Rights and Urban Controversies in Hong Kong: From the Eastern and Western Perspectives 9819912717, 9789819912711

Citation preview

Governance and Citizenship in Asia

Betty Yung Francis K. T. Mok Baldwin Wong   Editors

Rights and Urban Controversies in Hong Kong From the Eastern and Western Perspectives

Governance and Citizenship in Asia Series Editors Kerry J. Kennedy, The Education University of Hong Kong, Hong Kong, China Sonny Shiu Hing Lo, School of Professional and Continuing Education, The University of Hong Kong, Hong Kong, China

Aims and Scope This series explores how citizenship is shaped by social, political, cultural and historical contexts and how it may be moulded to serve the nation state in the age of globalization. In these publications we see how governance relates to all aspects of civic life, including politics, public policy, administration, civil society and the economy, as well as the core values of society. Titles cover themes including public trust and trust building, the role of civil society, citizens’ rights and obligations, citizenship identities including those related to gender, class and ethnicities. Authors explore how young people are shaped by democratic and traditional value systems and the importance of citizenship challenges in the Asia Pacific region. Research collaborations in this interdisciplinary series probe questions such as: What are the links between ‘good governance’ and new forms of citizenship? What is the role of citizenship education as a tool in state formation and the development of active citizenship cultures? How do we explain the distinctive features of governance and citizenship in Asian societies? Through these publications we see that citizenship is an integral part of ‘good governance’ and that such governance ultimately enriches citizenship. Scholarly investigation and academic dialogue in this series describe the interdependence and mutuality of governance and citizenship. Please contact Melody Zhang (e-mail: [email protected]) for submitting book proposals for this series.

Betty Yung · Francis K. T. Mok · Baldwin Wong Editors

Rights and Urban Controversies in Hong Kong From the Eastern and Western Perspectives

Editors Betty Yung Department of Public and International Affairs City University of Hong Kong Hong Kong, Hong Kong

Francis K. T. Mok Department of Social Sciences The Education University of Hong Kong Hong Kong, Hong Kong

Baldwin Wong Department of Religion and Philosophy Hong Kong Baptist University Hong Kong, Hong Kong

ISSN 2365-6255 ISSN 2365-6263 (electronic) Governance and Citizenship in Asia ISBN 978-981-99-1271-1 ISBN 978-981-99-1272-8 (eBook) https://doi.org/10.1007/978-981-99-1272-8 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Contents

1

Ethics of Urbanism: Rights in Urban Controversies . . . . . . . . . . . . . . Betty Yung

2

Approaches to Human Rights: Concepts, Conceptions, and Controversies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Kam-por Yu ∗∗∗

Part I 3

4

5

6

1

11

Conflict of Rights in Urban Issues

Sub-Divided Units: Property Rights and Market Versus Right to Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Betty Yung

31

Urban Development and Land Controversies in Rural Hong Kong: An Indigenous Rights Perspective . . . . . . . . . . . . . . . . . . . . . . . . Jean-François Dupré

49

Should Heritage Preservation Trump Protection of Private Property Right? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Koon-kau Ying

69

A Critical Assessment of the Discourse of Rights and Toleration with Reference to the Concept of ‘Gong Qi’: The Case of the Use of Public Space in the Mong Kok Pedestrian Zone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sui Ming Tsang ∗∗∗

93

v

vi

Contents

Part II

Rights, Interest and Well-being of Human and Non-human Entities

7

Analyzing the Conflict of Rights to Urban Space Between Humans and Stray Animals: From East and West Perspectives . . . . 111 Elaine Lok-Lam Yim

8

An Examination of the Multiple Ethical Approaches by Which the Worth of Urban Trees May Be Defended: The Case of Stonewall Trees in Hong Kong . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Francis K. T. Mok

9

Development Theories and the Rights of Nature: Natural Spaces and Human Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 Chi Kwok

10 Pursuing Unity or Creating Disunity? An East–West Complementary Approach to Urban Controversies Related to the Right to Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 Baldwin Wong ∗∗∗ 11 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 Francis K. T. Mok

Chapter 1

Ethics of Urbanism: Rights in Urban Controversies Betty Yung

Abstract This book is about the ethics in relation to urban issues. Its main theme is how ethical considerations from Eastern and Western perspectives, especially that of rights, may be deployed in addressing urban controversies. In almost all chapters, a substantive urban issue concerned with rights of individuals or groups will be discussed. Particular attention will be paid to the strength and limitations of rights as a conceptual tool in resolving the conflicts of interests between classes; between indigenous people and non-indigenous people; between human inhabitants and non-human animals; and between human communities and nature.

1.1 Overview There have been discussions on “cities and urbanism as a social science” such as urban geography [e.g. Pacione (2009), Badcock (2014), and Ofori-Amoah (2007)] and urban sociology [e.g. Cousins (1979), Choldin (1985), and Abu-Lughod (1991)] or as technical and practical undertaking such as in urban planning [e.g. Freestone and Westerman (1983), Beatley (2011), and Etingoff (2017)]. There are seldom talks of the “ethics in relation to city and urbanism”, a gap which this book tries to fill. The thread and the main theme of this book are to explore this issue from the Eastern and Western perspectives, comparing their different ways of addressing urban controversies. Urban issues should be examined comparatively and this book attempts to seek wisdom from both the East and the West to engage in such endeavour. It is particularly concerned with the question of whether the idea of rights is an adequate conceptual tool in resolving urban conflicts and devising urban policies. As such, the book touches on different aspects of rights in an urban context, e.g. the right to housing, the right to public space, the right to urban space on the part of trees and animals, and land and property rights among others. The book is also an interdisciplinary project since it makes use of researches in ethics, political theory, B. Yung (B) Department of Public and International Affairs, City University of Hong Kong, Hong Kong, China e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 B. Yung et al. (eds.), Rights and Urban Controversies in Hong Kong, Governance and Citizenship in Asia, https://doi.org/10.1007/978-981-99-1272-8_1

1

2

B. Yung

urban studies, housing studies, public policy, and political science to discuss urban controversies. The rights discourse is an indispensable component and an integral part of citizenship and governance in the contemporary world. The first question of rights is “whose rights are at stake?” Human rights in general? Rights of a particular class or generation? Rights of non-human animals or that of nature? The urban controversies discussed in this book are concerned with rights-conflicts of different nature: (a) Conflicts between different rights of different stakeholders, e.g. the property rights of landlord vs. the right to housing of the low-income in substandard housing; (b) Conflicts of the same right of different stakeholders in society, e.g. the land rights of Indigenous vs. that of non-Indigenous population; (c) Trade-offs between different rights, e.g. the increase in right to economic development may trade-off our right to enjoy nature, as in the case of housing development at the fringe of country parks; (d) Rights of humans vs. rights of non-human entities, e.g. tensions among the right to urban space of man, plants, and animals; (e) Conflicts of rights and other ideals, e.g. the respect of private property right vs. our desire for heritage preservation if the owner of the heritage building insists on demolishing it for individual economic gain rather than preserving it for public interest; (f) Conflicts between rights of present citizens vs. future generations, e.g. the right to economic development of present generation may diminish the right of future generations to enjoy nature and their right to collective memory of their society if there is rampant and indiscriminate development in the present era. These various conflicts are particularly worth studying from a comparative philosophical perspective because different cultures have their own ways to address these conflicts. Although people may share the same “concept” of rights, different cultures have developed their “conceptions” of rights in response to the particular contexts and conflicts they are dealing with. For instance, the Western (especially American) discourse puts emphasis on civil and political rights (Yasuaki, 1999), while the Bangkok Declaration (of the Asian leaders) suggests that economic and social rights should be given priority over civil and political rights (Tatsuo, 1999). The language and practice of rights are largely historically and culturally specific in the sense that some present and past societies may not have the language of rights at all (Ivison, 2008). Most chapters of this book are based on the East–West socio-cultural context of Hong Kong. These chapters will use Hong Kong as a case study and examine rights in the urban context of Hong Kong, which is an intersection of Eastern and Western cultures. Hong Kong has mostly ethnically Chinese residents, displaying continuities with the Confucian traditions, while undergoing years of British rule, with which Western values have been introduced into the Hong Kong society. Through this case study, this book endeavours to bring out the East–West different perspectives on rights, equality, and justice among others; how the East–West cultural and political context of Hong Kong will handle urban issues differently from other more Eastern contexts (e.g. Taiwan) and Western contexts (e.g. Britain, Canada, etc.). Academic comparative studies (including comparative East–West philosophy) often involve comparisons between different contexts, cultural traditions, and knowledge paradigms (Wang & Huang, 2016). The concern for commensurability (in

1 Ethics of Urbanism: Rights in Urban Controversies

3

different dimensions, such as cultural, conceptual, methodological, or subject matter among others) of concepts and theories beyond their place of origin may be raised (ibid.). However, given common and shared humanity among all societies, diversities, and evolving elements within a given society, the differences among cultures need to be comprehended and appreciated within the context of similarities. Different cultures can be complementary and overlapping, with each adding value to one another, rather than incompatible and dichotomous. And this book leverages such a perspective in the analysis of urban issues in an intercultural context. Adopting an intercultural mindset will free one from the unquestioned agenda and assumptions of one’s culture and society, thereby liberating one from the fossilized approach to problem-solving, thus making one more creative and innovative in handling different issues. Each cultural tradition (be it East or West) has its own strengths and limitations. If synergy and interactions of different cultures and traditions can be enhanced, with intercultural learning being facilitated, enrichment of humanity as a whole may be better achieved. This book is an endeavour in such pursuit, making intercultural exchange and dialogue real and concrete in the management of practical everyday urban issues. There has been much emphasis on the defence of individual rights, sometimes to the level of abuse of rights and “rights inflation”, without due regard to the responsibility and obligations towards others and society. Such rights talk also tends to be anthropocentric, without taking into consideration the well-being of non-human agents (e.g. animals, plants, nature). The East–West comparative study in this book will steer towards a closer examination of the strengths and limitations of the language of rights in urban controversies. The strength of rights lies in drawing the baseline and the minimal level for guaranteeing well-being (i.e., preventing the worst). It needs to be complemented by other approaches drawn on wisdom from both the East and West, such as care, virtues, mutual respect, justice, social and moral obligation (and duties), as well as love, to bring about the “good” and the “best”. However, rights lay the foundation of other approaches. If rights are not respected, other approaches cannot possibly apply as the former forms the minimalist state. Let’s consider the example of the rights of stray dogs in an urban context. If there is no right of a city stray dog not to be tortured by naughty children for fun, there is no saying of the care of, doing justice to, and love of animals in general and this dog in particular, on the part of such children. Nevertheless, if other approaches apply, rights talk need not be invoked, such as a virtuous person A will tend not to infringe the rights of others and may even act in a supererogatory way to do more for others, thereby there is no need of others to defend their rights against A. Rights-talk can be latent (if other approaches prevails); it is to be invoked to guarantee the minimum (if other approaches fail). Such a holistic perspective of rights (drawn from the wisdom of the East and West) may prevent excessive rights talk to the level of abuse of rights and “rights inflation”, taking into consideration the well-being of both human and non-human. In the academic world, knowledge is classified into different disciplines to be taught and researched on in different departments under various Faculties in universities, leading to the compartmentalization of knowledge. Yet, policy issues, including

4

B. Yung

urban policy ones, are deeply complicated, often requiring a holistic, interdisciplinary approach for policy analysis and suggestions of appropriate directions, strategies, and solutions. Political Philosophy and Ethics are often taught and researched in the Philosophy Department of the Arts Faculty. Urban Studies, Public Policy, and Housing Studies are often put under the Social Sciences Faculty. There are seldom cross-faculty joint-research efforts, applying political philosophy and ethics to examine housing and urban issues from the normative perspective. This book is to fill this gap, trying to throw new lights and “out-of-the-box” approaches to housing and urban issues, drawing conclusions on urban governance and serving as good reference material for urban citizenship education.

1.2 Nature and Aims of the Book This book will adopt an interdisciplinary approach integrating political theory, ethics, urban studies, and public policy, essentially making applications of ethics and political philosophy to social sciences to examine controversial urban issues in the Hong Kong context. It challenges the general conception that philosophy and ethics are detached from everyday life, with the philosophers engaging mainly in abstract intellectual pursuits and some of them even disdaining “pedestrian” applications of abstract thinking. This book tries to make applications of ethics and political philosophy to real-life urban contexts in Hong Kong, thereby trying to highlight the normative in order to throw new light on the general approach and strategy to deal with practical urban issues, facilitating “out-of-the-box” thinking in the field of housing and urban studies. It aims to facilitate the building-up of “living philosophy” which helps the solving of contemporary practical issues through appreciation and integration of ancient and contemporary East–West theories and wisdom, stimulating scholars, researchers, and students in the fields, urban planners, urban managers, and other professionals as well as urban policy-makers. Such applications of ethics and philosophy to examine urban issues will be ground-breaking and even more so, with the East–West dimension (in the theoretical context as well as the socio-cultural context of Hong Kong) highlighted in the discussion of the chapters. Authors in this book draw on wisdom from both East and West to analyse Hong Kong cases of urban controversies, giving food for thought for the nurturance of good urban citizens as well as throwing lights on urban governance since rights discourse is an indispensable part of citizenship and governance in the contemporary world. This book mainly adopts an interdisciplinary approach, with the ethical applications to urban and policy studies, examining real-life urban tensions from the perspective of rights. This interdisciplinary book consists of ALL of the following key features: i.

Normative and philosophical discussion of the concept of “rights”—ethical dimensions of rights ii. Applications of normative and philosophical conception of rights

1 Ethics of Urbanism: Rights in Urban Controversies

5

iii. Discussion of rights (e.g. property rights, land rights, human rights, right to city, etc.) in an urban context iv. Discussion of human rights and rights of non-human entities (e.g. animals, plants, nature among others) v. An East–West Dimension vi. Urban controversies in the East–West context of Hong Kong This book distinguishes itself from existing books on urban issues by approaching and analysing such issues in a more holistic interdisciplinary perspective, with normative bases built on applications of philosophy and ethics as well as rests on wisdom from both East and West. The topics in this book mainly centre on one or both of the following themes: a. Urban governance—Land, housing, and development issues in an urban context; b. Urban citizenship—Issues of “we” as opposed to “they” identity in a city (e.g. indigenous inhabitants, urban trees, stray animals as “they” in cities) The chapters of the book will touch on urban controversies on multiple interfaces: between society and the vulnerable minority (sub-divided units); mainstream and Indigenous people (small house policy); the future and the past (heritage preservation); human and non-human animals (stray dogs and cats); human community and ecological whole (management of trees and nature). Such discussions can contribute to the nurturing of good citizens (serving as references for citizenship education) that in turn underlies good urban governance. The discussions in this book are not merely an academic pursuit but have high practical relevance in contemporary urban management and everyday life through the blending of East–West culture and wisdom. The book primarily situated the discussion of urban controversies in the context of Hong Kong. With the recent protest in Hong Kong in 2019 that catches international attention, there has been overwhelmingly great and overemphasis of the China factor in Hong Kong context, especially in the political arena (being narrowly defined), neglecting other non-political, livelihood, and environmental issues that are equally, if not more, important in urban and Hong Kong governance. This book attempts to balance out the prevalent tendency of “politicization of all issues” (as well as the “neglect of non-political issues”) in the context of Hong Kong by highlighting aspects of urban life and urban ecology in Hong Kong that are less “political” or “non-political”, being less related to influences from Mainland. The China factor is more influential in issues in the political arena. Since some urban and environmental issues in Hong Kong are not deeply influenced by the China factor, they can be discussed independently, or the China factor can be given less attention, though the China factor would be considered, when necessary. Hong Kong has its uniqueness, especially with its historical, cultural, and political distinctive characteristics. It can be a special urban case for examination of East–West underpinnings. By focusing on “non-political”, “non-Mainland-influence-related” urban issues, lessons gained in the Hong Kong context can be applied to other city contexts. Despite the historical and political uniqueness of the city of Hong Kong, the

6

B. Yung

theoretical and normative discussions on “rights in urban issues” in the East–West Hong Kong context can throw lights on urban governance in other settings since cities may face common issues of concern (e.g. developmental, housing, and environmental issues). Thus, there may be commonalities and shared underlying principles for good urban governance, tackling everyday urban issues that may not be context-specific. It is the very normative and theoretical discussion of urban issues in this book from both Western and Eastern perspectives that such general commonalities and underpinning governance principles in urban contexts will be highlighted. The topic chosen for most chapters displays at least one controversy related to rights in an urban context. Other topics, in relation to social, political, and economic issues in Hong Kong context that have been well-discussed and researched upon, are not covered in the book.

1.3 Outline of the Book This book addressed urban issues from East–West perspectives, facilitating intercultural comparison and discussion. Some chapters are more theoretical and philosophical oriented, while some are more practical and empirical-based. This book tries to achieve a good balance in the approaches of the chapters. Each chapter is related to the theme of the book—rights. Each chapter is to focus on an urban controver(sies), involving the conflicts of rights of different natures. These urban controversies are situated in the East–West settings of Hong Kong, to be examined in the normative, philosophical, political, and cultural contexts. Chapter 2, being theoretical in nature, sets the stage for the exploration of different cases of urban controversies in the following chapters. In Chapter 2, Yu reviews the concept of human rights and the competing conceptions of human rights, laying the theoretical foundation upon which practical implications in public policy and urban controversies are drawn. Confucian perspectives on human rights add an East–West dimension to the discussion of human rights in the chapter, with concluding remarks highlighting the value and the limitations of human rights discourse. ∗ ∗ ∗

1.3.1 Conflict of Rights in Urban Issues In Chapter 3, Yung highlights an urban and housing controversy in Hong Kong that is very difficult to resolve—the emergence of sub-divided units as property-rightcentred market “solution” to housing unaffordability, yet at the same time poses a societal problem from the perspective of "right to housing", on the part of the sub-divided unit dwellers. The long-term alleviation of such housing problem may

1 Ethics of Urbanism: Rights in Urban Controversies

7

include the provision of public rental housing and third-sector housing to rehouse the sub-divided unit dwellers, public education on legal and safe flat-subdivision, public dialogue and discussion on the exact nature of housing as well as the promotion of civic and moral education. Confucian perspectives on government’s role in relation to basic needs, care for others, and profit-making among others add an Eastern perspective to the issue of sub-divided units, giving the chapter an East–West colour. Dupré’s Chapter 4 highlights the Indigenous rights situation and related controversies in Hong Kong. Indigenous rights and interests in Hong Kong are enshrined in the constitutional documents of the Hong Kong Basic Law, with Indigenous leaders’ representation in political bodies and preferential land rights for Indigenous people which are often perceived as unfair by Hong Kong’s non-Indigenous population. Resentment towards Indigenous rights is further aggravated by the genderdiscriminatory nature of some Indigenous practices. Although such discriminatory practices are grounded on Confucian patrilineality, Dupré points out that they can be “reformed” through Confucian thinking, adding an Eastern perspective to the discussion. Alleged collusion between Indigenous elites, land developers, organized crime, and the government further complicated the Indigenous issue in Hong Kong. Dupré concludes on the adoption of the hybrid approach (integrating the convergent liberal rights and Confucian lines of thinking) in the handling of Indigenous rights in the context of Hong Kong. Chapter 5 discusses the obligation to heritage preservation from a moral point of view. Ying highlights the controversies arising from the clash of property rights and heritage preservation—if heritage is privately owned, should heritage preservation “trump” over the protection of private property right or vice versa? This chapter examines the controversy at the theoretical level by drawing on ideas from Confucianism. The preservation of King Yin Lei and Ho Tung Garden as controversial cases of heritage preservation in Hong Kong are analysed to illustrate the applicability of such theories. In Chapter 6, Tsang demonstrates that it is difficult to reconciliate the conflict of rights in urban controversies, such as that of Mong Kok pedestrian zone, where there is the conflict between the right of expression versus the right of not to be culturally invaded in the context of busking by “dai mas”. Merely relying on the discourse of rights and tolerance will not allow transcendence from self-interest protection, making it difficult to achieve societal harmony. Tsang applies an eastern idea, namely, Wang Fuzhi’s concept of "gong qi", to analyse the issue concerned, trying to break through the stalemate among divergent groups.

1.3.2 Rights, Interest, and Well-Being of Human and Non-Human Entities Chapter 7 focuses on the conflicts of the right to urban space, on the part of humans and non-human animals, with ethical issues relating to stray cats and dogs in Hong

8

B. Yung

Kong as illustration. Yim suggests the adoption of the Buddhist approach in resolving such issue, with emphasis put on the harmonious co-existence of human and nonhuman animals. Instead of the present Hong Kong policy of putting down stray animals (unless they are re-homed), stray animals should be neutered and returned to their habitat. Yim compares the Buddhist approach with two Western approaches to animal ethics, namely, the utilitarian approach and the rights-based approach, concluding that the Buddhist approach is more adequate in resolving the issue concerned both in philosophical and practical terms. In Chapter 8, Mok examines the case of stonewall trees as an illustration of the conflict of rights and interests between humans and other non-human entities in an urban context. Two common Western approaches to defend the rights and interests of trees, namely, the biocentric and the holistic approach, are discussed, concluding that they may both be inadequate. The Eastern Daoist perspective which stresses the importance of yielding and non-contention as well as abstaining from the defense of one’s rights may offer appropriate solution to this controversial urban issue. In Chapter 9, Kwok points out that the “aggregate” approach of development, such as GDP which emphasizes economic measurement, and “human development” approach which is individual-centric do not give enough room conceptually to the role of nature in human development. Kwok suggests the conception of development should include the right of nature, with the example of urban natural park demonstrating that nature is constitutive of human well-being, promotes more egalitarian opportunity to well-being as well as helps build social capital. Kwok compares Eastern and Western views on the relations between nature and human development, highlighting that they are complementary to one another. Wong argues in Chapter 10 that political liberalism and Confucianism are complementary in environmental policy-making and green citizenship education. While political liberalism can substantiate green laws and policies in the public arena, Confucianism can be used in educating and convincing others in the advocacy of green citizenship in the private arena. The controversy related to the building of a student hostel in 2013 at the Chinese University of Hong Kong is used to illustrate how the Confucian idea of Tian-ren-he-yi can stimulate reflections on putting an emphasis on the right to development. ∗ ∗ ∗ In Chapter 11, Mok draws the conclusion for the whole book, highlighting the limitations of the Western-oriented language of rights, bringing some concepts in the Eastern philosophical tradition suggested by authors in the book as a supplement or replacement. Mok emphasizes the need to search for conceptual tools to empower vulnerable humans and non-humans by checking against the assertion and encroachment of humans, drawing attention to humility and self-restraint.

