume that he did know the law, in some form, and make two comments.
Comment One: He is exercising the judgment required by the standard, it's just that it is a judgment strongly influenced by cultural and empirical factors that equate to a vastly different conclusion as to what prudence requires. Or, as my girlfriend puts it, more curtly, "They have no notion of cause/effect nor of civil society."
At this point in time, cars on China's roads are recipients of far more rights than they are responsibilities (strict liability for any damage caused or pedestrian hit aside). As is mentioned in the blog post cited below, there are customary expectations among drivers and pedestrians on how different vehicles will act, and "how they will act" is normally consistent with the status bestowed by virtue of your mode of transportation: four wheels good, two legs bad.
There's also room here to talk about the value of individual life and the lack of a consciousness of what a ton of motorized metal can do to an individual life (whether that life is the driver's, passenger's, baby-held-in-parent-lap's [!], or that of the pedestrian). That's something I'd love to discuss with anyone who's read this entire thing and is still engaged enough to post a comment.
Observation Two: This is my favorite, so it's probably wrong: The complexity of a standard within a rule is too much for most drivers' legal consciousness. In my parley with the cab driver, I posited that he was required to yield. He rebutted that he was allowed to turn right on a red light. He had made the exception to the rule equal the negative of the rule. "Stop, think" became "Go, don't" rather than just "think." It was a green light, not a red right turn. The beauty of a rule is that it takes away judgment -- you must stop on red. The danger here is that drivers are equating an exception to the rule as no rule, rather than what it is, a standard within that rule.
Even I'm laughing at this post's ridiculousness now, but I think there's something to this. In classroom management, there are teachers who use lists of rules to control students and there are teachers who give standards. ("Don't talk, don't stand up, don't _____ without permission." vs. "Respect yourself and others") Both types of systems can run into trouble, but the particular trouble of the first type is that students can fail to learn the spirit of the law, which can lead to a lack of application across different situations, i.e. All rules go out the window when the authority figure leaves.
In my limited experience in China and with Chinese law, I believe this problem exists in great abundance. Law is often relegated to the administration of rules rather than standards. Authority figures are comfortable enforcing rules, but not so much with enforcing standards. There is seldom a way to rationalize the lack of a stamp or seal on X document -- which of course, means it's also very, very difficult to argue that X stamp or seal was forged or made under duress. It seems as though this could be a common problem of legal development. Do rules have to come before standards?
To return to my argument with the taxi driver, perhaps what we had failed to do was settle on agreed terms. I was saying, "You failed to exercise proper (or, any) judgment" and he was saying "You have no right to question my judgment, judgment doesn't enter in to it, there's no rule that prevents me from turning now." The rule is gone. The teacher has left the room. And I'm the poor kid who's stuck as class monitor.
Footnote: China and Red Right Turns
It's hard to really describe the extent of the problem here unless you've experienced it yourself. For background on how people actually drive, I'd read this blog post AND the comments of the horrified ex-pats written below it. This guy claims to be in the top 5% of Shanghai drivers. Or you can just take my word for it that the daring-do required to cross the street can often approach that of a wildebeest crossing the crocodile-infested Zambeezi.
I'll only add that I know a number of people who've been hit by cars (or buses) that have sailed through a red right like they were on rails. A close friend of my girlfriend's family was killed by such a driver. I now enter crosswalks like a SWAT team officer securing a perimeter, primed on the balls of my feet, surveying traffic in all directions (including behind me at least twice) before I'm safely on the other side.