1 Ethics of Urbanism: Rights in Urban Controversies

9

References Abu-Lughod, J. L. (1991). Changing cities: Urban sociology. HarpenCollins. Badcock, B. (2014). Making sense of cities: A geographical survey. Routledge. Beatley, T. (2011). Biophilic cities: Integrating nature into urban design and planning. Island Press. Choldin, Harvey M. (1985). Cities and suburbs: An introduction to urban sociology. McGraw-Hill. Cousins, A. N. (1979). Urban life: The sociology of cities and urban society. Wiley. Etingoff, K. (Ed.). (2017). Sustainable cities: Urban planning challenges and policy. Apple Academic Press. Freestone, R., & Westerman, H. (1983). Spirited cities: Urban planning, traffic and environmental management in the nineties. Federation Press. Ivison, D. (2008). Rights. McGill-Queen’s University Press. Ofori-Amoah, B. (2007). Beyond the metropolis: Urban geography as if small cities mattered. University Press of America. Pacione, M. (2009). Urban geography: A global perspective. Routledge. Tatsuo, I. (1999). Liberal democracy and Asian orientalism. In J. R. Bauer & D. A. Bell (Eds.), The East Asian challenge for human rights (pp. 27–59). Cambridge University Press. Wang, G., & Huang, Y.-H.C. (2016). Contextuality, commensurability, and comparability in comparative research: Learning from Chinese relationship research. Cross-Cultural Research, 50(2), 154–177. Yasuaki, O. (1999). Toward an intercivilizational approach to human rights. In J. R. Bauer & D. A. Bell (Eds.), The East Asian challenge for human rights (pp. 103–123). Cambridge University Press.

Chapter 2

Approaches to Human Rights: Concepts, Conceptions, and Controversies Kam-por Yu

Abstract In this chapter, we review the concept of human rights and the emergence and development of human rights thinking in history. Three competing conceptions of human rights are discussed. Their different theoretical foundations and divergent practical implications will be illustrated. Finally, questions such as the Confucian perspective on human rights and the limitations of human rights discourses will be addressed.

2.1 Introduction In this chapter, we will examine the relation between human rights and urban controversies. Unfortunately, we cannot answer this question in a straightforward way, as there are different ways to understand human rights, and the relation between human rights and urban controversies may be seen differently if human rights are understood differently. We will look into the following questions one by one: (1) What is a right? (2) What are human rights? (3) Where does the idea of human rights come from? (4) What are the rival conceptions of human rights? (5) How far can we make use of the idea of human rights in response to controversies in public policy?

K. Yu (B) Cambodia University of Technology and Science, Phnom Penh, Cambodia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 B. Yung et al. (eds.), Rights and Urban Controversies in Hong Kong, Governance and Citizenship in Asia, https://doi.org/10.1007/978-981-99-1272-8_2

11

12

K. Yu

2.2 Discussion 2.2.1 The Concept of Human Rights 2.2.1.1

What Is a Right?

To say the least, a right is a legitimate interest. To say that the landlord has a right to get back the rented apartment from the tenant after the renting period means that the landlord has a legitimate interest in getting back the apartment. Likewise, to say that the tenant has a right in staying in the apartment means that staying there is not just an interest, but a legitimate or justified one. Of course, when a person has a right, it may not be a right to have some kind of thing or entity, it can also be a right to do something or to choose something. For example, when we say a person has a right to move his home, we do not refer to the entitlement of receiving any benefit, but the freedom to choose where to live, or move out of a place and into another place. In view of the possibilities that a right can be a right to have something or a right to act in a certain way, we can characterize “a right” as “a legitimate interest or liberty”—to have a right in X means that “it is (morally or legally) legitimate to have X or to do X”.1 However, a right is not just a legitimate interest (or liberty). It is an interest that has a corresponding duty. If no one is responsible, then it can still be a legitimate interest all the same but it cannot be understood as a right. When we say everyone has a right to a shelter, we mean that there is a corresponding duty to make it happen that everyone has a shelter—maybe it is the duty of the government or the society or even humankind as a whole.2 However, if we think that it is everyone’s own business to get his or her own shelter, and no one else owes anything to them, then we will say having a shelter is just an interest, not a right.3 An interest does not always come with a correlative duty, but a right always implies a correlative duty. Can we then regard a right as a legitimate interest with a corresponding duty? Joel Feinberg asks us to conduct the following thought experiment (Feinberg, 1969). Let us imagine that we have all the moral vocabulary (such as good and bad, right and wrong, virtue and duty, benevolence and justice) except the term “rights”, how would it be different from the alternative world where we also have the term “rights”? What would be lacking if we do not have the moral term of “rights”? Without the 1

If it is moral legitimacy that we are talking about, then the right is called a “moral right”. If it is legal legitimacy that we are talking about, then the right is called a “legal right”. 2 The right to housing understood as entitlement to minimal decent housing is a positive right. That is to say, something should be done to make it happen that everyone has a shelter. By contrast, to claim that everyone has an equal right to acquire housing is to say that no one should be discriminated and prevented to acquire housing that is available to others. Such a right would be called a negative right, requiring no positive action to uphold the right, but only restraint from acting against the right. 3 As pointed out by Dupré, to recognize the indigenous inhabitants of the New Territories have Indigenous rights means that “reasonable amounts of state resources be allocated to the provision of these rights” (Chapter 4, p. 63).

2 Approaches to Human Rights: Concepts, Conceptions, and Controversies

13

concept of “rights”, people can still make all sorts of evaluations of states of affairs as good or bad, and make all sorts of judgments about actions as right or wrong, or talk about people’s motives as virtuous or vicious. However, people would only feel grateful when others do what they are supposed to do or feel disappointed when others don’t. They would not have the moral vocabulary to argue for their own legitimate self-interest. This thought experiment shows that rights talks have a special value in giving moral power to the right holder to make claims against the duty bearer, should they fail to deliver their duty. It is important to note that A’s having a right against B means more than B’s having a duty to A. In addition to correlative duty, a right at least entails that the right holder is justified to make a claim in case the addressee of the right fails to do his duty. If A has a right against B, not only does B owe A a duty. A is justified to demand B to carry out his duty, in case B fails to do so. It is this use to make a legitimate claim that makes rights talk a powerful moral tool. To sum up, a right has the following features: (1) a right entails an interest or a liberty on the part of the right holder; (2) a right entails a duty on the part of the addressee of the right; (3) a right entails a justified claim on the part of the right holder should the addressee of the right fail to do the corresponding duty.4 These features also capture the special values of the language of rights: it delineates the scope of people’s legitimate interest, it highlights duties that have to be fulfilled, and it supports victims to make claims against their transgressors.

2.2.1.2

What Are Human Rights?

Human rights are one specific kind of rights. They are rights people have simply in their capacity as human beings (Donnelly, 1989, p. 9; Mayo, 1967, p. 68). There are rights people have in other capacities, such as citizen, home-owner, employee, or spouse. There are also rights people have as a result of human interactions, such as rights generated by making contracts or promises. They are also individual rights, but they are not the same as human rights.5 In some particular contexts, it is important to distinguish between human rights and citizens’ rights. For example, to refuse to let the Vietnamese “boat people” to reside in Hong Kong is not an infringement of their human rights.6 This is because 4

To recognize the indigenous inhabitants of the New Territories as having a right in the Small House Policy means that (1) the indigenous inhabitants have a legitimate interest; (2) the government owes them a duty; (3) they are justified to make a claim in defense of their legitimate interest. 5 According to Alan Gewirth (1982), the full structure of a right is given by the formula: “A has a right to X against B by virtue of Y”. It takes four parts to make up a right: A, the right holder; X, the scope of the right; B, the addressee of the right; Y, the basis of the right (i.e. in what capacity or on what condition does the right holder possess the right). Human rights are particularly related to the last part, the basis of the right. In the case of human rights, the basis is simply on one’s humanity. This set of rights does not have any further condition and it applies to all human beings. Hence human rights are regarded as unconditional and universal. 6 The Vietnamese “boat people” were people from Vietnam seeking asylum in Hong Kong in escape from Communist rule beginning from the mid-seventies. Many of them were not recognized

14

K. Yu

to reside in Hong Kong is a right entitled to a person as a Hong Kong citizen, not as a human being. However, to detain the Vietnamese “boat people” in a retention camp for an extended (like multiple years) and indefinite period may be accused as an infringement of human rights. People who recognize human rights acknowledge that human beings have a special moral status different from other creatures and objects in the world, and this moral status based on their humanity forms a basis for their entitlement of certain basic rights. In short, human rights are rights people have simply in virtue of being human. According to the understanding of “rights” outlined in the above, this means that every human being has certain legitimate interests and liberties, such that agents, individually or collectively, have a duty to respect such legitimate interests and liberties, and legitimate claims can be made against them, if they fail to render what is due.

2.2.2 Human Rights in the Global and Cultural Contexts 2.2.2.1

A Brief History of Human Rights

The concept of “human rights” is modern, but the concept of “rights” is not. In Roman law, for example, there are concepts of the Roman citizen’s rights, the husband’s rights, the father’s rights, the rights of an adopted son, etc. In the medieval period, there were also talks of the Pope’s rights, the king’s rights, the baron’s rights, and discussions of the fine lines between the rights of different parties.7 In its historical development, the emergence of the concept of “human rights” was particularly related to the ideas of natural justice and natural rights. “Natural rights” refers to non-acquired rights, which do not come from status or role that may be different among different people. It is the idea that people have certain rights which are not given to them by man-made laws, and such rights may even form the basis in judging the justice or injustice of man-made laws. There are, of course, a number of thinkers who have contributed to the development of this idea of human rights. Two of them are particularly important and will be highlighted here. They are the Dutch jurist Hugo Grotius and the English philosopher John Locke. by the Hong Kong government as refugees, a title which carries certain rights as recognized by the international community. 7 Roman Law can be divided into three categories: ius naturale, ius gentium, and ius civile. Ius naturale is not so much a code stipulated by the mundane authority as a way of moral thinking, which kept alive the Greek idea of universal and rational standard of justice. The Roman jurist Ulpian remarked that ius naturale was that which nature, not the state, assures to all human beings, whether they are Roman citizens or not. Ius gentium is supposed to be common to all legal systems. It recognized certain rights of non-Roman citizens, and applied to cases that involved foreigners. Ius civile applied to Roman citizens. See Tuck (1979, p. 9), Stein (1988, p. 44), and Haakonssen (1996, pp. 18–19).

2 Approaches to Human Rights: Concepts, Conceptions, and Controversies

15

In 1494, Spain and Portugal signed the Treaty of Tordesillas under the approval of Pope Alexander VI. According to this treaty, the world was divided into two parts. Portugal had the exclusive rights to trade, preach, and colonize all the way from Brazil to Africa to Asia. The rest of the world, including most parts of North America and South America, would be under the exclusive rights of Spain. For many years, the Dutch were regarded as pirates or smugglers sailing and trading illegally in territories where they had been excluded. But on one occasion in 1603, the Dutch ship confronted the Portuguese ship. They won the battle, and took away the goods from the Portuguese as booty. Portugal demanded to have the goods returned to them, and the case was tried in a court in Hague. The young lawyer Hugo Grotius (1583–1645) argued that (1) What was done by the Dutch ship was not wrong; (2) The goods should be kept by the Dutch ship, and should not be returned to the Portuguese; (3) In the future, the Portuguese should stop obstructing the Dutch ships on their way in the trade route. Grotius’s argument was accepted by the court. His ideas were earth-breaking, and made him a founding thinker of universal human rights and international law. Grotius’s reasoning is something like this: Human beings have natural rights. Neither the Pope nor the kings can infringe people’s natural rights. And when people’s natural rights are being violated they are justified to fight back. As free trade is also a natural right, it follows that the Pope’s allocation of the right to trade to Spain and Portugal exclusively is invalid. Hence, the Dutch had not violated the rights of Portugal in seeking to trade with East Asia (and fighting in defense), but the Portuguese had violated the rights of the Dutch ships in using force to stop them from sailing on the route to East Asia.8 For Grotius, rights are attributes of individuals and constitute a sphere within the control of the individual. “He treated rights as attributes that each individual possesses independently of membership in any group or society and prior to being under any law. … In asserting that rights are qualities of individuals as such, Grotius was breaking with older views and initiating a way of understanding the sphere of control belonging to individuals that is still important” (Schneewind, 1990, p. 89). Grotius makes the point that there are some legitimate interests of the individual that may be demanded and defended in the name of justice. Another important name in the history of the idea of human rights is the English philosopher John Locke (1632–1704). His ideas of human rights were developed as part of his political philosophy which he developed while in exile around the time of the Glorious Revolution (1688–1689) in England. He argued that people have certain basic rights which can serve to explain why the legitimate power of the state can be justified, and under what conditions is revolution justified. Such rights are not given to the people by the state. They are rights people naturally have, and the protection of such rights constitutes the justification for the existence of the state and also sets the limits of the power that can be exercised by the state. 8

For a lively narration of the story of Grotius’s defense of the rights of the Dutch ships in taking part in the trading in East Asia, see Brook (2008, pp. 63–69) in particular. For a discussion of Grotius as a rights theorist, see Tuck (1979, pp. 58–81) and Schneewind (1990, pp. 88–110).

16

K. Yu

Although John Locke’s ideas are meant to justify the political reform in England (which established the supremacy of the parliament over the monarchy), such ideas are also upheld by the founders of the United States of America in their revolution against British colonialism. As noted by the American historian Merle Curti, “The great Mr. Locke, America’s Philosopher, guide and prophet of America’s Revolution”. While Locke named three basic human rights, “right to life, right to liberty, and right to property”, the US Declaration of Independence (1776) named three basic rights slightly differently: “(right to) life, liberty, and the pursuit of happiness”.9 After the Second World War, it was realized that some common standards have to be set up to rule out the kind of crimes committed by a state against its own people as those that have been done by the Nazi. In 1948, the document Universal Declaration of Human Rights was approved by all the member nations of United Nations unanimously as “a common standard for all people and all nations”. Based on the ideas of the Universal Declaration of Human Rights, two international covenants have been accepted as multi-national treaty by the United Nations, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. The two UN Covenants of human rights ratify human rights not just as moral rights, but also as legal rights. In short, the idea of human rights arises out of the need to protect the basic legitimate interests of the people from the king, government, or the state, and grows from not taking away from the people what properly belong to them to treating people decently in recognition of their dignified humanity.

2.2.2.2

Traditional Chinese Thought and Human Rights

Is there any concept of human rights, or any concept akin to the concept of human rights, in traditional Chinese thought? There is a huge amount of ancient sayings emphasizing the intrinsic value of human beings and the importance of promoting the well-being of the common people. Sometimes these assertions are taken to represent a heritage of human rights in ancient China. Is this a reasonable claim? One view that has been compared to the idea of human rights is the minben (民本 people-as-the- basis) doctrine. The minben doctrine holds that the people constitute the foundation of the country. It emphasizes the importance of satisfying the need, expectation, or demand, of the people. If the people are not satisfied, then the society would be unstable or even collapse. As a result, it is necessary to take care of the needs or well-being of the people. However, such a view is far from recognizing that the people have rights. As pointed out by Andrew Nathan, “The people were seen as a resource, most productive when least abused. People-as-the-basis had never meant people’s rights (minquan) or people’s rule (minzhu, ‘democracy’)” (Nathan, 9

The rights enumerated in the British Bill of Rights (1689) were essentially conceived as rights of the Englishmen as recognized by the English government. The French Declaration of the Rights of Man and the Citizen (1789) covered both human rights and citizen’s rights. Human rights are universal for all human beings while citizen’s rights are only available to citizens of a country.

2 Approaches to Human Rights: Concepts, Conceptions, and Controversies

17

1987, p. 127). The talk of human rights, or for that matter people’s rights, implies the existence of duty on the side of the government, but for the minben doctrine, what is required of the government is not the fulfilment of duty, but contemplation of self-interest, which is the government’s concern to secure stability and stay in power. The talk of human rights is a moral position, but the teaching of minben is only a prudential advice. Another line of thought that has been compared to human rights thinking is the aimin (愛民) doctrine, which is more humanistic and regards the interest of the common people as intrinsically important rather than as a means to further other ends, such as social stability or national strength. For the aimin doctrine, the purpose of government policy is to promote the livelihood of the people. The interests of the people should be pursued as an end, not merely as a means. But it still involves no concept of human rights. Unlike the human rights theory which is deontological, the aimin doctrine is teleological. The right is defined in terms of the good, or the wellbeing of the people. For such a doctrine, the protection of the legitimate interests of an individual in cases where the interests of this individual is in conflict with a greater interest of the public in general is difficult to be accounted for. Sincerely loving the people can be just an expression of one’s virtue or one’s charitable heart rather than a matter of duty. But for the human rights theory, the government has a duty to make sure that the rights of the people are protected. The government is wrong, not merely unbenevolent if it fails to do so. And even if the government is doing so, it is only doing its duty, and not just being charitable. The rights talk gives the rights holder the moral tool to demand the duty bearer to carry out his duty. But with the aimin doctrine the people can only look upon the love of the ruler as a matter of grace. If the ruler is good to them, they should be grateful. If the ruler is not good, they will just pity themselves. The people are not acknowledged to have rights to press the ruler to carry out his duty, nor do they have ways to sanction the ruler should he violate their rights. The exemplary Chinese intellectual and statesman Liang Chi Chao (1873–1929) sums up the situation very well: “The ancient Chinese people realized firmly that the will of the people should be respected. But in what way can the will of the people be realized? The Chinese thinkers have not regarded this as a problem and investigated into it. So, if the ruler acts against the will of the people, except in extreme cases where the ruler commits a great sin and the people are furious and rise to overthrow him, there is no proper sanction in the ordinary time. This is the greatest weakness in Chinese political thought” (Liang, 1986, p. 32). Some writers argue that the concept of rights is implicit but not non-existent in Chinese ethics, as Chinese ethics emphasizes on human relationship, which implies duties on both sides. Wang Gungwu argues that the absence of a Chinese equivalence of the English word “rights” does not imply that there is no such concept at all in ancient China. Wang points out that the one-sided emphasis on the duties of the subjects and the sons leads to the neglect of their rights. This is only due to the corrupt and degenerate, “narrowing and inhibiting” development in imperial China. In classical Confucianism, however, Wang claims, the duties of the subjects and the sons are reciprocated by the duties of the rulers and the parents. The subjects and

18

K. Yu

the sons have rights implicit in the duties of the rulers and the parents. If we look at the classics, we can find that the rights of the subject and the son are not ignored. Wang argues, “When sons had the duty to be filial, one may say that fathers had the right to expect filial piety. When the subjects had the duty to be loyal, the ruler obviously had the right to expect loyalty. Then in return, sons could be said to have had the right to expect their fathers to do their duty and be righteous and protective and their mothers also to be loving and caring. Similarly, subjects had the right to expect their ruler to perform his duty and be benevolent, enlightened, righteous, and to observe the proper rites…. Granted that hierarchies of the ruler-subject father-son variety existed, did it matter much if the rhetoric used referred only to duties rather than to rights? What was important was that the duties were reciprocal and by being reciprocal implied the presence of rights” (Wang, 1991, p. 170). Wang here seems to have confused the beneficiary of another person’s duty with a right holder. Suppose the Hong Kong government is given the task by the Central Government to eliminate the problem of extremely poor living conditions in Hong Kong, such as tiny subdivided units or rented cages. The Hong Kong government then owes a duty to the Central Government, but specific people do not thereby become right holders. To claim that a right holder is just the same as a beneficiary of another person’s duty is to overlook a very significant moral difference. The power of the rights talk consists in the ability to make claims when the duty due is not fulfilled. If there is only the vocabulary of duty, such an ability to make claims is lost. The government can admit that it has a duty to perform to the common people. If it does not perform its duty, it is bad. But it does not follow from this that it is legitimate for the citizens to demand it to carry out its duties. It is not inconsistent for the government to say that it is wrong for it not to have carried out its duty, but it is even more wrong for the citizens to rise up and confront the government to demand it to do what they want. Likewise, a father can admit that he has some duties to perform to his son. Instead of owing such duties to his son he may owe this duty to his ancestors, or he may have such a duty simply because of his role as a father, rather than because his son has some rights against him. If he performs his duties, he is a good father. Otherwise he is not. It does not follow from this that the son is ever in a position to make a legitimate claim against his father, censuring him for not carrying out his duties and demanding him to do so. The above discussion shows that the concept of rights cannot be readily found in traditional Chinese thinking, but it does not imply that rights talk is diametrical to or incompatible with Chinese culture. The intrinsic values of every individual human being are emphatically affirmed in Confucian ethics. In the Book of Filial Piety, it is said: “Among all the things produced by Heaven and Earth, human being is the most noble” (天地之性人為貴).10 In the Book of Documents, it is also said: “Human beings are of utmost superiority” (惟人萬物之靈).11 This view implies that every individual human being has intrinsic value, and should be taken seriously and must 10

The Book of Filial Piety, Chapter 9. For a full English translation of the text and a philosophical analysis, see Yu (2015). This quotation is from p. 157. 11 From the “Tai Shi” chapter of the Book of Documents (Legge, 1960, p. 283).

2 Approaches to Human Rights: Concepts, Conceptions, and Controversies

19

not be abused. Such a view on the intrinsic value of human beings might as well be used as a basis to support human rights, just like the idea of human dignity has been looked upon as the foundation of human rights in the Universal Declaration of Human Rights. That is to say, even if there is no concept of rights or human rights in Chinese culture, such rights can be supported by core values in Chinese culture, and can be reconstructed or even derived from them. Finally, the idea of fen (分) or benfen (本分), which is a core concept in Confucian ethics and still an important concept in ethical discussion in Chinese societies today, has a close resemblance (though definitely not equivalent) with the concept of individual rights. This concept basically refers to the “proper share” of an individual, and the proper share can be either rights or duties. To the extent that this idea draws the boundary of the moral domain (in terms of what one should morally give and take) of everyone as an individual, it is an idea that is a close friend of the concept of individual rights. The importance of the idea of fen in Chinese culture also shows that the concept of human rights is not hostile but rather congenial to Confucian ethics (Yu & Göbel, forthcoming).

2.2.3 Competing Conceptions of Human Rights As noted in the above, the concept of human rights is quite simple and straight forward. It means the rights people have just on the basis of being human. However, what exactly are the rights? That is to say, what kinds of rights should be regarded as human rights, and how do we determine how to draw the line between what should be included and what should not be included as human rights? To answer this question, we have to look at the core value that forms the foundation of human rights. The idea of human rights can be conceived in different ways. There is not just one conception but different conceptions of human rights, which have very different implications on what specific rights can be regarded as human rights.12 We will look into two major conceptions of human rights, the self-ownership conception and the human dignity conception, which have been most influential in shaping the human rights discourse. Then we will consider a third conception, the human development conception, which is articulated more recently and has been gaining credibility and popularity.

12

In his seminal paper “Two Concepts of Liberty”, Isaiah Berlin deals with “two major conceptions of liberty in the history of idea” (Berlin, 1969, p. ix) I am arguing here that just as there are multiple conceptions of liberty, there are multiple conceptions of human rights. I follow Dworkin and make a distinction between concept and conception (Dworkin, 1977, pp. 134–136; 1986, pp. 71–72).

20

2.2.3.1

K. Yu

The Self-Ownership Conception

When John Locke articulated his ideas of human rights in an age of revolution, his core idea was that human beings are not the property of the king or the state, they have no master except themselves, and the power of the king or the state has to be limited by the rights the people have as individual human beings. The three specific rights that Locke named, i.e. right to life, right to liberty, and right to property, can all be derived from the super-right of self-ownership. As a person is his own master, his life, his liberty, and his property, all belong to him, and it is wrong for anyone to take away from him what properly belongs to him. In the words of John Locke, “every Man has a Property in his own Person” (Locke, 1988, p. 287), and “By Property I must be understood here, as in other places, to mean that Property which Men have in their Persons as well as Goods” (Locke, 1988, p. 383). For Locke, the status of human rights is not mysterious at all. Human rights are a kind of property right. A person owns his life and his body, in the same sense as he owns his other properties. It is remarkable that human rights are taken to be a kind of property right. In this perspective, human beings are seen basically as owners or proprietors. This has far-reaching ramifications, including the shaping of liberalism13 and capitalism.14 It is from this basic idea that a person is his own master or owner that the three basic human rights enumerated by Locke (the right to life, the right to liberty, and the right to property) can be derived. Since I am the master of myself, there is at least one thing that I own, namely, I myself. No one may kill or cripple me. Hence the right to preservation. I own my body. So I may go where I like. Others are not justified to imprison me, to restrict my speech and behaviour, so long as I do not infringe the rights of others. Hence the right to liberty. Since I own my body, what I create by my own labour should also be mine. Hence the right to property. All these three basic rights are based on the idea that a person is his own master. His life, his liberty, and his belongings are all his property. It is no wonder that Locke sometimes puts all three of these things under one general name: “property”.15

13

C. B. MacPherson points out that at the root of classical liberalism is possessive individualism, which regards human beings as owners, starting from an owner of oneself to an owner of external resources: “[T]he difficulties of modern liberal-democratic theory lie deeper than had been thought…. [T]he original seventeenth-century individualism contained the central difficulty, which lay in its possessive quality. Its possessive quality is found in its conception of the individual as essentially the proprietor of his own person or capacities, owing nothing to society for them. The individual was seen neither as a moral whole, nor as part of a larger social whole, but as an owner of himself” (MacPherson, 1962, p. 3). 14 Karl Marx regards Locke’s ideas of individual rights as the basis of modern capitalism: “Locke’s view is all the more important because it was the classical expression of bourgeois society’s idea of right as against feudal society, and moreover, his philosophy served as the basis for all the ideas of the whole of subsequent English political economy” (Marx, 1951). 15 For John Locke, the term “property” is sometimes used in the narrow sense to mean one of the three rights. But sometimes he uses it in the broad sense to cover all the three rights. Property in the narrow sense is called “estate” in the latter case: “their lives, liberties, estates, which I call by the general name – property” (Locke, 1988, Book II, Section 85).

2 Approaches to Human Rights: Concepts, Conceptions, and Controversies

21

As a theory, the self-ownership conception of human rights has considerable merits. Firstly, it involves no metaphysical underpinnings. Talk of rights becomes simply talk of property. Whether we agree with the claim of self-ownership, we certainly do not find it difficult to understand. The nature of human rights is not metaphysical. It is simply a kind of property right. Secondly, the claim is intuitively plausible. The claim that people are their own masters corresponds with our moral judgments that human beings should not be regarded as resources to be used by others, that they should not be treated merely as means, and that there is an intrinsic value in letting people choose their way of life. Thirdly, this conception provides a clear way to distribute power. “To say that each individual is a self-owner is to say that the power to control her and her activities is distributed to that individual and not to anyone else” (Ingram, 1994, p. 26). Every object in the world, whether it is a person or a thing, has an owner to have the final say over its disposal. With this conception of human rights, there is a clear way to settle disputes, and that is to find out who the owner is and seek the approval or agreement of the owner. For example, what should be done with a heritage building? The crucial question is to find out the owner who has the right to decide and then seek to make a deal or agreement with the owner (Yu, 2002, p. 200). However, this conception of human rights may be too narrow in scope (Yu, 2002, pp. 202–204). It mainly supports not taking away from people what properly belongs to them, but it hardly supports providing them with what they should properly have. Rights trump over other talks of mere interests, and rights can only be countered by other rights. If human rights are basically a kind of property right of individuals, then it is quite difficult to explain how property right can be constrained by other rights, such as a right to heritage preservation, if there is such a right.16

2.2.3.2

The Human Dignity Conception

The United Nations’ Universal Declaration of Human Rights (1948) begins with the assertion that “the inherent dignity” and “the equal and inalienable rights” of all members of the human family are “the foundation of freedom, justice, and peace in the world”. Again, in Article 1, it is said, “All human beings are born free and equal in dignity and rights.” The Declaration then goes on to list a number of rights. It seems to hold that various specific human rights can be derived from the inherent dignity of men. In the Preambles to the two International Covenants on Human Rights, it is even directly stated that human rights are “derived from the inherent dignity of the human person.”17 Philosopher Ronald Dworkin also regards the respect of human dignity as 16

For a discussion of a right to heritage preservation, see Ying, Chapter 5, p. 80ff. It is possible to argue for the idea of collective rights. For the discussion here, it is enough to point out the limitations of the understanding of human rights as property rights of individuals. 17 That is, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights. The two Covenants are reprinted in Cranston (1973, Appendix B).

22

K. Yu

fundamental in constituting the foundation of human rights: “Anyone who professes to take rights seriously … must accept, at the minimum … the vague but powerful idea of human dignity” (Dworkin, 1977, p. 198).18 It is quite common among writers on human rights to regard human dignity as a foundational concept from which specific human rights can be derived.19 It can be argued that to live a life below a certain standard is subhuman. In order to uphold the inherent dignity of humans, they should have the right to a minimally decent life. All the specific human rights can be derived from such a basic idea.20 Compared with the self-ownership conception, the human dignity conception can more readily support a range of positive rights. In order to live a life with dignity, the living standard must not be too low. We can call a life carried out at the level of such a standard a minimally decent life. The minimally decent life should be well above the survival level and well below a level which could be described as satisfying or fulfilling. That is to say, it is somewhere between these two levels. In our society, this would mean at least a home and several meals a day. In order to live a minimally decent life, positive acts have to be done to give help to people in need. Even if the government refrains from abuse, social and economic problems (such as poverty, ignorance, disease, discrimination) may still exist to prevent people from living a minimally decent life. If we accept the human dignity conception of human rights, positive rights can be derived as part of human rights. The International Covenant on Economic, Social and Cultural Rights, for example, sanctions the following rights: “adequate food, clothing and housing” (Article 11), “environmental and industrial hygiene” (Article 12), “available and assessable schools” (Article 13), and “to take part in cultural life” (Article 15). Such rights have high relevance and far-reaching implications when we talk about issues on urban controversies. While the human dignity conception can support a much richer understanding of the content of human rights, it has been criticized as unclear in meaning (Macklin, 2003). If it is taken to mean “respect for persons” or “respect of autonomy”, then the scope of rights should not be so broad. But if it is taken to justify a long list of positive rights, then the exact meaning of the term is unclear. If human rights are based on an unclear concept, then it is also difficult to draw the line on what should be included as human rights. And if there is no definite way to exclude some claims to be counted as human rights, then there can be an endless proliferation of human rights.21 If human 18

Dworkin argues that a person who professes to take right seriously must accept two ideas. One is human dignity. The other is political equality. 19 See for example Donnelly (1989, pp. 17–19, Chapter 4 in particular) and Meyer and Parent (1992). 20 James Nickel uses the concept of “decent or minimally good life”, which is clearer in meaning than the expression “human dignity”: “The great range of rights in the Universal Declaration, including privacy, due process, nondiscrimination, and welfare, raises the question of whether any unifying idea ties human rights together. One familiar and helpful view suggests that the idea of a decent or minimally good life for all people is such a unifying concept” (Nickel, 1987, p. 51). 21 For a discussion of the need to control the proliferation of rights claims, see Sumner (1987, pp. 9–10).

2 Approaches to Human Rights: Concepts, Conceptions, and Controversies

23

rights become a wish list, then meeting the requirements of human rights would be quite unattainable, and human rights as a standard or guideline for individual actions or government policy would be quite impracticable and unenforceable.

2.2.3.3

The Human Development Approach

The two rival conceptions of human rights have been most influential in history in shaping the specific rights that are regarded as human rights. While the selfownership conception is theoretically clean and sharp, it is too narrow in scope. On the other hand, while the human dignity conception is less controversial and much more inclusive, it is too vague in meaning. More recently, an alternative approach has been gaining influence and acceptance. It is the human development approach developed by Amartya Sen and Martha Nussbaum for the United Nations Development Programme. This approach sheds light on the scope of human rights as well as the understanding of poverty, at least to the extent that it becomes a human rights issue. This approach is also known as the capability approach, as it sees human capability development as the key to the understanding of human rights as well as poverty. A core part of human rights is the right for the development of human capabilities, and poverty is understood as capability deprivation (Nussbaum & Sen, 1993; Sen, 1999; Nussbaum, 2006; Nussbaum, 2011). Both human rights and poverty are tied to the quality of life. But the quality of life is not one thing but a number of things, and it cannot be measured on one numerical scale. The human development approach holds that quality of life should be defined in terms of human capabilities. It looks at opportunities open to each person and is informed by life stories and the human meaning of policy changes for real people (Nussbaum, 2011, p. 14). In this way, it can recognize pluralistic values and the importance of contextualization. At a bare minimum, an ample threshold level of ten Central Capabilities is required: (1) Life (being able to live a human life of normal length); (2) Bodily health (being able to have good health and have adequate shelter); (3) Bodily integrity (being able to move around freely and safely); (4) Senses, imagination, and thought (being able to sense, imagine, and think in literary, artistic, and scientific ways); (5) Emotions (being able to have attachments to things and people outside themselves); (6) Practical reason (being able to form a conception of the good and planning of one’s life); (7) Affiliation (being able to live with and towards others, having the social bases of self-respect and non-humiliation); (8) Other species (being able to live with concern for and in relation to animals, plants, and the world of nature); (9) Play (being able to enjoy recreational activities); (10) Control over one’s environment (being able to participate in political choices that govern one’s life and to hold property and have property rights) (Nussbaum, 2011, pp. 33–34). The human development approach has certain salient features, which may also be its strengths as well as weaknesses. This approach emphasizes human development rather than basic entitlements or primary goods. As human development has to be contextualized, this approach cannot provide precise guidance that can be applied

24

K. Yu

in all situations. However, its use as a normative outlook cannot be underestimated. As pointed out by Sen, “the capability approach does have considerable ‘cutting power’. In fact, the more challenging part of the claim in favour of the capability approach lies in what it denies” (Sen, 1993, p. 48). This approach also supports a social or communal dimension as well as an individualized understanding of human good. It is hence compatible with a pluralistic conception of human good. Taking that a human is a social being, human development requires capabilities such as “being able to take part in the life of the community” or “being able to appear in public without shame”. Such requirements may vary greatly from one community to another (Sen, 1993, p. 47). As a result, the application of this approach would require not just philosophizing or conceptual reasoning but also empirical study of local or contextual situations. Moreover, as capability is defined as a person’s ability to do valuable acts or reach valuable states of being, human well-being is associated not so much with what they have or what states they are in, but rather the valuable activities they are able to engage in. Consequently, the capability approach makes room for individual differences as well as valuing various freedoms (Sen, 1993, p. 33). The human development approach may not be able to provide clear answers to all the human rights issues. This relates to a methodological point, well noted by Sen: “if an underlying idea has an essential ambiguity, a precise formulation of that idea must try to capture that ambiguity rather than hide or eliminate it” (Sen, 1993, pp. 33–34). What Sen said echoes Aristotle’s advice that we cannot demand greater precision than the nature of the subject allows.22 Nevertheless, accepting the human development approach means that there is an important role for public policy in enhancing people’s capability, as public policy can make a world of difference with regard to people’s capability development.

2.2.4 Human Rights and Ethics in Public Policy In this final section, we are going to answer a number of questions that are commonly raised regarding the application of human rights ideas in the domain of public policy. When is it justified to limit human rights? If human rights are not absolute, then there are some situations under which they can be limited, and what are those situations? Even if human rights are regarded as absolute, there can also be clashes between different kinds of human rights. In such situations, what should be done? To answer this set of questions, we have to go back to the concept of rights. To admit something as a right means that it has a kind of bindingness or overridingness (Dworkin, 1977, p. 90ff; Nickel, 1987, p. 18). In short, when the price to be paid for respecting rights is not inhibitingly high, rights should always be upheld—that 22

Nicomachean Ethics 1094b: “Our account will be adequate if its clarity is in line with the subjectmatter, because the same degree of precision is not to be sought in all discussions…. So we should be content … to demonstrate the truth sketchily and in outline …. It is a mark of an educated person to look into each area for only that degree of accuracy that the nature of the subject permits” (Aristotle, 2000, pp. 4–5).

2 Approaches to Human Rights: Concepts, Conceptions, and Controversies

25

is part of the meaning of being “rights”. In such case, rights can be regarded as “side constraints” or “trump cards”. In general, rights can only be limited when there is great public interest at stake (typically overwhelming and emergent, like public health or public order issues, but not operation inconvenience or offence of public sentiments) or when there is a clash between a right with other rights.23 What are the other kinds of ethical values or moral concerns besides rights? There are a number of commonly accepted values, such as utility (aggregate of individual interests), public health, public order, social justice, sexual values, family values, religious values, solidarity, and social harmony (Yu, 2016, pp. 202–205). Many of such values are commonly shared values in the society. Some social values may be different from one society to another, but they may also be close to the bones of the core morality of the society concerned. Such “values” have prima facie values unless they are proven inconsistent with more fundamental human values (for example, practices such as slavery and torture were supported by social values in the past but were ruled out for any contemporary civilized society), which are based on human nature instead of the makeup of specific societies. They should be treated as respectable values unless proven otherwise. What should be done when there is a clash between human rights and other important values? Given that human rights represent basic standards for treating human beings, they should be respected as far as possible. There are some ways to avoid clashes between human rights and other important social values, such as prioritization, compartmentalization, contextualization, and restriction.24 Even when the clash is unavoidable, we still have to consider proportionality and compensation. For proportionality, we have to consider that the degree of limitation on human rights has to be in proportion to the seriousness of the threat to the social good that is at stake. Human rights must not be sacrificed lightly in the name of public interests. Moreover, even when the enjoyment of the right is suspended for a period, it does not mean that no weighting is given to the right in the decision-making process. To reflect the due respect given to the right, compensation or remedy has to be made afterwards. For example, if for some good reason a flood has to be re-directed to go to the village instead of the city, the people in the village have to be compensated and a remedy has to be made, not as a matter of charity, but as the payment of a debt that is overdue to them. That is the meaning of a claim right.

23

For example, in the case of abortion, there is a clash between the pregnant woman’s right in her own body and the foetus’s right to life. Possible responses include: limiting the foetus’s right to life to those who are beyond a certain stage of development or by limiting the pregnant woman’s right in her own body by setting conditions on legal abortion (i.e. not abortion on demand). 24 For a discussion of the ways to handle clashes of multiple values including clashes between human rights and other social values, see Yu (2016). Prioritization, compartmentalization, contextualization, and restriction (Yu, 2016, pp. 205–208) are more likely ways to avoid clashes, rather than ways to deal with real clashes. For real and unavoidable clashes, proportionality and compensation are crucial in determining what has to be done.

26

K. Yu

2.3 Concluding Remarks The language of rights is indispensable in discourses on the ethics of public policy. It is most useful in delineating side constraints and minimal targets.25 However, not all kinds of worthwhile policy goals can be captured in the language of rights. For people who have shared identities, communal bonds, and collective goals, the mere talk of human rights (directed to the people in the society as separate individuals) may be too impoverished for them.26 But to say this is not to debase the talk of human rights. When a communal bond is no longer recognized, or when harmonious relationships break up, we still have human rights as the final standard of arbitration. In a harmonious society, people may not find it necessary to talk about human rights, but when people are discontented with what they get or how they are treated in the society, the talk of human rights will come to the foreground (Yu, 2005, pp. 75–76). The protection of human rights alone is not able to get them a good society, but it is helpful in stopping the society to degenerate into a very bad or unacceptable one.27 Human rights just represent a fundamental part of ethics. Not all kinds of values, and not all kinds of human values or high-priority goals, can be built under the umbrella of human rights. But to say this is not to belittle the importance of human rights, as they constitute a minimal standard that is not to be compromised.28 Human rights are not sufficient to delineate a good life, but they are useful in formulating minimal standards of decent governance.29

25

In general, human rights can be regarded as side constraints of public policy. Public policy has its own goals, but they can be launched only if they comply with human rights. Positive rights such as a right to minimally decent housing can also be understood as setting a minimal target for housing policy. 26 In the same way, members of a happy and harmonious family may not find it necessary to talk about the rights and obligations of each member, and they may think that trying to be precise with rights and obligations will not do any good to the family. However, when the relation becomes sour, the talk of rights and obligations becomes crucial. The same also applies to other kinds of human relationship, such as friendship. 27 What is said here about human rights can also apply to people’s quest for justice. Michael Sandel regards justice as necessary, even though he regards it as remedial in nature (Sandel, 1982, pp. 169, 183). 28 For a discussion of human rights as minimal morality, see Yu (2005, pp. 65–69) in particular. 29 Rights are different from high priority goals, and the difference consists in the bindingness of rights. “Rights are distinctive not only in their high priority and definiteness but also in their mandatory character. It is these three features - high priority, definiteness and bindingness - that makes the rights vocabulary attractive in formulating minimal standards of decent government conduct. This character would be lost if we were to deconstruct rights into mere goals or ideals” (Nickel, 1987, p. 18). “[R]ights are claimed and exercised in the present. They are not goals for the future and cannot be legitimately withheld” (Nathan, 1987, p. 112).

2 Approaches to Human Rights: Concepts, Conceptions, and Controversies

27

References Aristotle. (2000). Nicomachean ethics. Cambridge University Press. Berlin, I. (1969). Four essays on liberty. Oxford University Press. Brook, T. (2008). Vermeer’s hat: The Seventeenth Century and the dawn of the global world. Bloomsbury Press. Cranston, M. (1973). What are human rights. The Bodley Head. Donnelly, J. (1989). Universal human rights in theory and practice. Cornell University Press. Dworkin, R. (1977). Taking rights seriously. Duckworth. Dworkin, R. (1986). Law’s empire. Fontana Press. Feinberg, J. (1969). The nature and values of rights. The Journal of Value Inquiry, 4, 243–257. Gewirth, A. (1982). The basis and content of human rights. In Human rights: Essays on justification and applications. University of Chicago Press. Haakonssen, K. (1996). Natural law and moral philosophy: From Grotius to the Scottish Enlightenment. Cambridge University Press. Ingram, A. (1994). A political theory of rights. Clarendon Press. Legge, J. (Trans.). (1960). The Shoo King or the book of historical documents. Hong Kong University Press. Liang, Chi-chao. (1986). Xianqin zhengzhi sixiangshi. Zhonghuan Shuju. Locke, J. (1988). Two treatises of government. Cambridge University Press. Macklin, R. (2003). Dignity is a useless concept. British Medical Journal, 327(7929), 1419–1420. MacPherson, C. B. (1962). The political theories of possessive individualism: Hobbes to Locke. Oxford University Press. Marx, K. (1951). Theories of surplus value. Lawrence and Wishart. Mayo, B. (1967). What are human rights. In D. D. Raphael (Ed.), Political theory and the rights of man. Macmillan. Meyer, M. J., & Parent, W. A. (Eds.). (1992). The constitution of rights: Human dignity and American values. Cornell University Press. Nathan, A. J. (1987). Chinese democracy. University of California Press. Nickel, J. W. (1987). Making sense of human rights. University of California Press. Nussbaum, M. C. (2006). Frontiers of justice: Disability, nationality, species. Harvard University Press. Nussbaum, M. C. (2011). Creating capabilities: The human development approach. Harvard University Press. Nussbaum, M. C., & Sen, A. (Eds.). (1993). The quality of life. Clarendon Press. Sandel, M. (1982). Liberalism and the limits of justice. Cambridge University Press. Schneewind, J. B. (Ed.). (1990). Moral philosophy from Montaigne to Kant: An anthology (Vol. 1). Cambridge University Press. Sen, A. (1993). Capability and well-being. In M. C. Nussbaum & A. Sen (Eds.), The quality of Life (pp. 30–53). Clarendon Press. Sen, A. (1999). Development as freedom. Anchor Books. Stein, P. G. (1988). Roman Law. In J. H. Burn (Ed.), The Cambridge history of political thought c.350–c.1450 (pp. 37–47). Cambridge University Press. Sumner, L. W. (1987). The moral foundation of rights. Clarendon Press. Tuck, R. (1979). Natural rights theories: Their origin and development. Cambridge University Press. Wang, Gungwu. (1991). Power, rights, and duties in Chinese history. In The Chineseness of China (pp. 165–186). Oxford University Press. Yu, K.-P. (2002). Self-ownership and its implications for bioethics. In J. Tao (Ed.), Crosscultural perspectives on the (im)possibility of global bioethics (pp. 197–208). Kluwer Academic Publishers. Yu, K.-P. (2005). Human rights and cultures. In L. Kühnhardt & M. Takayama (Eds.), Menschenrechte, kulturen und gewalt (pp. 65–76). Nomos.

28

K. Yu

Yu, K.-P. (2015). The Chinese tradition of filial piety and the Confucian philosophical reconstructions. Bochumer Jahrbuch zur Ostasienforschung, 38, 145–160. Yu, Kam-por. (2016). Social values, public policy, and citizenship. In B. Yung & Kam-por Yu (Eds.), Ethical dilemmas in public policy: The dynamics of social values in the East-West context of Hong Kong (pp. 197–212). Springer. Yu, Kam-por. (2020). The ethics of land and housing. In B. Yung & Kam-por Yu (Eds.), Land and housing controversies: Perspectives of justice and social values (pp. 223–239). Springer. Yu, Kam-por, & Göbel, M. (forthcoming). Living up to one’s share: A comparison between a Western concept of human rights and the Chinese ethical concept of fen. In G. Bos et al. (Eds.), Human dignity in philosophy and applied ethics—China and the West. Cambridge University Press.

Part I

Conflict of Rights in Urban Issues

Chapter 3

Sub-Divided Units: Property Rights and Market Versus Right to Housing Betty Yung

Abstract Sub-divided units in Hong Kong arise out of the market logic. On one hand, their emergence may be regarded as a property-right-centred market ‘solution’ to housing unaffordability, with the landlords exercising property rights to the extent of evading building regulations for economic gains in response to market ‘demand’ for low-end housing. On the other hand, sub-divided units seem to pose a societal problem when viewed from the perspective of ‘right to housing’ which essentially comprises various dimensions and incorporates the concept of ‘equal right to housing’. Such sub-divided unit issues pose two dilemmas: (a) Strict legal enforcement of building regulations may result in rent increase, thereby aggravating housing unaffordability; (b) Strict legal enforcement of ‘right to housing’ will tend to outlaw sub-divided units, thereby leading to the emergence of ‘black market’ or making the dwellers homeless in view of the difficulty of imminent mass rehousing of such dwellers. The long-term alleviation of such housing issue requires a ‘softer’ approach: (a) substantively implement the positive housing right through the provision of public rental housing and third sector housing to rehouse the sub-divided unit dwellers in decent accommodation; (b) substantively and legally enforce negative housing right, with the citizens, landlords and housing practitioners refraining from housing discrimination, especially towards the ‘doubly deprived’ low-income disadvantaged minority groups. Confucian perspectives on government’s role in relation to basic needs, care for others, profit-making among others will be used to enrich such discussion on the issue of sub-divided units.

3.1 Introduction In the midnight of January 29, 2010, the front portion of a more than 50-year-old 5-storey tenement building, situated in an old district (To Kwa Wan) of Hong Kong, in Ma Tau Wai Road, collapsed, causing four deaths (Building Department, 2010; Ng, 2012). Though the repair and the removal works on the ground floor, without B. Yung (B) Department of Public and International Affairs, City University of Hong Kong, Hong Kong, China e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 B. Yung et al. (eds.), Rights and Urban Controversies in Hong Kong, Governance and Citizenship in Asia, https://doi.org/10.1007/978-981-99-1272-8_3

31

32

B. Yung

appropriate stabilizing measures, that commenced a few days before the collapse, acted as the ‘last straw that broke the camel’s back’ (Building Department, 2010; Ng, 2012) and triggered off this tragedy, building alternations in the form of sub-dividing whole flats into small sub-divided units in all upper floors (Building Department, 2010), adversely and profoundly affecting the building health and safety, further exacerbated by the lack of proper building maintenance and management, might underlie the dynamics that eventually led to such disastrous episode. Responding to the public apprehension with building safety in relation to sub-divided units, the 2014 Policy Address1 highlighted that the ‘Government is very concerned about the safety issues relating to sub-divided units used for domestic purposes’ (The Hong Kong Government, 2014, Para. 147), stepping up inspection, enforcement action, prosecution actions in relation to sub-divided units, especially those in industrial buildings (Ibid.). It is estimated that there are 100, 943 sub-divided units in domestic/composite buildings in 2020 (Transport of Housing Bureau, 2021). This figure is an underestimation of the building sub-division problem in Hong Kong as it does not take into consideration sub-divisions within a factory and other types of buildings which are believed to be rampant. The proliferation of sub-divided units may be considered a market response to the housing plight in Hong Kong. The rent increase in the private market makes private housing increasingly unaffordable, especially to the low income. The rent index of private housing increases from 95.4 in 2009 to 200.1 in 2019, doubling in ten years’ time. Such private housing rent index increase is much greater than the corresponding increase in median household income (69.05%2 ). In view of the unaffordability of private housing, the low income can apply for public rental housing (PRH). However, the waiting time for PRH keeps increasing in recent years and the waiting list is long. In March 2022, the average waiting time for general applicants for PRH is 6.1 years and there are 245,200 applications on the PRH waiting list. The crux of the problem concerned is the insufficient private and public housing supply, reflecting the deep-rooted underlying meagre land supply, especially spade-ready land supply, being insufficient to satisfy not merely the ever-growing residential landuse needs, but also that of other commercial, recreational, infrastructural needs among others. In light of the fact that private rental housing becomes increasingly unaffordable and it is ever more difficult to be allocated PRH as well, sub-divided units arise as a market niche being comparatively more ‘affordable’ (by being tiny) than whole-flat-renting and acting as stop-gap housing for those waiting or not eligible for PRH. This low-end housing provision for the low income and marginalized groups (who trade-off ‘affordability’ with housing quality) constitutes a market response, however inadequate it may be. It is posed as a better-than-nothing scenario that works in accordance with the market logic, craving its market position and niche (in meeting market demands for low-end housing with its provision 1

According to Article 64 of the Hong Kong Basic Law, the Hong Kong Government ‘shall present regular policy addresses to the [Legislative] Council’. It is the usual practice that the Chief Executive will make the address annually, outlining government’s future policies. 2 The median household income increases from $21,000 in 2009 to $35,500 in 2019.

3 Sub-Divided Units: Property Rights and Market Versus Right to Housing

33

of at least some non-shared amenities and facilities) within the aggregate housing provision in Hong Kong, including both public and private housing sectors. Though the exact number of cases of illegal sub-dividing is not clear, it is believed that it is significantly widespread due to the ‘toleration policy’3 of unauthorized building structures (Yau & Chiu, 2015) in general and the especially difficult enforcement actions against sub-divided units due to the high transaction cost, with subdivided unit dwellers tending to deny access of public officials into the target building for inspection for fear of losing their current accommodation (Yau & Lau, 2018), thereby greatly capitulating the enforcement capacity against illegal sub-division, particularly in view of the lack of resources for building inspection (Yau & Ho, 2017). The issue of removal or reinstatement orders to handle building sub-division, on the part of the Buildings Department, is like a ‘drop in the sea’ in view of the increased demand for sub-divided units which is like ‘undistinguishable fire’ due to unaffordable private housing and insufficient supply of PRH. Building sub-division extends beyond residential buildings and proliferates into factory buildings which are further complicated by inappropriate landuse in addition to the illegal sub-division.

3.2 Discussion 3.2.1 Background HongKongers are familiar with the term ‘sub-divided units’ in recent decades. However, those residing outside Hong Kong may not know precisely what it refers to. What exactly does it mean in Hong Kong context? In reality, sub-divided units are not defined legally in the Buildings Ordinance of Hong Kong (Development Bureau, 2012). They are commonly used in Hong Kong society when a domestic flat is sub-divided into two or more self-contained smaller units, usually for rental purposes (Ibid). Each of these smaller housing units generally has its own toilet; with some also have its own cooking place (Ibid.). Such sub-division often involves the destruction of existing partition walls and the setting up of new ones, placement of new additional electrical wirings, modification and extension of water and drainage system for the building of additional toilets within the sub-divided units (Ibid.). Also, the original floor slab may have to be raised so as to allow the embedment of the additional or diverted pipes related to sub-division (Ibid.). All these may increase the loading of the building, causing building health and safety concerns, adversely affecting the well-being not only of the dwellers, but also the passerby, the neighbourhood as well as the community at large. Under the Building (Minor Works) (Amendment) Regulation 2012, effective on October 3, 2012, building works associated with sub-divided units are included in 3

There is lax legal enforcement against unauthorized building structures and many such structures are ‘tolerated’ in practice, in view of the limited capacity, on the part of the Buildings Department, to handle the issue (Yau & Chiu, 2015).

34

B. Yung

the Minor Works Control System such that these sub-dividing works are required to be undertaken by qualified professionals and contractors, ensuring that the building alteration works are not in contravention of the Buildings Ordinance and other regulations which specify the building design in various aspects, including fire safety, structural safety and drainage works (News.gov.hk, 2012). It is estimated that there are more than a hundred thousand sub-divided units in private domestic/composite buildings (Transport & Housing Bureau, 2021), without including those in a factory (and other types of) buildings. Though the proportion of illegality and the degree of violation (of the Building Ordinance and other regulations) of these building subdivisions are unknown, it is reasonable to suspect that the extent is quite prominent, given the widespread reporting of sub-standard conditions in sub-divided units, such as lack of window, narrow or blocked fire escape route among others. The problems related to illegitimate sub-dividing is magnified by the situation that the majority (81.9%) of the sub-divided units are situated in an old building aged 50 or above (Transport & Housing Bureau, 2021) which may display various form of building deterioration with ageing. This is further worsened by improper building management and maintenance. About half (46.5%) of sub-divided units are found in buildings with neither owners’ organization nor property management company, while more than one-third (36.7%) of them are in buildings with owners’ organization but without property management company (Ibid.). Who dwells in such deprived housing conditions within these sub-divided units? They include mostly non-elders, the low income and households with Mainland New Arrival member(s), with comparatively more ethnic minority households. Most of the sub-divided unit dwellers are children and young to middle-aged persons, with only 8.2% of them aged 65 or above (Census & Statistics Department, 2016a, 2016b, 2016c, 2016d), presumably because elders are prioritized in public rental housing allocation in Hong Kong. Thus, many elders of modest backgrounds would have been allocated public rental housing rather than continue to dwell in sub-divided units. Most of the dwellers in sub-divided units are low-income earners, with a median monthly income of $9,250, much lower than that ($15,000) of the general working population in Hong Kong in 2016 (Census & Statistics Department, 2016a). Most of them are service and sales workers (36.5%) or are engaged in elementary occupations (26.6%) (Census & Statistics Department, 2016a, 2016b, 2016c, 2016d). Nearly half (42.2%) of those working population living in sub-divided units work in the same district of residence (Ibid.), presumably reflecting their trading of convenience and connectivity of residing in centrally located districts (where many sub-divided units are located) for generally poorer housing condition of sub-divided units (as compared to elsewhere in more distant districts). About a quarter (25.6%) of households living in sub-divided units consist of at least one household member who is a Mainland New Arrival (having resided in Hong Kong for less than 7 years) (Ibid.), much higher than that (4.7%) of the general Hong Kong households in 2016 (The Government of Hong Kong SAR, 2018), apparently because of the residence requirement in the allocation

3 Sub-Divided Units: Property Rights and Market Versus Right to Housing

35

of PRH in Hong Kong.4 About 87.1% of those who dwell in sub-divided units are Chinese, with 12.3% of them are ethnic minorities (especially South Asians [6.5%]) (Census & Statistics Department, 2016a, 2016b, 2016c, 2016d), which is higher than that (3.6%) of the whole Hong Kong population in 2016 (The Government of Hong Kong SAR, 2017a, 2017b, 2017c). This may be partly attributed to the comparatively low income earned by many South Asians in Hong Kong, for example, the median income of Nepalese, Pakistani and other South Asians are $14,500, $12,800 and 13,320; all lower than the median income of the whole working population ($17,000) in 2016 (Census & Statistics Department, 2016b).

3.2.2 ‘Right to Housing’ in Relation to Sub-Divided Units The United Nations International Covenant on Economic, Social and Cultural Rights (CESCR) (1966) states, “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing…..’ (United Nations, 1966). The ‘right to housing’ is a socio-economic right fundamental to one’s (and his/her family’s) basic standard of living and well-being. CESCR General Comment No.4 further defines the ‘adequate housing’ in relation to different aspects, namely, legal security of tenure; availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility; location and cultural adequacy (Office of the High Commissioner for Human Rights, 1991). Such characterization of ‘adequacy’ in housing and ‘right to adequate housing’ overlap and are in concordance with Yung and Lee’s (2012) outline of five different dimensions of ‘right to housing’, namely, 1) the right to adequate housing; (2) the right to affordable housing; (3) the right to enjoy one’s housing without unjustified interference; (4) not subject to arbitrary forced eviction; (5) the right of choice in relation to the decision to rent or homeownership as well as over which neighbourhood to dwell in. The ‘right to housing’ is also related to ‘equality’, which encompasses the equal opportunity to have different dimensions of ‘right to housing’ satisfied, forming the essence of ‘equal right to housing’ (Yung & Lee, 2014). Such ‘right to housing’ necessitates positive and negative duties on the part of the government, non-state entities and the public. Positive duties include the duty to fulfil (Dafel, 2013), such as setting up an enabling framework and the commitment of resources, on the part of the government, to realize housing rights (e.g. by housing provision or monetary support to satisfy housing needs). This conception of the indispensable duty of a government to fulfil basic needs, including housing needs, is not just limited to modern and Western thinking. Confucius, a classical Chinese philosopher and thinker, also suggests that the government should ensure that people are fed, sheltered and prosperous; after achieving this, it should think of educating the 4

At the time of allocation of PRH, at least half of the household members must have lived in Hong Kong for 7 years (Hong Kong Housing Authority, 2019).

36

B. Yung

people to be moral (Sim, 2013; Analects 13.9) Negative duties include refraining from disturbing others’ right to enjoy one’s housing, arbitrary eviction, especially, on the part of landlords, as well as housing discrimination, on the part of the government in housing policy-making, private landlords in their selection of tenants and the general public as neighbours (Yung & Lee, 2012, 2014). If the ‘right to housing’ is a constituent part of well-being of an individual and his/her family, we will examine to what extent such right of dwellers in sub-divided units is infringed. We try to explore this from 4 perspectives: Habitability and safety, Affordability, Asymmetry in landlord-tenant relations as well as Neighbourhood and accessibility. Habitability and safety: The sub-divided unit dwellers live in a cramped space. The median floor area of the sub-divided units is 10.3 m2 (Census & Statistics Department, 2016c). The average area per capita is 5.8 m2 (Ibid.) which will be considered overcrowding by the allocation standard for PRH (internal floor area not less than 7 m2 per person) (Hong Kong Housing Authority, 2019). Because of illegal sub-dividing, many of such sub-divided units may not meet the legal requirements concerning structural integrity, fire safety, lighting and ventilation, especially with the lack of openable windows (Cheung & Jim, 2019; Yau & Ho, 2017), posing physical, fire and health risks. Around at least half of sub-divided unit households are not satisfied with the natural lighting (60.9%), air-circulation (49.9%) and hygiene conditions in general (50.7%) of their subdivided unit (Transport & Housing Bureau, 2021). Many such households even face repair and maintenance issues, with 33.2% of them having water seepage problem and 25% of them encountering concrete-spalling problem (Ibid.). Fire safety in sub-divided units is also a serious concern, with fatal fires happening in buildings with such illegal units in recent years (Yau & Ho, 2017) ---39.1% of the sub-divided unit households are not satisfied with the fire escape route and 28.9% of them are dissatisfied with the fire safety installation in the building (Transport & Housing Bureau, 2021). Illegal sub-division for residential uses within non-domestic properties, such as industrial premises, may not be suitable for or even dangerous for human dwelling. This also further contravenes the land lease control (Yau & Yip, 2022). Thus, the ‘right to housing’ of the sub-divided unit dwellers may be threatened by the limited habitability and safety levels of their inadequate housing, with many of them not meeting the legal building standards and requirements. Affordability: Housing affordability is another great issue and concern for subdivided unit dwellers. Though the total rental of sub-divided units may be comparatively lower than whole-flat-renting in other types of private domestic properties because of the smaller total area and the poorer housing quality, the rent as compared to household income and per unit area for dwellers in the sub-divided unit are alarmingly high. The rent per unit area of the sub-divided unit is comparatively higher than that of other domestic housing units, even though the housing quality is much lower and with safety concerns. The median monthly rent per m2 for sub-divided units is $417, much higher than the average monthly rent per m2

3 Sub-Divided Units: Property Rights and Market Versus Right to Housing

37

of a domestic flat under 40 m2 in New Territories ($301) and Kowloon ($368) in November 2020 (Transport & Housing Bureau, 2021). The monthly rent accounts for a substantial part of the monthly household income of the sub-divided unit households, taking up to around a third (Ibid.). The rent/income ratio is even up to 45.0% for a household size of 3 living in sub-divided units of floor area below 7 m2 (Ibid.). These sub-divided unit households often face the threat of rent increase---for those who had their rental adjusted, 75.6% have a rent increase and the median rate of increase was 7% (Ibid.). Sometimes, the sub-divided unit dwellers cannot cope with the drastic rent increase and they survive by moving to other housing units, often of lower quality and poorer living environment, that charge comparatively cheaper rental; thus, only 56% of the sub-divided unit have been residing in the current housing unit for more than 2 years. Sub-divided unit dwellers often downsize or downgrade their housing conditions when further downward adjustment of non-housing necessities is not feasible so as to make rent more ‘bearable’ (Leung et al., 2022). On top of rent, many sub-divided households face the problem of overcharging of water and electricity, on the part of the landlord, as compared to the tariff rates charged by the power companies and Water Supplies Department (Government of Hong Kong SAR, 2017a; Government of Hong Kong SAR, 2017b). Thus, on the whole, the housing affordability as an important dimension of ‘right to housing’ of these sub-divided unit dwellers may not be fully respected, with such dwellers facing a great housing burden and related charges, often with home-moving as the coping strategy in face of unbearable rent increase. Asymmetry in landlord-tenant relations: The sub-divided unit tenants may not have full and legal protection against the landlord, with weak bargaining power due to the lack of ‘real’ alternatives, reflecting asymmetrical landlord-tenant relations, threatening the security of tenure of the sub-divided unit dwellers. Though most (85.2%) of the sub-divided unit households have written tenancy agreements, only 46.4% of them have the agreement stamped, with stamp duty paid, to have full legal effect and protection (Transport & Housing Bureau, 2021). Many of such tenancy agreements have ‘incomplete’ content, with only about half (50.9%) of them stating the tenancy period, only one-third (33.9%) of them specifying the notice period for termination of tenancy and even as low as 18.2% and 16.2% stipulating the rent increase magnitude and arrangement for tenancy renewal respectively (Ibid.). Without full legal protection, such tenants may be subject to unreasonable demands and requirements, on the part of the landlords, such as unbearable rent increase and ‘forced’ eviction with short notice among others. These sub-divided unit households have no ‘real’ alternatives in view of limited supply of genuine better substitutes in the form of PRH and third-sector housing. Thus, when facing unfair demands of the landlords, essentially constituting ‘forced’ eviction, such sub-divided unit households have no ‘real’ choice, but to search for other available sub-divided units, perhaps of even lower quality and poorer environment, for home-moving, though with no guarantee of future just treatment. Thus, the asymmetrical landlord-tenant relation in sub-divided unit tenancy leads to the lax guarantee of security of tenure, an indispensable

38

B. Yung

component of the ‘right to housing’, with easy ‘forced’ evictions imposed onto the sub-divided unit tenants, leading to instability and insecurity. Neighbourhood and accessibility: Most (76.2%) of the sub-divided units are located in centrally located areas in Hong Kong, with the majority (62.2%) found in Kowloon and 14.0% situated in Hong Kong Island (Transport & Housing Bureau, 2021). Only a minority (23.9%) of them are sited in the more outlying districts of New Territories (Ibid.). Thus, dwelling in sub-divided units may have the advantage of high accessibility and connectivity by being located in districts near the city centre. In fact, being convenient to go to work/school is one of the important reasons for a significant (36.3%) proportion of sub-divided unit households ‘choosing’ to live in such units (Census & Statistics Department, 2016c), given that living in more outlying districts may imply a comparatively lower rent and better living environment. Even within the same district, individual sub-divided units are located at different relative distances to different facilities within the district and proximity to schools is a primary concern for sub-divided unit dwellers (Hui et al., 2018). Sub-divided unit tenants have to pay more for living closer to the Mass Transit Railway station, often trading accessibility at the expense of housing size and quality (Leung & Yiu, 2022). Many sub-divided units are situated very near to semi-obnoxious facilities (such as shopping, market) and the rent of the sub-divided units tends to be positively related to distance from such facilities (Ibid.). Many of the sub-divided unit dwellers may have reluctantly ‘accepted’ the undesirable effects of living nearby such facilities in exchange for lower rent, some convenience and desirable amenities gained from such facilities which in reality may reflect a lack of ‘real’ choice of choosing otherwise. Generally, though most of the sub-divided units are found in the old buildings of Hong Kong, with far from desirable housing conditions, most of these old buildings are concentrated in the districts developed in the early history of the city, being centrally located near the city centre. Thus, such sub-divided unit dwellings may be favourably assessed in certain aspects of ‘right to housing’, namely, accessibility and location. On the whole, dwelling in sub-divided units seems not only poses a problem for individual dwellers, adversely affecting their economic situation and physical and mental health but also creates a societal problem when viewed from the perspective of ‘right to housing’ which essentially comprises various dimensions, namely right to adequate, affordable housing, security of tenure among others. Such right also involves the concept of ‘equal right to housing’, with those low-income marginalized groups, such as ethnic minorities, Mainland New Arrivals, being doubly deprived, with an even narrower scope of housing choice because of housing discrimination (Yung & Lee, 2014). In fact, dwelling in sub-divided units may involve trade-offs among different housing dimensions, namely, housing quality and environment, affordability, convenience as well as accessibility, with the sub-divided unit dwellers having a limited scope of choice of deciding otherwise since other options may be

3 Sub-Divided Units: Property Rights and Market Versus Right to Housing

39

even worse, constituting ‘fake choice’ (Yung & Leung, 2020) in view of the escalating rent of private housing as well as a limited supply of PRH and third sector housing as alternatives.

3.2.3 Property Rights, Ownership, Market and Related Ethics According to Brettschneider (2012), private property can be conceived as a bundle of rights. Private property rights involve ‘vertical’ rights of ownership, specifying the relationship of the owner to the resource that is owned, including the right to trade it, manage it, use it for producing more resources (including the generation of income) or even choose not to use it (Ibid.). There is also a ‘horizontal’ dimension for rights of ownership which is related to the relationship between the owner and other citizens, which essentially implies the right to exclude non-owners from seizing one’s property and intervening into one’s decisions concerning one’s property (Ibid.). Thus, private property rights necessitate both a legal framework and a social institution for its successful implementation and enforcement, administering and guaranteeing both the ‘vertical’ and ‘horizontal’ rights of ownership. Applying the concept of ‘property rights’ to the context of sub-divided units, it seems that the landlord (as owner) will have full control over his/her housing unit. From the perspective of ‘vertical’ rights of ownership, with the right to trade (including renting), the right to manage his/her property and the right to use it for future gain and income, the landlords ‘seem’ justified to sub-divide their flat for generation of more rental income for profit and gain since they have a property right, thereby control over their housing. From the viewpoint of ‘horizontal’ rights of ownership, the landlord as the owner has the right to exclude others from the property, including ‘evicting’ the sub-divided unit dwellers, especially if they cannot afford a substantial rent increase. From the above analysis, we can see that there is a conflict of ‘rights’ related to the issue of sub-divided units. On one hand, the emergence of sub-divided units in Hong Kong may be regarded as a property-right-centred market ‘solution’ to housing unaffordability, with the landlords exercising property rights, even to the extent of evading building regulations, for economic gains in response to market ‘demand’ for low-end housing. On the other hand, sub-divided units seem to pose a societal problem when viewed from the perspective of the ‘right to housing’, with the housing rights of the sub-divided dwellers being seriously threatened in terms of housing inadequacy, housing unaffordability, insecurity of tenure among others. In short, there is a clash between the respect of property rights, on the part of the landlord, and the guarantee of the ‘right to housing’, on the part of the sub-divided unit dwellers as human beings, constituting a tricky urban controversy.5

5

This controversy may be more apparent than real if one holds that there is no unlimited freedom and right to use one’s property even though one owns it, for example, subjected to the limit of

40

B. Yung

The seriousness of such conflict between property rights and the ‘right of housing’ in the context of sub-divided unit assumes an absolutist view of property which holds that property rights are absolute, irreducible, unqualified and inviolable (Gray, 2007), with the landlord as an owner having the freedom to act upon his/her property without many constraints. In fact, the relativist perspective of property rights has gained more widespread acceptance (Ibid.). Such relativist perspective views property rights as not absolute, but rather ‘qualified entitlements that are constantly redefined in accordance with social context, muted by reference to community-directed obligation and subjected to significant requirements of reasonable user’ (Gray, 2007, p. 1200), with both rights and responsibilities integrated in the case of property-owning (Ibid.). According to Honoré (1961), full ownership, implying having property rights includes the right to (a) possess, i.e. having exclusive control; (2) use; (3) manage; (4) the income generated from the property; (5) the capital, i.e. the power to alienate, consume, even waste or destroy the property; (6) security, i.e. immunity for expropriation; (7) the duration of ownership; (8) the prohibition of harmful use and (9) liability to be taken away in case of insolvency. By integrating the relativist perspective of property and Honoré’s idea of ownership, besides a bundle of rights, sub-divided unit landlords, though have rights over the property, also have associated duties and responsibilities, especially in regard to the limitation on harmful use of the property for gains and profit. There is similar thinking in the Asian context. Confucius does not disallow gaining wealth and high position as long as it is attained through moral means (Chan, 2010). In Analects of Confucius: In the eating of coarse rice and the drinking of water, the using of one’s elbow for a pillow, joy is to be found. Wealth and rank attained through immoral means have as much to do with me as passing clouds. (7.16; Lau, p. 61) If wealth were a permissible pursuit, I would be willing to act as a guard holding a whip outside the market place. If it is not, I shall follow my own preferences. (7.12; Lau, p. 59)

Thus, there is the idea of legitimate use of property and appropriate means of gaining profit and wealth both in the Western and Eastern contexts, showing disapproval for those immoral means, especially disregarding the interest and well-being of others. Just as there are proper uses of cars in relation to car ownership, there are also proper and appropriate approaches to deal with uses and the way of handling properties in regard to property-owning. A car owner cannot drive his/her car without a driving license, at a speed above the speed limit of the road, in a way that endangers the pedestrians and other car users on the road. Similarly, a property owner is not absolutely free to manipulate the property in any way s/he likes, but is subject to legal and building regulations and requirements, especially when sub-dividing the property into smaller units, so as to ensure the safety of the dwellers, commuters in street and society at large. With such building requirements in sub-division fulfilled, the ‘right to housing’ of the sub-divided unit dwellers will not be infringed, while simultaneously bringing financial gains in form of rental income to the landlord. That non-harmful and moral use, among others. This will be further examined in the discussion in the following part.

3 Sub-Divided Units: Property Rights and Market Versus Right to Housing

41

is, the building regulations relating to building sub-division serve as a limit to property rights, constraining the freedom to manage, control and use of property in any way the owner likes to the detriment of the other individuals and parties in society, especially the sub-divided unit dwellers, representing a balance struck between the property rights of the landlord as owner and the ‘right to housing’ of the dwellers. In the real-life situation of sub-divided units in Hong Kong, there is lax enforcement of building regulations, essentially implying a ‘toleration’ policy (Yau & Chiu, 2015) which gives rise to the proliferation of illegal building sub-divisions, such that the landlords are gaining more than legitimate profits out of such building subdivisions that are often below the legal and building requirements, while the ‘right to housing’ of the dwellers are threatened, arousing safety, fire and health concerns. Yes, illegal sub-dividing, on the part of the landlords for profit maximization to the detriment of the dwellers, should undeniably be blamed. Yet, the behaviour of these landlords is merely responding to the housing situation in Hong Kong in a marketoriented way amidst a lax building law enforcement environment, squeezing their way through such gaps. To fundamentally solve the complex problem sub-divided units, it requires a multi-facet approach and multi-prong solutions, well beyond that of mere expectation of a ‘good change of heart’ of these landlords (though this is morally imperative). The following is an analysis of the feasibility of different policy options and approaches. While the ‘toleration’ policy of sub-divided units may be attributed to the lack of enforcement capacity and resources (Yau & Ho, 2017), it involves an underlying dilemma. More rigorous and stricter legal enforcement of the building standards while ensuring that the sub-divisions are up to safety, health and other requirements, thereby ensuring the housing quality of the sub-divided units and ensuring the ‘right to housing’ of the dwellers, will in the end lead to the increase in rent, aggravating the housing affordability problem. In short, such sub-standard housing associated with illegal sub-divided is all that the low income can ‘afford’, even with much difficulty, in the present private housing market. If they can afford other better housing, they may have chosen to live elsewhere already. One may argue that renting sub-divided units is a market exchange. It reflects the ‘willingness’, on the part of the sub-divided unit dwellers, to pay such price (monetary and non-monetary) or rent level to live in such housing conditions, though many perhaps, maybe deprived ones. That is, the emergence of sub-divided unit supply is a market response to the demand for low-end housing that has some unshared facilities and is located in centrally located districts, yet more ‘affordable’ than whole-flatrenting. It reflects the ‘readiness’ and ‘voluntariness’ of these low income sub-divided unit households to pay to live in such housing conditions, which may be in many ways ‘better’ than cage homes, coffin homes, board-partitioned rooms, with shared facilities. That is, it is their ‘choice’; they ‘choose’ to live in sub-divided units. Yet such ‘willingness’ and ‘choice’ have to be understood against the background of the lack of any desirable alternatives, merely having a ‘fake’ choice (Yung & Leung, 2020), with all the other feasible options tending to be bad, often even worse, such as coffin homes, board-partitioned rooms, in non-self-contained housing units, with shared facilities among others. Desirable alternatives, for example, PRH

42

B. Yung

involves long waiting time and some marginalized groups such as gay couples are not eligible for PRH application (Yung & Lee, 2014), while third sector housing, though with the livable environment, is in short supply when compared to the great number of households dwelling in inadequate housing, hoping for rehousing. In 2020 Policy Address, the Chief Executive of the Hong Kong SAR government indicated that the ‘government has identified land for the provision of 13 200 units of transitional housing6 in total for the coming three years, falling short of the target of 15 000 units by 12%’ (Para. 92). This supply of transitional housing is extremely meagre when compared to100,943 sub-divided units in domestic/composite buildings in 2020 and 253,800 applications on the PRH waiting list. As for whole-flat renting in the private housing market, it is beyond the affordability of these low-income sub-divided unit households and they would have done so if this is really feasible and affordable to them and would not ‘choose’ to live in sub-standard housing, with their ‘right to housing’ profoundly threatened. Looking from another perspective, if we hold that the ‘right to housing’ is important and significant, why not we have a rigorous and strict legal enforcement of the ‘right to housing’, outlawing all those sub-standard housings that do not meet the ‘right to housing’ standards, thereby ensuring the housing rights of the citizens are protected. This will lead to another dilemma: outlawing all those housing not meeting ‘right to housing’ standards may be a well-intentioned act, yet may lead to the evil effects of making a substantial number of people homeless, an even greater threat to housing rights. This is because imminent massive rehousing of those dwelling in inadequate housing, including many sub-divided units, may not be possible and feasible in the light of the fact that sudden increase in supply for PRH and third sector housing for rehousing is unachievable, given the short land supply and the building time needed. Any attempts to outlaw and eradicate such sub-divided units and other forms of inadequate housing, without appropriate rehousing, will lead to the rise of the black market for illegal forms of housing provision that may involve even less protection for the residents, with a constant threat of detection, exploitation and eviction, posing even greater instability and insecurity. Thus, outlawing sub-divided units may be a benign and well-intentioned act, with various unplanned consequences which may even pose a greater threat to the ‘right to housing’. Thus, it is the ‘Government policy not to eradicate all sub-divided flats but to ensure their safety. According to the Government, there are views in the community that such flats have an existence value as they could provide affordable accommodation to low-income groups who are not eligible or are waitlisted for PRH but wish to live in an urban area close to their place of work and/or their children’s place of study’ (Legislative Council Secretariat, 2013, p. 1). The CESCR (1966) recognizes the ‘achieving progressively the full realization’ of the social, economic and cultural rights (Article 2). Rather than drastically enforcing 6

Transitional housing is a form of third sector housing. It is targeted for households who have waited for PRH for quite some time to move to transitional housing and eventually ‘transit’ into PRH. The transitional housing projects are often proposed and operated by NGOs, assisted and facilitated by Task Force on Transitional Housing of the Government (Transport and Housing Bureau, 2012).

3 Sub-Divided Units: Property Rights and Market Versus Right to Housing

43

the ‘right to housing’ by outlawing sub-divided units, having disastrous side-effects of making many homeless in face of the impracticality of immediate massive rehousing, we may aim at ‘progressively’ replacing sub-divided units, especially those involving illegal and inappropriate sub-division, with better housing types that are affordable, livable and in line with ‘right to housing’. Such progressivity needs to take into consideration the land resources available, and the time needed for the building and planning of alternative housing among others. Above all, there need to be a vision and plan as well as enough courage, on the part of the government, to tackle the subdivided unit issue progressively in the direction of satisfying the ‘right to housing’ standards, with a clear timetable and action plan.

3.2.4 Urban Governance–Any Way Out of the Housing Dilemmas? If drastic measures such as rigorous and strict legal enforcement of building regulations and ‘right to housing’ may lead to some undesirable side-effects which may infringe housing rights in other ways and progressive realization of ‘right to housing’ seems more favourable, feasible and realistic, what will be the appropriate way out? The new Ordinance related to tenancy and rent control of sub-divided units took effect on January 2022, stipulating the requirement of a 4-year tenure protection, limitations on rent increase, disallowance of charging non-permitted money and charges as well as the submission of a notice of tenancy to the Rating & Valuation Department (News.gov.hk, 2022). While this in a way may be a corrective and alleviative measure for the asymmetrical power relations between the sub-divided unit landlord and tenant on one hand, it may be regarded as a ‘formal recognition and acknowledgement’ of the existence of the numerous existing illegal sub-division of housing units on the other hand. The latter can be viewed from the requirement that the sub-divided unit tenancy needs to be officially filed with the government, implying the taking a new more ‘active’ step further (through giving ‘formal admission of existence’ to illegal sub-division) than the long-standing relatively passive ‘toleration policy’ through non-enforcement of building regulations. This may to a certain extent imply the acceptance of illegal sub-division as a ‘necessary evil’ that cannot be tackled and eliminated within a short period of time and the tenancy control measures are intended to ‘manage’ and ‘regulate’ the evilness of the problem. Though tenancy and rent control may be well-intentioned, aiming at minimizing landlord abuses of the sub-divided unit tenants, we need to wait and see whether accompanying side-effects (such as landlord charging high initial rent, being more selective in tenant selection, being more reluctant towards housing maintenance among others) are prevalent. The tenancy and rent control policy is at best minimally palliative for the symptoms of the sub-divided unit problem rather than being a genuine cure for the root issues. This has to be accompanied by longer term solutions.

44

B. Yung

The crux of the sub-divided unit problem lies in the availability of ‘genuine’ alternatives to such sub-divided unit dwellers. If PRH is available to the sub-divided unit households, many of them would not have stayed in such deprived housing conditions. Yet the waiting time and list of for PRH are long, and many of the subdivided unit dwellers are ‘forced’ to live in such sub-standard housing while waiting for PRH. Thus, making PRH more readily available by increasing its supply will be the long-term solution to the sub-divided unit housing problem, with more PRH offering decent affordable housing as the ‘genuine’ alternative, thereby fewer people will ‘choose’ or ‘forced to choose’ to live in sub-divided units. Yet, a significant increase in the supply of new PRH cannot be achieved instantly since it involves land supply, planning and building time limitations. Increasing the turnover rate of existing PRH units to ensure that PRH resources are allocated to those with more housing needs will be important. Those more well-off tenants should return the PRH units which are to be re-allocated to waitlist households who are more in need. To achieve this more effectively, both ‘carrot’ and ‘stick’ should be applied more satisfactorily to facilitate a higher turnover rate of PRH, thereby releasing more ‘recycled’ PRH units to those dwelling in sub-standard housing, including sub-divided units, who are waiting for PRH. Besides PRH, third sector housing, including transitional housing, can also serve as a desirable alternative for the sub-divided unit dwellers, if they are more readily available with a greater supply. Since many third sector housing organizations in Hong Kong use under-utilized land and housing resources (such as land and housing units left idle and waiting for redevelopment) for third sector housing provision (Yung & Chan, 2020), its supply can be more readily available within a shorter period as compared to new PRH supply. These decent, livable and affordable third sector housing, if in greater supply, may serve as a replacement for sub-divided units, thereby decreasing the demand for the latter. In face of decreased demand due to ‘competition’ from more third sector housing supply, the sub-divided unit landlords need to gradually improve the quality of his/her housing, such as upgrading it to meet the legal requirements. With such market dynamics for driving out of those illegal substandard ones in operation, the housing quality of sub-divided units will be improved in the long run, given that there are available alternative options for dwellers to choose from. The provision of ‘real’ alternatives is a ‘softer’ approach to upgrade existing sub-standard sub-divided units to meet legal requirements, yet will not lead to drastic rent increase because of the availability of affordable third sector housing as an alternative for the low income, if third sector housing is more available with a greater supply. The increased supply of PRH and third sector housing as feasible alternatives may involve the need to increase land supply for their building. The increase in land supply, PRH and third sector housing provision may necessitate positive acts in the form of ‘actively’ engaged in taking actions to achieve these such goals. Resolving the sub-divided unit problem may also require negative actions in the form of refraining from certain behaviour, namely housing discrimination, on the part of the government in housing policy-making, private landlord in tenant selection and the public as neighbours so that the marginalized groups, such as gay couples, ethnic

3 Sub-Divided Units: Property Rights and Market Versus Right to Housing

45

minorities, Mainland New Arrivals, single-parent families among others will not be discriminated and be put into a disfavoured position. In this way, their housing choice will not be delineated and circumscribed, with different possibilities to improve their housing plight rather than merely limited to sub-standard housing. For example, if gay couples are eligible for PRH, the residence requirement for PRH application is more lenient, the gay couples and the new immigrants will be in a more favoured position to really have PRH as alternative to sub-divided unit dwelling, thereby improving their housing plight. In addition, there should be education and promotion in different dimensions. First, there should be more campaigning on the danger of illegal sub-dividing and its adverse impact on building safety, fire safety, and physical and mental health on the part of dwellers among others. This will make both the landlords and the tenants more alert to the risk issues involved, making efforts and trying their best to take precautions (e.g. related to fire safety), thereby reducing housing disasters such as building collapses that happened earlier, or frequent fires in sub-divided unit buildings. Second, there should be more public education on the proper and legal means of sub-dividing and that it should be done within the Minor Works Control System which requires sub-dividing works to be undertaken by qualified professionals and contractors who will ensure that the building alterations are in line with the Buildings Ordinance and other regulations (News.gov.hk, 2012). This will safeguard the subdivision design, including fire safety, structural safety and drainage works are carried out in a manner that is up to standard (Ibid.). Third, there should be the stimulation of more discussion on the exact nature of housing as a form of education and food for thought for the general public in Hong Kong. There should be more public debate and reflection on the contrasting nature of housing, for example around issues such as whether housing should be viewed more as a commodity versus as a necessity, whether the exchange value versus the use value of housing should be emphasized; whether housing should merely be providing shelter versus giving a home to the dwellers. Such dialogue may facilitate the public deliberation on the proper role of the government, private entities, third sector, civil society and individuals in the Hong Kong housing arena, outlining the vision for future housing policy-making, especially the relative importance of the public, private and third sector in future housing provision in Hong Kong. Fourth, and more importantly, will be efforts on civic and moral education, especially related to care and concern for others which underlies good urban citizenship. Profit-making, by itself, is not problematic. However, profiteering to the extent of disregarding the interest and well-being of others should not be carried out. For example, a responsible landlord will only consider legal means of sub-dividing his/her housing unit for renting, even though illegal ways of sub-dividing may increase the rent received since the latter may violate legal requirements of certain fire safety, building and environment standards of sub-dividing, bringing higher profit returns. Such responsible landlord not only meets the legal requirements but also safeguards the well-being of the tenants. Confucius has certain guidelines for moral obligation towards others:

46

B. Yung Tzu-hung asked, ‘Is there a single word which can be a guide to conduct throughout one’s life?’ The master said, ‘It is perhaps the word “Shu’. Do not impose on others what you yourself do not desire’ (Analects 15.24; Lau, 1983, p. 155).

This Confucius teaching is in concordance with the Golden Rule of the Christian Bible: ‘Do to others as you would have them do to you’ (Luke 6:31; Bible Gateway, 2021). Thus, there is convergence in both the Western and Eastern teachings concerning the appropriate ways to treat others by putting yourself into the shoes of others. Putting this in the context of sub-divided units, the landlords should try to view the issue from the angle of the tenants, adding a degree of reasonableness in ensuring the safety, health, affordability, home-moving time needed among others, on the part of the sub-divided unit dwellers. This underlies good urban citizenship and is fundamental to sound urban governance concerning the urban controversy-related rights over the issue of sub-divided units.

3.3 Conclusion The contemporary international consensus is in line with the classical Confucian ideas on the importance of the satisfaction of basic needs, including housing needs, of the general public, constituting the conception of socio-economic rights and ‘right to housing’ in contemporary language, especially in the Western world. When applied to the issue of sub-divided units in the Hong Kong context, the ‘right to housing’ of the dwellers may be infringed, especially in cases when there is an illegal sub-division. Within the issue of housing sub-division, there is an ‘apparent’ clash between the property rights over the right to manage his/her property, including sub-division, on the part of the owner as a landlord, and the ‘right to housing’ on the part of the dwellers as a tenant. Yet, property rights do not imply absolute freedom and the right to manage and use one’s property, without limitations and regulation, especially in relation to harmful and illegitimate uses. The legal building requirements for building sub-division may serve as a balance struck between the property rights of owners and the ‘right to housing’ of dwellers. Rigorous and strict enforcement of the legal building regulations and ‘right to housing’ may lead to housing dilemmas, while these may improve certain dimensions of ‘right to housing’ yet may have detrimental impacts on other aspects of ‘right to housing’, such as affordability, not to be homeless among others. A ‘softer’ approach to handle the issue in the form of providing ‘genuine’ alternatives and education in different aspects may be more advisable in the long run. In particular, civic and moral education related to care and concern for the well-being and interest of others, namely that of the sub-divided unit dwellers, is needed since this fundamentally underlies the ‘ethics of housing sub-division’ which is in line with both Christianity and Confucianism.

3 Sub-Divided Units: Property Rights and Market Versus Right to Housing

47

References Bible Gateway. (2021). Luke 6:31. https://www.biblegateway.com/passage/?search=Luke%206% 3A31&version=NIV Brettschneider, C. (2012). Public justification and the right to private property: Welfare rights as compensation for exclusion. Law and Ethics of Human Rights, 6(1), 119–146. Building Department. (2010). Report on the collapse of the building at 45J Ma Tau Wai Road TO Kwa Wan, Kowloon—K.I.L. 8627 on 29 January 2010. Buildings Department. Census and Statistics Department. (2016). Thematic report: Persons living in subdivided units. https://www.bycensus2016.gov.hk/data/16BC_SDU_report.pdf Census and Statistics Department. (2016a). 2016 population by-census. https://www.censtatd.gov. hk/en/scode459.html Census and Statistics Department. (2016b). Thematic report: Ethnic minorities. https://www.byc ensus2016.gov.hk/data/16bc-ethnic-minorities.pdf Census and Statistics Department. (2016c). Thematic household survey report no.60: Housing conditions of sub-divided units in Hong Kong. https://www.censtatd.gov.hk/en/data/stat_report/ product/C0000091/att/B11302602016XXXXB0100.pdf Chan, F. (2010). The money making in ancient China: A literature review journey through ancient texts. Journal of Business Ethics, 91, 17–35. Dafel, M. (2013). The negative obligation of housing right: An analysis of the duties to respect and protect. South African Journal on Human Rights, 29(3), 519–614. Development Bureau. (2012). Press release: LCQ11: Subdivided flats, bedspace apartments and cubicle apartments. https://www.devb.gov.hk/en/publications_and_press_releases/press/index_ id_7421.html Gray, K. J. (2007). Property, doctrinal issues. In S. David (Ed.), Encyclopedia of law & society: American and global perspectives (pp. 1199–1203). Sage. Hong Kong Housing Authority. (2019). Chapter 1: Application for Public Rental Housing. https:// www.housingauthority.gov.hk/en/common/pdf/about-us/policy-focus/policies-on-public-hou sing/A01/A01.pdf Honoré, A. M. (1961). “Shelter”. In A. G. Guest (Eds.), Oxford essays in jurisprudence (pp.105– 147). Oxford University Press. Hui, E. C. M., Liang, C., & Yip, T. L. (2018). Impact of semi-obnoxious facilities and urban renewal strategy on sub-divided Units. Applied Geography, 91, 144–155. Lau. D. C. (Translated) (1983). Confucius: The Analects. The Chinese University Press. Legislative Council Secretariat. (2013). Information note: Subdivided flats in Hong Kong. https:// www.legco.gov.hk/yr12-13/english/sec/library/1213in22-e.pdf Leung, K. M., & Yiu, C. Y. (2022). How do the poor survive in an unaffordable city?—An empirical study of informal housing households living in Hong Kong. International Journal of Urabn Sciences, AHEAD-OF-PRINT, 1–22. https://doi.org/10.1080/12265934.2022.2036627 Leung, K. M., Yiu, C. Y., & Lai, K.-K. (2022). Responsivness of sub-divided unit tenants’ housing consumption to income: A study of Hong Kong informal housing. Housing Studies, 37(1), 50–72. News.gov.hk. (2012). LCQ17: Sub-division of flat units. https://www.info.gov.hk/gia/general/201 211/07/P201211070455.htm News.gov.hk (2022). Subdivided unit rent control set. https://www.news.gov.hk/eng/2022/01/202 20103/20220103_104104_250.html Ng, J. (2012, May 15). Trial over deadly building collapse. South China Morning Post. https://www. scmp.com/article/1001049/trial-over-deadly-building-collapse Office of the High Commissioner for Human Rights. (1991). CESCR General comment no.4: The right to adequate housing. https://www.refworld.org/pdfid/47a7079a1.pdf Sim, M. (2013). Confucian values and human rights. The Review of Metaphysics, 67(1), 3–27. The Government of Hong Kong SAR. (2017). 2016 Population by-census thematic report: Ethnic minorities published. https://www.info.gov.hk/gia/general/201712/29/P2017122900294.htm

48

B. Yung

The Government of Hong Kong SAR. (2017a). Press release: LCQ19: Collection of electricity and water charges by landlords from tenants of inadequate housing. https://www.info.gov.hk/gia/ general/201701/11/P2017011100395.htm The Government of Hong Kong SAR. (2017b). Press release: LCQ4 ElectricitycCharges for tenants of sub-divided units. https://www.info.gov.hk/gia/general/201703/22/P2017032200438. htm?fontSize=1 The Government of Hong Kong SAR. (2018). 2016 Population by-census thematic report: Persons from the Mainland having resided in Hong Kong for less Than 7 years published. https://www. info.gov.hk/gia/general/201801/11/P2018011100479p.htm The Hong Kong Government. (2014). The 2014 Policy address: Support the Nneedy; Let youth flourish; Unleash Hong Kong’s potential. https://www.policyaddress.gov.hk/2014/eng/index. html The Hong Kong Government. (2020). The 2020 Policy address: Striving ahead with renewed perseverance. https://www.policyaddress.gov.hk/2020/eng/pdf/PA2020.pdf Transport and Housing Bureau. (2012). Task force on transitional housing. https://www.thb.gov.hk/ eng/policy/housing/policy/transitional/index.htm Transport and Housing Bureau. (2021). Report of the task force for the study on tenancy control of subdivided units. https://www.thb.gov.hk/eng/contact/housing/matter_tc.htm United Nations. (1966). United Nations International Covenant on Economic, Social and Cultural Rights”. In M. R. Ishay (Ed.), The human rights reader (pp. 513–519). Routledge. Yau, Y., & Chiu, S. M. (2015). Combating building illegality in Hong Kong: A policy delphi study. Habitat International, 49, 349–356. Yau, Y., & Ho, D. C. W. (2017). Exploring policy options to combat illegal microapartments in Hong Kong. Urbani Izziv, 28(2), 83–95. Yau, Y., & Lau, W. K. (2018). Big data approach as an institutional innovation to tackle Hong Kong’s illegal subdivided unit problem. Sustainability, 10, 1–17. Yau, Y., & Yip, K. C. (2022). No more illegal subdivided units: A game-theoretical explanation of the failure of building control in Hong Kong. Buildiings., 12(1105), 1–22. Yung, B., & Chan, A. (2020). Third sector housing in 21st century Hong Kong—Opportunities and challenges. Voluntary Sector Review, 11(3), 337–358. Yung, B., & Lee, F.-P. (2012). ‘Right to housing’ in Hong Kong: Perspectives from the Hong Kong community Housing. Theory and Society, 29(4), 401–419. Yung, B., & Lee, F.-P. (2014). ‘Equal right to housing’ in Hong Kong housing policy: Perspectives from disadvantaged groups. Journal of Housing & the Built Environment, 29(4), 563–582. Yung, B., & Leung, B. Y. P. (2020). Choice or no choice? Genuine or fake choice?—A qualitative study for reflections on housing choice. Critical Housing Analysis, 7(2), 1–10.

Chapter 4

Urban Development and Land Controversies in Rural Hong Kong: An Indigenous Rights Perspective Jean-François Dupré

Abstract This chapter provides an overview of the land rights situation and related controversies in rural Hong Kong from Indigenous rights and other perspectives. Though ill-defined, Indigenous rights and interests are constitutionally enshrined and are exercised through Indigenous leaders’ representation in political bodies and the continuation of traditional customs and practices, including land arrangements. This system of political representation and differentiated land rights is often perceived as unfair by Hong Kong’s non-Indigenous population, especially in the context of acute land and housing shortages. Antagonism to Indigenous rights is further exacerbated by their discriminatory nature towards women and by alleged collusion between Indigenous elites, land developers, organized crime and the authoritarian government. Nonetheless, this chapter argues that a commitment to liberal democratic principles mandates continued respect for Indigenous rights, but calls for a fundamental reform of these rights in accordance with international norms, liberal rights theory and progressive streams of Confucian thought.

4.1 Introduction The trope of Hong Kong as a place where East meets West lies at the core of the city’s official branding and underscores this book’s analytical framework. With its history of British colonial rule over an ethnoculturally Chinese population, Hong Kong is often considered an institutionally and culturally hybrid place. In Hong Kong, British institutions like the rule of law have not only coexisted with but have perhaps even encouraged, the maintenance of some aspects of traditional Chinese culture that have been lost through political upheavals in other parts of China. Today, much of the city’s institutional apparatus, from its leasehold land tenure to its common law system, is essentially based on its British legacy, while the bulk of the population remains ethnoculturally Chinese—with its Confucian outlook on many aspects of J.-F. Dupré (B) Department of Human Sciences, Arts and Communication, Université TÉLUQ, Montréal, QC, Canada e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 B. Yung et al. (eds.), Rights and Urban Controversies in Hong Kong, Governance and Citizenship in Asia, https://doi.org/10.1007/978-981-99-1272-8_4

49

50

J.-F. Dupré

life. To the extent where the West is also often associated with “modernity” and the East with tradition, the East meets West trope can also be made out to reflect the geographic divide between mega-urbanized Hong Kong Island and Kowloon in the south and the more rural New Territories to the north. In recent decades, however, population growth, housing shortages and market incentives have intensified developmental pressures on rural Hong Kong, blurring the line between urbanity and rurality, and giving rise to some of the city’s fiercest controversies. Issues of rights and of East–West perspectives are deeply ingrained in these controversies, and in a very literal sense too. Indeed, and perhaps somewhat ironically, many of those facets of Hong Kong’s rural life that were considered best shielded from British colonial influence were in fact themselves created, or at least enabled, by colonial policies, practices and institutions. A case in point is the very idea of the New Territories’ inhabitants as Indigenous1 and the various measures put in place by the colonial administration to coopt, divide and rule over rural elites. Today, these measures are enshrined as rights in Hong Kong’s Basic Law (i.e. its mini-constitution), and are exercised in a number of ways, including Indigenous leaders’ representation in political bodies, the continuation of traditional customs and practices, and the actualization of some forms of Indigenous land ownership arrangements. Central to these has been the formulation and implementation of the Small House Policy, which allows male Indigenous inhabitants to build a three-storied house in the vicinity of their village at practically nil land premium. In a city that boasts some of the world’s highest real estate prices, the policy has unsurprisingly been widely supported by Indigenous communities. But this system of political representation and differentiated land rights is also perceived negatively by many among Hong Kong’s non-Indigenous population, especially in this context of acute land shortage and housing unaffordability. As Merry points out, “The sympathy that indigenous minorities attract elsewhere is notably lacking in Hong Kong” (2020, p. 7). Antagonism to Indigenous rights is further exacerbated by the perception of enduring collusion between Indigenous elites, property developers, organized crime and the otherwise rights-denying authoritarian government.2 This is without mentioning the gender discrimination inherent to the Small House Policy, which is only available to men and systemically excludes women from enjoying direct benefits. Underlying these issues is an implicit questioning of

1

In a nutshell, Indigenous inhabitants are Hong Kong residents of Chinese origins whose ancestors already inhabited the New Territories when the British leased the area in 1898. Their history is discussed further in the second section of this chapter. Note that, in keeping with scholarly convention, this chapter capitalizes terms related to Indigeneity, except in quotes wherein the source does not enforce capitalization (such as Hong Kong official documents). See American Psychological Association (2019) for guidelines on the capitalization of terms relating to ethnoracial identities. 2 Hong Kong could best be described as an electoral autocracy. The executive is effectively unelected and nominated by Beijing, and until recently, about half of legislative seats were freely elected, while representation in the other half were selected by corporate interests with close links to the executive. The scope of elections has been further restricted in recent years, to the point where Hong Kong’s political system can now be deemed wholly uncompetitive.

4 Urban Development and Land Controversies in Rural Hong Kong …

51

the validity of Indigeneity claims in Hong Kong. Are Hong Kong’s Indigenous inhabitants Indigenous in the sense conferred by international Indigenous rights? As we will see in this chapter, Indigenous claims and recognition are complex and essentially political processes in which legitimacy cannot be assessed by objective criteria alone. The fact being that there already is a population that identifies as Indigenous, that is recognized as such by the government, and whose rights and interests are constitutionally protected, this chapter does not dwell on this question. Instead, it proposes to take these claims seriously and to address land-related controversies in Hong Kong’s New Territories from an Indigenous rights perspective—something that has seldom (if ever) been done in Hong Kong’s particular context. First, the chapter surveys the Indigenous rights situation at a global level, looking into academic conceptions of Indigeneity as well as standards and practices on Indigenous rights adopted by the United Nations (UN) and many settler nations. Second, the chapter provides a historical overview of Indigenous claims and rights in Hong Kong, with a focus on special land arrangements as embodied in the Small House Policy. Third, the chapter critically analyses land-related controversies in the New Territories from an Indigenous rights perspective, with insights from liberal rights theory and Confucianism. Overall, this chapter argues that some land-related controversies in the New Territories may best be resolved by further developing and institutionalizing Indigenous rights in accordance with liberal rights-inspired international norms, and in line with the more progressive streams of Confucianism—two approaches this chapter finds to be generally compatible.

4.2 Discussion 4.2.1 International Perspectives on Indigeneity and Indigenous Rights There is no definitional consensus on Indigeneity. Most people have an intuitive understanding of Indigeneity—one that is usually associated with the experience of the original Peoples in settler colonies like “the Americas, Australia and New Zealand” (Baird, 2016, p. 501). Other societies in which the original inhabitants were colonized, displaced, and marginalized by settlers also often recognize an Indigenous population. This is the case, for instance, in Taiwan, where Austronesian Peoples have been dominated by various colonial regimes and demographically overwhelmed by settlers from China and other parts of the world. These cases share a history of colonization, subjugation and displacement of a given territory’s original inhabitants by settlers of a vastly different ethnocultural background. In parts of Asia, Indigeneity has also been associated with processes of colonization, displacement and oppression of ethnocultural minority populations, whether or not they entertain a claim to being “first peoples” of the land (Baird, 2016, p. 502). Similarly, Benjamin observes that “being ‘indigenous’ in Asia often has less to do with purportedly distinct origins

52

J.-F. Dupré

than with processes of deliberate dissimilation between different patterns of social and cultural organization within the same overall framework—although this is not to deny that distinct origins may also play a part” (2016, p. 363). In assessing claims of Indigeneity, the norm within Indigenous circles has been to privilege self-identification as opposed to definitions imposed by outsiders. This has been done partly so as to thwart attempts by states to reject Indigenous claims and the rights that derive from them (Corntassel, 2003, p. 75). This is not to say that all self-identification claims should be accepted without questioning. Indeed, countries like Canada have seen growing demands to clamp down on fraudulent Indigeneity claims (CBC News, 2022). However, such challenges are typically raised against self-claimed individuals or nations that are recognized by neither the state nor broader Indigenous organizations. In other words, determination of Indigenous status is an eminently political process that is negotiated between Indigenous communities and the state, and which cannot be resolved through objective or normative criteria alone. That said, some have attempted to sketch out some broad characteristics of Indigeneity for analytical purposes. For instance, Corntassel proposes a Peoplehood-grounded definition “emphasizing self-identification as well as the interrelationships between identity and key cultural perspectives” (2003, p. 92). Accordingly, Indigenous Peoples could be defined as: 1. Peoples who believe they are ancestrally related and identify themselves, based on oral and/or written histories, as descendants of the original inhabitants of their ancestral homelands; 2. Peoples who may, but not necessarily, have their own informal and/or formal political, economic and social institutions, which tend to be community-based and reflect their distinct ceremonial cycles, kinship networks, and continuously evolving cultural traditions; 3. Peoples who speak (or once spoke) an indigenous language, often different from the dominant society’s language—even where the indigenous language is not “spoken”, distinct dialects and/or uniquely indigenous expression may persist as a form of indigenous identity; 4. Peoples who distinguish themselves from the dominant society and /or other cultural groups while maintaining a close relationship with their ancestral homelands/sacred sites, which may be threatened by ongoing military, economic or political encroachment or may be places where indigenous peoples have been previously expelled, while seeking to enhance their cultural, political and economic autonomy. (Corntassel, 2003, p. 91, emphasis added to highlight the relevance to Hong Kong) As we will see in the remainder of this chapter, these characteristics are relevant to Hong Kong’s situation, especially insofar as they are to be conferred and interpreted broadly.3 3

In the cultural realm, for instance, the New Territories have been home to the Wai Tau dialect of Cantonese and to the Hakka and Tanka languages, all of which have contrasted with the mainstream Cantonese predominantly spoken in other parts of Hong Kong, though they have been in sharp decline.

4 Urban Development and Land Controversies in Rural Hong Kong …

53

There is a well-established Indigenous rights corpus at an international level, though these rights are seldom fulfilled in practice. The cornerstone of Indigenous rights largely pertains to the interrelated areas of cultural, territorial and selfdetermination rights. Indeed, the principle of self-determination lies at the core of the UN charter and international law. In the aftermath of the Second World War, most colonies exercised their right to self-determination in the form of national independence,4 though Indigenous nations—which were confined and dispersed within settler state boundaries—did not (Keal, 2003, p. 113). Therefore, Indigenous rights advocates have endeavoured to reconcile territorial and self-determination claims with the fact that fully independent statehood may not be a viable option. In this light, Article 3 of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which was adopted in 2007, states that “Indigenous peoples have the right to selfdetermination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.5 In addition, Article 26 indicates that: 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned. Some limited progress appears to have been made on issues of Indigenous cultural rights in some settler societies. For instance, the Canadian government has issued formal apologies for previous assimilationist state policies—even recognizing them as cultural genocide—and devoted substantial resources to its Reconciliation programme. Similarly, both Taiwan and Canada have adopted Acts for the revitalization of Indigenous languages, though much more will be needed to revive those Indigenous cultures that have been deliberately targeted for annihilation by colonial settler states. The actualization of self-government and self-determination rights has been particularly problematic. Papillon (2014, p. 117) discusses three approaches to Indigenous self-government in Canada, which can be used as a departure point in theorizing forms of Indigenous self-government in other settings: “self-government as self-administration, self-government as an inherent right, and self-government as coexisting sovereignty”. These three approaches can be conceptualized as a

4

Hong Kong is an interesting exception in that it was forcibly handed to the People’s Republic of China (PRC) in 1997 instead of achieving independence. 5 These rights are further spelled out in a number of Articles, such as Articles 4, 5, 25 and 26.

54

J.-F. Dupré

scale from lower to higher forms of self-government. The first approach corresponds to “the transfer of administrative authority to band councils” (i.e. Indigenous governments), who are merely entrusted with the task of administrating and enforcing federal government policies. The second approach goes further by recognizing self-government as an inherent right but does so while stressing that this right only “exists within the framework of the Canadian federation” (p. 118), so that its exercise “depend[s] on federal and provincial legislative consent” (p. 119). Finally, the last approach recognizes Indigenous Peoples’ “sovereignty outside the institutions of Canadian federalism”, as “the expression of distinctive constitutional orders that today continue to exist parallel to Canada’s own institutions” (p. 119)— thus embodying higher ideals of Indigenous self-government. As we will see in the coming sections, Indigenous rights in Hong Kong have been comparatively underdeveloped—being largely confined to minimally-impactful land arrangements and a mixture of political representation and ad hoc consultations with powerful stakeholders, which would not meet the threshold for self-administration. They have thus fallen short of enabling tangible self-determination—let alone sovereignty—rights.

4.2.2 British Colonialism and the Making of Indigeneity in Hong Kong Indigeneity is usually a product of colonialism, and Hong Kong is no exception. In fact, Indigeneity in the Hong Kong context takes its roots in the colonization of the New Territories by the United Kingdom. As opposed to Hong Kong Island and Kowloon, which were sparsely populated and ceded in perpetuity to the British in 1842 and 1860 respectively, the vaster and more populous New Territories were merely leased for a period of 99 years from 1898 and meant to serve as a buffer zone between British and Chinese territory (Merry, 2020, p. 16). As a condition for the lease, the British committed to limiting their influence on the territory and to respecting the customary rights and traditions of its inhabitants (ibid, p. 24), who decades later would come to be known as Hong Kong’s Indigenous inhabitants. Partly due to the colonial government’s policy of limited interference in NewTerritories affairs, traditional rural leadership maintained much of its influence locally, be it by serving in advisory positions or by acting as intermediary between the government and the local population (Kwong, 2018, pp. 42–43). In the 1920s, however, plans by the colonial government to impose a premium on new houses built on private land and to raise land taxes on such land caused an uproar in the rural community, leading the government to suspend the policy. It is in this context that rural leaders established a platform to defend their interests, which became the Heung Yee Kuk (Rural Consultative Bureau) in 1926 (Kwong, 2018, p. 43). The Kuk—as it is colloquially called—became increasingly influential, leading to its establishment as a statutory advisory body in 1959.

4 Urban Development and Land Controversies in Rural Hong Kong …

55

By that time, Hong Kong’s demographic situation had changed drastically. This was particularly the case in the post-Second World War period. During the war, the Japanese invasion and rule of Hong Kong had triggered an exodus from the city to China, though many settled back after the departure of the Japanese. But the largest wave of immigrants was prompted by the Chinese civil war and the ensuing communist victory in 1949, which brought an influx of hundreds of thousands to millions of refugees in the 1950s and 1960s, many of whom settled in the New Territories. As a result, the New Territories’ population grew from 170,000 in 1946 to 400,000 in 1960 and 836,000 in 1966 (Kwong, 2018, p. 44). The sudden rise in population, a substantial part of which consisted of refugees squatting in improvised, hazardous slums, led the government to play a more active role in Hong Kong’s social affairs, spurring the construction of public housing projects and the planning of so-called “New Towns” in the New Territories. The government had negotiated relocation and development agreements with rural stakeholders for decades, notably for the creation of reservoirs (Hayes, 2006), but never to this extent. Development inevitably had a tremendous influence on rural inhabitants’ way of life, accelerating the demise of agriculture-related occupations. But cultural change was overall selfinitiated rather than forcibly imposed. As more and more inhabitants had access to urban lifestyles and saw the value of land soar, agriculture became less attractive and many sought to turn a profit from selling or converting their land to more lucrative use. Development was accompanied by institutional restructuring, which caused a number of frictions between the colonial administration and rural leaders. On the one hand, the Kuk had looked to expand and strengthen its authority and to be recognized as a representative of the New Territories as a whole, rural and urbanizing areas alike. By the 1960s, “the Heung Yee Kuk was on the one hand emphasizing the New Territories’ distinctiveness, and on the other promoting plans to expand the Heung Yee Kuk into a New Territories’ Council” (Kwong, 2018, p. 48, my translation). For its part, the government sought to limit Kuk’s influence to the rural level, especially in village affairs. With the development of modern, densely urbanized New Towns like Tsuen Wan in the Western New Territories, the government put in place a more urban, District-based representation system, which Kuk initially opposed as it threatened rural leaders’ influence over the New Territories (Kwong, 2018, p. 51). As New Towns expanded, some elements of rural affairs were bound to be absorbed by urban affairs, leaving the rural leadership increasingly estranged from mainstream public affairs. The Heung Yee Kuk was however divided, and not all shared its leaders’ ambition to act as a representative of the New Territories (Kwong, 2018). At the village level, Kuk had long fought against restrictions on building over agricultural land and related attempts to increase taxation on such land, arguing that they went against New Territories’ traditions and customary law. According to Kuk, it was historically customary for the son of a family to build his own house on village land and establish his own household. Restricting the building of houses by requiring the payment of a premium on land, a tax increase, or a building license, was depicted as an infringement on the traditional rights of New Territories inhabitants. Merry (2020, p. 163)

56

J.-F. Dupré

casts doubts on whether there ever was a “‘birthright’ to build a house” in the first place, but Kuk’s arguments were nonetheless given due consideration by government officials. It is in this context that the Small House Policy was launched in December 1972. The policy has allowed male patrilineal descendants from New Territories villages that can be traced back to 1898 to build a house without premium on their own land regardless of its zoning classification, or to acquire government land at a discounted premium through a so-called Private Treaty Grant to build one. Other land options have also been available, such as exchanging land otherwise unsuitable for building purposes for a lot on adjacent government land (see Merry, 2020, p. 191). The details of the policy have been amended over the years. For instance, permitted dimensions have been increased substantially. In the early twentieth century, village houses were typically one-storied with a floor area of 436 square feet in dimensions (Hopkinson & Lao, 2003, p. 8). At the onset of the Small House Policy, many had grown to two stories. Since the 1980s, maximum dimensions of “village-type houses” (as they are formally designated) have been set to three stories with a floor area of 700 square feet and flat roofs serving as terraces. In other words, typical “small houses” built today are actually not so small by Hong Kong’s standards. Indeed, a single 700-square-foot floor is already substantially larger than the typical family unit in urban Hong Kong today. The Small House Policy marked the beginning of the government’s Indigenous policy (if there is such a thing in Hong Kong). In fact, Indigeneity in Hong Kong can hardly be separated from the Small House Policy, and it is only in its context—actually in its aftermath in the mid- to late-1970s—that Hong Kong’s original inhabitants came to be referred to as Indigenous. The idea of recognizing the original population as Indigenous right-holding inhabitants was apparently more accidental than deliberate. Indeed, official documents from the time of the Small House Policy’s inception do not even mention the term “Indigenous”. Its first utterances in the context of the New Territories appear to have been made by the Minister of State for Foreign and Commonwealth Affairs in 1977, after which the term was picked up and popularized by the Anglophone press, especially the South China Morning Post (Kwong, 2018, p. 59)—before being generalized in the Chinese language. In a sense, it is the system of differentiated land rights that defined Indigeneity, rather than an established concept of Indigeneity leading to land claims. Indeed, what essentially defines Hong Kong’s Indigenous inhabitants is their socalled Ding right (丁權), Ding referring to male descendants of a given lineage. In determining eligibility to a Ding right—and by extension Indigenous “status” and identity—the government relies on a list of recognized villages which grew in number from 591 in 1973 to 642 in 2019 as a result of reassessments and claims (Merry, 2020, p. 187). In addition to Ding rights, Indigenous villages are also associated with other forms of customary land ownership: Tso (祖) and T’ong (堂). Due to their similarities

4 Urban Development and Land Controversies in Rural Hong Kong …

57

and frequent overlap, the two concepts are often merged into a single concept of TsoT’ong, and translated as “trusts”.6 These trusts are usually held by clans, families or other associations, and in some cases constitute a substantial portion of ancestral village land. In fact, Nissim (2022, p. 144) indicates that some 6,000 acres of New Territories land are being held by Tso-T’ong. Although, in accordance with the patrilineal tradition, only male Indigenous inhabitants are entitled to a Ding right, Indigenous identity isn’t technically only conferred to males. For instance, there are no gender requirements for candidacy in Indigenous village elections, though Indigenous female representatives—the wives or daughters of Indigenous men— appear to be rare. The Small House Policy enabled the government to coopt at least a segment of the descendants of the territory’s original inhabitants and their leadership, and hence “to win rural co-operation for the development of the New Territories” (Merry, 2020, p. 186). It provided a partial solution to housing problems in the New Territories, creating incentives to build higher-quality housing on village land. In fact, villagetype houses are typically built as small apartment complexes, with each of the three floors being rented out, often to outsiders. However, the policy fell short of addressing the Kuk’s multiple claims for enhancing the New Territories’ autonomy and its own administrative authority over it. In fact, it did the opposite by further linking rural interests to the village level, and by splitting the interests of original inhabitants (and their descendants) from those of latecomers. This progressively turned the Heung Yee Kuk—though still nominally an organ of “rural” affairs—into an organization largely devoted to the defence of Indigenous rights and interests, contrary to its original intent of representing the whole of the New Territories. At the time of its inception in the 1970s, the Small House Policy was meant as a temporary arrangement to appease rural leaders, stimulate villagers’ support for urbanization and provide relief for housing woes in the New Territories (Lai, 2000; Merry, 2020, p. 183). Nonetheless, with the announcement, in the 1980s, of Hong Kong’s eventual transfer to Chinese sovereignty as a Special Administrative Region in 1997, the Kuk undertook to have its newly acquired “traditional” rights enshrined into the new constitutional order. It is in this spirit that Article 40 of the Basic Law mentions that “The lawful traditional rights and interests of the indigenous inhabitants of the ‘New Territories’ shall be protected by the Hong Kong Special Administrative Region”, though without defining these rights and interests. This lack of specificity is problematic. As mentioned by Hopkinson and Lao (2003, p. 30), “While the small house grant application refers to ‘rights’ […,] the Administration has publicly stated that the indigenous villager’s right to a small house is not a statutory entitlement and that the policy is administrative in nature”. Nonetheless, “The continuation of the policy, despite its shortcomings and despite the changing economic and social conditions of the [New Territories], has led many indigenous villagers to believe 6

Hase (2020, pp. 14–17), like most writers on the subject (including Hong Kong government officials), unambiguously depicts Tso-T’ong as trusts. However, Merry (2020, Chapter 8), who writes from a more strictly legal perspective, has reservations on this terminology, preferring the terms endowment or foundation (ibid, p. 109).

58

J.-F. Dupré

that this is an inalienable right” (ibid, p. 33). Far from establishing a system of self-governance with the aim of fostering genuine Indigenous autonomy, Basic Law drafters probably sought to pay lip service to Indigenous interests without committing to specific measures. The result was a continuation of the status quo, with the Heung Yee Kuk firmly in place as a nominally rural and de facto Indigenous consultation organ loyal to the new system, and the Small House Policy enduring, albeit for an indeterminate period of time.

4.2.3 Land and Indigenous Rights Controversies in the New Territories Differentiated land rights, and in particular those that relate to the Small House Policy, have given rise to a number of controversies in contemporary Hong Kong. Already more than two decades ago, Lai (2000) brought up four common criticisms against the Small House Policy. In the early 2000s, Hopkinson and Lao (2003) also published a comprehensive report on “Rethinking the Small House Policy”, in which they analysed a number of issues and controversies related to the policy. Observations made in these two publications are still valid today, some having been at the centre of court cases in which judgements were rendered as recently as 2021. Partly based on these publications, alongside a number of related polemics discussed in the media in recent years, this section analyses Indigeneity-related controversies in Hong Kong from a rights perspective, with references to Confucian alternatives. To the extent where the Small House Policy is by and large conceptualized and implemented as a right and constitutes the most palpable measure through which Indigenous rights are actualized in Hong Kong, this section essentially operationalizes Indigenous rights through the Small House Policy. This section is divided into three parts. The first part focuses on one aspect that is particularly problematic from a rights perspective: that of the gender discrimination inherent in the Small House Policy. This aspect, I argue, must be rectified as it infringes on the internal rights of Indigenous inhabitants—those of Indigenous women. In fact, it is inconsistent with both a rights perspective and the more progressive Confucian approaches, despite the fact that it is grounded into Confucian patrilineality. In other words, gender discrimination can be taken to be at odds with both liberal rights and Confucian perspectives. The second part looks into controversies that concern the (allegedly negative) implications of Indigenous rights for Hong Kong society. Here, I show that these controversies mainly stem from a misunderstanding and lack of acceptance of Indigenous rights and that the issues that underlie them are otherwise unproblematic from a rights perspective. Finally, the third part deals with controversies that are more structural and institutional in nature, having to do with instances of corruption and collusion between Indigenous communities and other sectors of society—not the least of which is the government. These problems, I argue, can partly be attributed to the flawed nature and implementation of Indigenous

4 Urban Development and Land Controversies in Rural Hong Kong …

59

rights in Hong Kong, characteristics that owe to their entrenchment into the city’s corporatist, cooptive and authoritarian system.

4.2.4 Gender Discrimination in the Small House Policy Of all controversies related to the Small House Policy, the issue of gender discrimination is doubtless the most potent and problematic one from a rights perspective. In the early 1990s, the Kuk had already fought a fierce yet vain battle over the issue of inheritance rights (Merry & Stern, 2005). Unbeknownst to most until a controversy broke out in 1993, the New Territories Ordinance of 1910 enshrined elements of old Chinese law that denied women the right to inherit property (Stern, 2005, p. 424). This prohibition on female inheritance applied not only to Indigenous women but to all women living in the New Territories (ibid)—though it was apparently seldom applied outside Indigenous villages. A female inheritance movement erupted, which the Kuk ferociously opposed. The movement attracted much public sympathy and political support—and the Kuk’s countermovement little of either—enabling the legislature to pass the New Territories Land (Exemption) Ordinance that struck down the prohibition in 1994 (ibid). As far as the Small House Policy is concerned, the crux of the issue is simple: land rights (i.e. Ding rights) are exclusively granted to men and denied to women (see Lai, 2000, p. 215).7 So far, this issue has been addressed equally simply—and in my opinion inadequately so—by Hong Kong’s courts. In Kwok and Another v. Director of Lands and Others (2021, par. 107), the Court of Appeal dismissed the legal challenge on gender discrimination on the basis that the UK government had filed a reservation to this effect at the time of signing the UN Convention on the Elimination of all Forms of Discrimination Against Women (of which the PRC is also a signatory).8 In other words, the government and the judiciary acknowledge that the policy is discriminatory but judge that some forms of discrimination (in this case based on gender) may be tolerable insofar as it enables the provision of rights of a seemingly “collective” nature to the Indigenous population. This interpretation is, in my opinion, normatively—if not legally—problematic. Internationally, there appear to have been relatively few cases in which conflicts between Indigenous and gender rights have been raised in courts. In Canada, bills C-31 (1985) and S-3 (2017, amended in 2019) were adopted to overturn policies that were deemed discriminatory to women as they enforced patrilineality in the determination of Indigenous status. In short, before these bills’ passage, Indigenous women (and their offspring) could lose their Indigenous status (and derived rights) 7

Eligibility to apply for a Small House Grant is restricted to “an indigenous villager who is a male person at least 18 years old and descended through the male line from a resident in 1898 of a recognized village” (Lands Department, 2014). 8 Hopkinson and Lao (2003, p. 24) provide a slightly different—though wholly congruent—interpretation of these developments.

60

J.-F. Dupré

by marrying non-Indigenous men. However, it is worth pointing out that patrilineality had been enforced by the Canadian state against the will of many Indigenous nations, many of which had matrilineal traditions. In other words, the government was violating both Indigenous tradition and its own gender equality principles by enforcing the majority’s patrilineal practices in Indigenous policy. But regardless of the case’s background, the outcome was clearly that Indigenous affairs must be subject to fundamental principles like gender equality. In Hong Kong, on the other hand, the Kuk has been adamant that patrilineality is integral to Indigenous tradition (and Chinese-Confucian tradition more generally), and has ferociously fought attempts to enforce gender equality in Indigenous affairs, especially in matters of land ownership and inheritance (Chan, 1998, p. 45). The argument against extending Ding rights to women seems to be that patrilineality is central to tradition (as defined by the male-dominated leadership) and must therefore be allowed to continue. As mentioned in Hopkinson and Lao (2003, p. 23), based on an explanation by Patrick Hase, a former civil servant and scholar of the New Territories: A traditional village in the [New Territories] was a collection of clans made up of people who all bore the same surname. Women would marry outside the clan and leave the village to join their husband’s clan. Indigenous villagers regard land as part of a trust by the ancestors for their descendants which cannot be sold outside the family. Women formed part of the husband’s trust, and women’s rights were thus considered the rights of their husbands. Women were not allowed to inherit land because the village land would then belong to a villager bearing a different surname and the village would cease to be a clan village.

In other words, patrilineality is largely conceptualized as a means to standardize kinship attribution and allocate clan resources. By putting clan and family interests above those of individuals, defenders of the status quo (presumably male individuals) may thus seek to trivialize issues of inequalities between men and women. The argument against extending Ding rights to women has also been put forward in terms of practicality. In fact, the continuation of the current policy into an indefinite future is theoretically impossible, as it would require infinite amounts of village land to cater to the needs of infinite generations of Indigenous males (see also Lai, 2000, p. 221). Extending these rights to women would only accelerate and exacerbate land shortage problems, thus further delegitimizing the Small House Policy and perhaps even leading to its demise. And since the policy embodies Indigenous rights, its demise would practically put an end to Indigenous rights and status altogether. Once again, male privilege is constructed as a traditional, rational (and almost natural) managerial practice able to safeguard land resources and hence insure the tradition’s maintenance. Different solutions have been proposed to reconcile the Small House Policy with the prospects of diminishing land availability (and the extension of Ding rights to women), such as relaxing height requirements so as to allow multiple households to join forces and build taller towers rather than individual houses (see Hopkinson and Lao (2003, pp. 35–42) for more examples). These, however, have had little impact on Kuk’s position. The question of gender discrimination in such Confucian-based, patrilineal and patriarchal systems can be addressed from both Confucian and liberal perspectives.

4 Urban Development and Land Controversies in Rural Hong Kong …

61

A Confucian solution to this predicament can be inferred from an analysis of a similar case by Kim (2016): that of female inheritance rights in Korean clan associations, which ultimately resulted in a Supreme Court ruling in 2005. The grievance was brought by married daughters of a clan who were considered “outsiders” and hence denied clan membership, along with the dividends from the sale of clan land (Kim, 2016, p. 142).9 While not framed as an Indigenous question, the implications surrounding the Korean case are essentially the same as those underlying Indigenous rights in Hong Kong. Indeed, the Confucian cultural roots of clan organizations in both places are virtually identical. Like Korean clans, Indigenous clans in Hong Kong are rooted into a common ancestor—usually the founder of the village. And in both cases, membership is traditionally passed on a patrilineal basis. In his survey of the Korea Court case, Kim shows that although the Justices were divided in their rationales, their view was generally sympathetic to the plaintiffs (i.e. to the granting of clan membership and associated benefits to women). Moreover, Kim shows that the Justices’ arguments were either anchored into or at least fully compatible with Confucian interpretations, rather than stemming from a liberal rights perspective. In a nutshell, the various interpretations converged on the fact that clan organizations’ purpose centred on the worship of common ancestors, and that membership ought to be open to all descendants who participated in worship rituals. Even the more Confucian-grounded interpretations stressed the importance of filial piety—as opposed to gender—in the determination of clan membership. Some differed as to whether membership should be automatically granted to female and male descendants alike. But the basic consensus seemed to be that any descendant, male or female, who wished to partake in the shared duties of ancestor worship rituals should be granted full membership and derive equal benefits from it. The same goes for other lineage-related practices, like those enshrined into the Small House Policy. This is not to say that the Korean ruling should necessarily be taken as a one size fits all solution and applied as is to Hong Kong. But it does show that Confucian traditions that perpetuate gender inequalities can be reformed through Confucian thinking and be brought in line with more modern, progressive and rights-based societal standards. An appeal to Confucian tradition cannot justify discriminatory practices; on the contrary, such practices can be rectified through Confucianism. From a liberal rights perspective, a solution to conflicts between Indigenous and gender rights is provided by Zardo (2013). Zardo’s article “explores whether international human rights law, by recognizing Indigenous Peoples’ right to selfdetermination, lends protection to certain indigenous cultural practices that result in illegitimate gender inequalities” (2013, p. 1059). As she indicates, liberal rights approaches give precedence to individual over collective rights, so that “when a conflict arises, individual rights should always prevail” (2013, p. 1063). She gives the example of Kymlicka’s theories of multiculturalism which, although highly sympathetic to Indigenous and national minority rights, eschew the very idea of collective rights per se, preferring a model of “group-differentiated rights” anchored in 9

Unmarried daughters and wives of male descendants were technically also denied formal membership and only offered a symbolic sum in the form of inheritance (Kim, 2016, p. 142).

62

J.-F. Dupré

individual rights (ibid; see also Patton, 2019). Indeed, to Kymlicka (1995), groupdifferentiated rights that enable the maintenance of minority cultures must be upheld not as an end in themselves, but because minority cultures provide a “context of choice” for their individual members’ self-fulfilment. Therefore, group-differentiated rights are only legitimate insofar as they support the rights of individual group members and fulfil their aspirations. In this sense, Indigenous cultural rights are not meant to protect Indigenous cultures so much as the right of Indigenous individuals to live in, develop and pass on their own culture if they so wish. Although Zardo does not fully adhere to the basic liberal rights tenets that “individual rights always trump collective rights” (p. 1082), she does insist on the idea that cultural practices “that are not consistent with international human rights cannot be protected under the pretext that they derive from a right to self-determination” (p. 1083). As she explains, “the right to culture, either in its individual or in its collective sphere, does not mean a right to maintain cultural practices unchanged” (Zardo, 2013, p. 1070). On this basis, she makes the case for Indigenous groups reducing internal frictions between traditional culture and international rights by themselves: “The issue is not then whether Indigenous Peoples’ cultural practices that unequally affect women’s capacity to enjoy their rights should be changed (since if they are discriminatory they must be), but rather how the change should be made. This is where self-determination takes the center stage” (p. 1072).

4.2.5 Indigenous Rights as a Controversy Another criticism of the Small House Policy is that it discriminates on the basis of birth by “confer[ing] an unfair wealth transfer to the indigenous villager, as a non-indigenous villager has no equivalent entitlement” (Lai, 2000, p. 218). In Kwok and Another v. Director of Lands and Others, the argument that the policy was “inherently discriminatory on the grounds of social origin or birth” (2021, par. 2) was brushed aside on the basis of coherence. Having examined the intent of Basic Law drafters, Court of Appeal judges ruled that Article 40 “must be construed to also exclude a discrimination challenge based on other grounds, such as birth or social origin, available in the Basic Law or the [Bill of Rights]” (2021, par. 112). Once again, the court recognizes that some aspects of Indigenous rights may supersede other rights in some of the specific realms in which the former apply. Unlike the court’s decision on gender rights, this interpretation seems sound, both legally and normatively. Indigenous rights are by their very nature “birth-related”; objecting to Indigenous policy on the basis that its benefits do not extend to non-Indigenous people seems somewhat tautological, and suggests a rejection of the very concept of Indigenous rights. The two other common criticisms mentioned by Lai (2000) concern the allegedly detrimental effects of the Small House Policy on wider society rather than fundamental rights issues inherent to them. More specifically, Lai’s third criticism is that “the small house policy is a waste of government land and administrative resources,

4 Urban Development and Land Controversies in Rural Hong Kong …

63

as small houses proliferate rapidly on government land and their administration is costly” (Lai, 2000, p. 219; for similar arguments, see also Hopkinson & Lao, 2003, pp. 14–15, pp. 20–21). This observation echoes the third argument raised by the applicants of the judicial review, according to which “the Government has failed in its duty to manage, use or develop land in Hong Kong for the benefit of all Hong Kong residents, in contravention of article 7 of the Basic Law” (Kwok and Another v. Director of Lands and Others, 2021, par. 12). It was rightly dismissed as “the Judge found it unnecessary to deal with” (2021, par. 22). Indeed, this specific argument was irrelevant, especially since Article 7 itself does not specify that all Hong Kong residents must benefit from land in the same manner.10 Moreover, it is important to remember that part of the rationale underlying the Small House Policy was precisely to enable rural populations to benefit from urban development by turning a profit from their land. And to the extent where one accepts that some people are entitled to specific rights and benefits—in this case, Indigenous rights—one must also accept that reasonable amounts of state resources be allocated to the provision of these rights and benefits. As far as land availability is concerned, the Hong Kong government is now privileging a number of measures, including (albeit controversially) reclamation from the sea, and it has both the technical skills and the financial resources to carry out its project. From this perspective, the argument that Indigenous village expansion on and in the vicinity of traditional village land is, in and of itself, seriously affecting Hong Kong’s developmental prospects and the housing rights of the majority seems untenable. For one, Hong Kong’s land area may not be as restricted as some would believe; on the contrary—notwithstanding financial and environmental costs—it is bound to expand through reclamation. Second, and more importantly, although the Small House Policy does provision for houses to be built in the village’s vicinity on an ad hoc basis—thus in some cases indirectly enlarging village area—there is no such thing as a right to endless village expansion. In other words, the Small House Policy mainly affects village land scarcity, and by extension Indigenous inhabitants, whose village area is difficult to expand. But the direct effects on Hong Kong’s non-Indigenous land available for development seem negligible. The fourth criticism mentioned by Lai is more subjective, and lies in that “the policy creates planning problems, as small houses are often considered monotonous in appearance and their locations are often inappropriate, for example on farmland and visually attractive sites” (Lai, 2000, p. 219; see also Hopkinson & Lao, 2003, p. 21). Normatively, this observation, together with related ones related to planning issues (see Hopkinson & Lao, 2003, pp. 16–19), would hardly seem relevant to a rights-based analysis, unless it comes from Indigenous inhabitants themselves. As mentioned earlier, interrelated issues of land and sovereignty are central to the concept and practice of Indigenous rights. Although these are underdeveloped in 10

Article 7 mentions that: “The land and natural resources within the Hong Kong Special Administrative Region shall be State property. The Government of the Hong Kong Special Administrative Region shall be responsible for their management, use and development and for their lease or grant to individuals, legal persons or organizations for use or development. The revenues derived therefrom shall be exclusively at the disposal of the government of the Region” (Basic Law).

64

J.-F. Dupré

Hong Kong—being mainly confined to the Small House Policy rather than enabling genuine self-determination—they can nonetheless be useful in analysing this particular situation. If we bestow some aspects of self-government on Hong Kong’s Indigenous villages, it seems the question of how land is developed on Indigenous territory should, to a large extent, remain within the scope of Indigenous inhabitants’ authority and will. It is possible to criticize the government for its poor record in supporting Indigenous communities in their planning, but poor planning can hardly constitute a basis for questioning the validity of Indigenous rights more generally.

4.2.6 Corruption and Collusion Controversies The Small House Policy and Indigenous rights have attracted much criticism concerning various forms of collusion between Indigenous leaders and different sectors. One form of collusion is thought to be occurring with property developers. This mainly takes place through the sale of Ding rights, often (but not always) involving Ding right holders living abroad. International headhunting networks have been established to locate overseas Indigenous individuals who are offered monetary compensation to transfer—albeit informally—their Ding right to property developers. Although this practice is illegal, whole strips of residential areas have thus been erected on Ding land (sometimes originally government land acquired at sub-market price through a Private Treaty Grant), and which would otherwise not have been made available for residential development.11 Relatedly, many in Hong Kong decry the fact that some Indigenous people reside abroad, living off rental income derived from their village-type house. In the opinion of detractors, this practice constitutes an abuse of Indigenous rights. This assessment is nonetheless debatable. Once again, the idea behind the Small House Policy was to enable Indigenous inhabitants to profit from their land; they should therefore be allowed to profit from their village-type house as they see fit. They should of course do so in a lawful manner, but this is a matter of law enforcement. The abuses of some should not affect the legitimacy of Indigenous rights as a whole. Some of the most widely publicized controversies in recent decades concern allegations of collusion between Indigenous leaders, the government and even organized crime syndicates. This tendency was most infamously exemplified in the Wang Chau development project, in which a vast housing development plan was suddenly scaled down following opposition by some Indigenous leaders. Most controversially, the government ultimately decided to prioritize development over a non-Indigenous village—requiring the eviction of about a hundred non-Indigenous households— while leaving untouched an adjacent brownfield area controlled by an Indigenous leader with alleged ties to organized crime (Ng, 2017). Long-term Land Justice League activist and one-time legislator Eddie Chu Hoi-dick made a point of exposing 11

See Merry (2020, pp. 202–203) for an example of how such schemes operate. See also Hopkinson and Lao (2003, pp. 14–15) for additional examples and information.

4 Urban Development and Land Controversies in Rural Hong Kong …

65

the unscrupulous practices surrounding the Wang Chau controversy during his election campaign of 2016, actions for which he reportedly received death threats (Cheng, 2016). Media reports of informal meetings between Indigenous leaders and highranking government officials were portrayed as evidence of collusion and considered particularly controversial (ibid). Many aspects surrounding the Wang Chau controversy—from the secrecy surrounding negotiations to the use of death threats and violence to settle conflicts— are alarming and condemnable. Yet, these controversies have once again little to do with Indigenous rights per se. Quite on the contrary, many of the elements at the centre of the Wang Chau controversy stem from dubious, undemocratic practices that go against international Indigenous rights standards and principles. International Indigenous rights mandate the establishment of genuine Indigenous selfgovernance and transparent Indigenous-state negotiation mechanisms. The Heung Yee Kuk and related village representation systems are inadequate in this regard. Indigenous-state relations in Hong Kong are often conducted on an ad hoc basis with powerful stakeholders, rather than with legitimate representatives of broader Indigenous and community interests. Instead of promoting genuine self-government, Indigenous rights in Hong Kong are collusive and meant to bolster rural support for the authoritarian regime. The government has used concepts of rights selectively and disingenuously in order to coopt potential pro-regime allies (including Indigenous elites) and to disempower antagonistic elements (especially democrats). In this context, it comes to no surprise many in Hong Kong look at Indigenous rights issues with cynicism.

4.3 Conclusion This chapter has surveyed land-related controversies in Hong Kong’s New Territories from an Indigenous rights perspective, with insights from Confucian interpretations. The chapter has related how historical contingency—namely colonialism— gave rise to cultural, political and territorial claims among rural elites, resulting in the local population being conceptualized as Indigenous and granted limited benefits with regard to land conversion. The Small House Policy, which has allowed male Indigenous inhabitants to apply for premium-free home-building licenses, together with political representation mechanisms and practices in place, have however been sources of controversy in Hong Kong. From justified accusations that the Small House Policy entrenches gender discrimination to allegations of collusion between Indigenous leaders, property developers, organized crime and the authoritarian government, issues of Indigeneity are seldom portrayed positively in Hong Kong’s press— even (or, perhaps more accurately, especially) in the more progressive outlets. This, the chapter has argued, partly stems from a failure to recognize the legitimacy of Indigenous rights in Hong Kong. Yet, a commitment to liberal principles—which many in Hong Kong otherwise purport to adhere to—should entail taking Indigenous rights seriously. Doing so also

66

J.-F. Dupré

involves building sound institutions and a discrimination-free environment allowing for the articulation of a variety of interests. Indigenous leaders have been adamant that some of the most controversial aspects of the Small House Policy—namely its benefits being restricted to men—are central to Indigenous and Confucian tradition more generally. This chapter has shown that this narrow, essentialist interpretation can be refuted, not only from a liberal rights perspective but even from a Confucian one—as it has been in Korea. Therefore, whether we look at this issue from an Indigenous rights or a Confucian perspective, “tradition” cannot be used as a justification to perpetuate discriminatory practices. It cannot be used as a justification to perpetuate undemocratic or corrupt ones either. In this sense, (Eastern) Confucian and (Western) liberal and Indigenous rights approaches are perhaps more convergent than they are divergent. In Hong Kong’s hybrid context, such a hybrid approach to land rights might indeed be more conducive to effective reform than a liberal or Confucian one alone.

References American Psychological Association (2019). Racial and ethnic identity. http://apastyle.apa.org/ style-grammar-guidelines/bias-free-language/racial-ethnic-minorities Baird, I. G. (2016). Introduction—Indigeneity in Asia: An emerging but contested concept. Asian Ethnicity, 17(4), 501–505. Benjamin, G. (2016). Indigenous peoples: Indigeneity, indigeny or indigenism? In C. Antons (Ed.)„ Routledge Handbook of Asia Law (pp. 362–377). Routledge. CBC News (2022, July 8). Queen’s University should apologize, create process to validate Indigenous identity: report. https://www.cbc.ca/news/canada/toronto/queen-s-university-staff-indige nous-identity-report-recommendations-1.6514055 Chan, S. C. (1998). Politicizing tradition: The identity of indigenous inhabitants in Hong Kong. Ethnology, 37(1), 39–54. Cheng, K. (2016, September 5). Kicking the hornet’s nest: ‘King of votes’ Eddie Chu to tackle rural gentry, but expects political violence. Hong Kong Free Press. https://hongkongfp.com/ 2016/09/05/kicking-the-hornets-nest-king-of-votes-eddie-chu-to-tackle-rural-gentry-but-exp ects-political-violence/ Corntassel, J. J. (2003). Who is indigenous? ‘Peoplehood’ and ethnonationalist approaches to rearticulating indigenous identity. Nationalism and Ethnic Politics, 9(1), 75–100. Hase, P. H. (2020). Settlement, life, and politics: Understanding the traditional new territories. Royal Asiatic Society Hong Kong studies series. Hayes, J. (2006). The great difference: Hong Kong’s new territories and its people 1898–2004. Hong Kong University Press. Hopkinson, L. and Lao, M. L. M. (2003). Rethinking the small house policy. Civic Exchange. Keal, P. (2003). European conquest and the rights of indigenous peoples: The moral backwardness of international society. Cambridge University Press. Kim, S. (2016). Public reason confucianism: Democratic perfectionism and constitutionalism in East Asia. Cambridge University Press. Kwok Cheuk Kin & Another v. Director of Lands & Others (13/01/2021, CACV234/2019). (2021). January 13. 1 HKLRD 737, [2021] HKCA 54 https://legalref.judiciary.hk/lrs/common/ju/ju_ frame.jsp?DIS=132950&currpage=T

4 Urban Development and Land Controversies in Rural Hong Kong …

67

Kwong, C. M. (2018). From the ‘new territories peoples’ to ‘indigenous population’: The construction of identity of the rural population in colonial Hong Kong. [從「新界人」到「原居民」: 英治時期香港新界鄉民的身份建構]. Hong Kong Journal of Social Sciences, 52(2), 39–72. Kymlicka, W. (1995). Multicultural citizenship: A liberal theory of minority rights. Oxford University Press. Lai, L. W. C. (2000). Housing indigenous villagers in a modern society: An examination of the Hong Kong Small House Policy. Third World Planning Review, 22(2), 207–230. Lands Department. (2014). The new territories small house policy—How to apply for a small house grant. https://www.landsd.gov.hk/doc/en/small-house/NTSHP_E_text.pdf Merry, S. E., & Stern, R. E. (2005). The female inheritance movement in Hong Kong: Theorizing the local/global interface. Current Anthropology, 46(3), 387–409. Merry, M. (2020). The unruly new territories: Small houses, ancestral estates, illegal structures, and other customary land practices of rural Hong Kong. Hong Kong University Press. Ng, E. (2017, December 3). ‘We made the sacrifice’: Powerless to resist development, Wang Chau villages face demolition. Hong Kong Free Press. https://hongkongfp.com/2017/12/03/we-madethe-sacrifice-powerless-to-resist-development-wang-chau-village-faces-demolition/ Nissim, R. (2022). Land administration and practice in Hong Kong (5th ed.). Hong Kong University Press. Papillon, M. (2014). The rise (and Fall?) of aboriginal self-government. In J. Bickerton & A.-G. Gagnon (Eds.), Canadian Politics, Sixth edition (pp. 113–131). University of Toronto Press. Patton, P. R. (2019). Philosophical foundations for Indigenous economic and political rights. International Journal of Social Economics, 46(11), 1264–1276. Stern, R. E (2005). Unpacking adaptation: The female inheritance movement in Hong Kong. Mobilization: An International Quarterly, 10(3), 421–439. United Nations General Assembly. (2007). United Nations declaration on the rights of indigenous peoples. https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rig hts-of-indigenous-peoples.html Zardo, M. N. L. (2013). Gender equality and indigenous peoples’ right to self-determination and culture. American University International Law Review, 28(4), 1053–1090.

Chapter 5

Should Heritage Preservation Trump Protection of Private Property Right? Koon-kau Ying

Abstract In recent decades, heritage preservation has been a rising issue attracting widespread attention of the civil society in Hong Kong. From a moral point of view, in order to better our society and attain human flourishing, we all seem to have an obligation to heritage preservation. However, this could pose a serious problem in urban policy: if the heritage concerned is the private property of certain individual(s) or organization(s), should heritage preservation trump protection of private property right? Dworkin’s famous metaphor of “trumps” reminds us that basic rights, notably private property rights, shall enjoy a very high priority in policymaking that they may trump other objectives (such as heritage preservation). But is it really the case? In this chapter we shall try to tackle this problem on the theoretical level by utilizing resources from the traditional Chinese thought, namely, Confucianism, which is the core value system in Chinese culture. In subsequent discussions, the preservation of King Yin Lei and Ho Tung Garden as successful and unsuccessful cases in Hong Kong will be analysed, to demonstrate the applicability of the theories proposed.

5.1 Introduction King Yin Lei (景賢里), built by famous merchant Li Po Chun for his sister in 1937, is a historic mansion in the Mid-levels area of Hong Kong. Its “Chinese Renaissance” architectural style is now rare and precious, and the historical and cultural value of the building should not be underestimated. In 2004 a heritage advocacy group, the Conservancy Association (長春社) of Hong Kong, requested the Hong Kong government to declare the mansion a monument. In Hong Kong, the declaration of monuments is the legal power of the government, according to the Antiquities and Monuments Ordinance. Declared monuments are legally protected and demolition of them is strictly prohibited. But the government refused to do so, arguing that King Yin Lei was private property and a very large amount of compensation would have K. Ying (B) School of Humanities and Languages, Caritas Institute of Higher Education, Tseung Kwan O, Hong Kong e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 B. Yung et al. (eds.), Rights and Urban Controversies in Hong Kong, Governance and Citizenship in Asia, https://doi.org/10.1007/978-981-99-1272-8_5

69

70

K. Ying

to be paid to the owner. Before that, the Hong Kong government has not declared any private property a monument and it is reluctant to do so because of the expansive cost (Chan, 2008, p. 225). This raises the issue of one of the urban controversies, namely, the pros and cons of heritage preservation. In the case of King Yin Lei, should the Hong Kong government save this heritage, which was originally privately owned, for preservation? It seems that private property right is an inviolable value in view of our modern liberal social norm. But is it really the case? If there is a need for heritage preservation, should it yield always in front of the private property right? Let’s look at another example. Ho Tung Gardens (何東花園) was a villa on the Peak of Hong Kong built by the famous businessman and philanthropist Sir Robert Ho Tung in the 1930s. He built it for his wife Clara. Although he never lived there, he received many famous visitors at the villa, including George Bernard Shaw (Leung, 2011) and US Vice President John Nance Garner (Ng, 2011). Like King Yin Lei, the villa was also designed in the “Chinese Renaissance” style with high historical and architectural value. In 2011, the Hong Kong government declared it a “proposed historic monument” by invoking the Antiquities and Monuments Ordinance, thus imposing a 12-month moratorium on the demolition works in progress at the time, and pending negotiations with the owner (Ng, 2011). Unfortunately, the owner, Ho Tung’s granddaughter Ho Min-kwan, totally opposed the idea of preservation, and insisted on retaining the site and redeveloping it into entirely new buildings. “This has led to an unprecedented clash between the owner of the house and the government over the public’s right to determine the fate of historic properties”, a writer commented (Tsui, 2012). Ho Min-kwan adamantly declined the government’s offer of a land swap, saying that preserving Ho Tung Gardens wastes too much money and makes no sense, and it is against her wishes (Benitez, 2011). As no agreement was reached, the government announced in 2012 that it would not declare the villa a monument. It is always the policy of the Hong Kong government to respect private property right. Therefore, the project to preserve Ho Tung Gardens failed. And the then Secretary for Development, Paul Chan, admitted a policy failure (Ng & Wong, 2012). What then is a private property right? Is it really so “sacred” and inviolable that it trumps other considerations, for example, that of heritage preservation? Or is there really a “public’s right to determine the fate of historic properties”? If heritage is a crucial common good of our community, should it be a right of community too? And how should we tackle the conflicts between the private property right and the community heritage right? In recent decades, heritage preservation has been a controversial issue. In Hong Kong, there is a shift in the public’s attitude that more and more people think substantial and proactive work should be done to preserve heritage. Heritages can be deemed as cultural properties having historical, cultural, social and even economical values. From a moral point of view, in order to better our society and attain human flourishing, we all have an obligation to heritage preservation. Therefore, the government needs a policy that affirms an intangible value in preserving our heritage, for the benefit and enjoyment of present and future generations. Nevertheless, this could pose a serious problem in urban policy: if the heritage concerned is the private property of individual(s) or enterprises, should heritage preservation trump protection of private

5 Should Heritage Preservation Trump Protection of Private Property Right?

71

property right? Dworkin’s famous metaphor of “trumps” reminds us that for some scholars some rights, private property rights being one of them, have a very high priority in policymaking that they trump other objectives (such as heritage preservation). But is it really the case? How should we justify private property right, and how should we specify this right and delimit its scope against other considerations? Nevertheless, should we treat heritage preservation also as a right of the community? If yes, how should we solve the conflicts of these two kinds of rights? In this chapter we shall try to tackle these problems on the theoretical level by utilizing resources from the traditional Chinese thought, namely, Confucianism, which is the core value system in Chinese culture. As Chinese we should examine our own cultural tradition, to investigate whether and how its moral resources are capable of recognizing, justifying and specifying the concepts of rights and human rights. Chinese values still affect us and still act as the background of our thinking and acting. Moreover, the present writer thinks that global discussion about, and the agreement on human rights must take culture as its point of departure. In Chinese culture, the ethical and political reflections of Confucianism (we shall limit our investigation to the thought of Confucius 孔子 and Mencius 孟子, as the two represent the essential basis of Classical Confucianism) would be the most suitable resources for our task. The structure of the chapter is as follows. First of all, the meaning of “rights” would be clarified. In particular, I will examine whether, and to what extent, Confucian thought would entail a concept of rights. In the second part, based on this Confucian concept of rights, we would delineate a Confucian theory of private property which can be justified by the teachings of Confucius and especially Mencius. We would see that Confucianism provides a quite different picture of understanding private property right which would not treat private property right as an unconditional “trump” overriding other values, for example, that of heritage preservation. In the third part, justifications would be given to show that heritage preservation is also a right (to culture) of people, which poses an inevitable conflict and tension between such right and private property right. We shall examine how Confucian thought can shed light on easing this tension, and how Confucian thought would justify that certain cases of heritage should be preserved based on two main reasons: homage to humanity and its cultural achievements, on the one hand, and the welfare rights-claims of the future generation of enjoying cultural heritage, on the other. In the final part, the cases of King Yin Lei and Ho Tung Garden will be used to demonstrate the applicability of the theories proposed.

5.2 Discussion 5.2.1 Rights and Confucianism Many scholars have engaged in the debates over “Asian Values” in the past decades. Some claimed that because of the emphasis on family and community, Confucianism

72

K. Ying

does not esteem individual autonomy and therefore is not supportive of the concept of rights. In this section we would clarify the basic concept of rights, and examine whether, and to what extent, Confucianism would entail a conception of right, even though this particular conception is not quite the same as the Western conception. From the modern point of view, to have a right to X is to be entitled to X. That means someone is justified in making a claim to X if he/she has this right (Donnelly, 1989, pp. 9–10). Using the language of Ronald Dworkin, we can say this claim “trumps” all other considerations that are relevant to the specific case (Dworkin, 1978, p. XI). Or to quote from Joseph Raz, X has a right if and only if X can have rights, and, other things being equal, an aspect of X’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty. (Raz, 1986, p. 166)

This means when someone is entitled to a right, there would be someone else who bears a corresponding duty, the former being the right-holder and the latter being the duty-bearer. The “duties correlative to rights ‘belong’ to the right-holder, who is largely free to dispose of those duties as he sees fit” (Donnelly, 1989, pp. 9–10). Surely, not all interests would be protected by rights; only those interests considered important enough to place others under a duty would be deemed as rights. From a moral point of view, a duty-bearer has a corresponding duty to respect the rightholder’s claim which should not be denied lightly. For example, when I claim I have the right to free speech, I am the right-holder and the others are the duty-bearers, who have to respect my freedom of speech. Moreover, the idea of “human rights” was proposed to designate those inalienable, fundamental rights which are universal that all human beings possess no matter what their age, sex, ethnicity, language, location, culture, religion, etc., are. According to the Universal Declaration of Human Rights (UDHR, 1948) of the United Nations, human rights consist of a number of civil and political rights as well as economic, social and cultural rights (following the line of thought from John Locke, a right to property being one of them mentioned in Article 17). Because of the catastrophes witnessed in World War II, UDHR was the first international legal effort trying to remind that countries as duty-bearers have duties towards their citizens as right-holders (remember the rights–duty relationship mentioned above). The spirit of UDHR, in its own words, is that “[…] recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” (Preamble of UDHR). But the human rights mentioned in UDHR and other relevant international covenants and documents are still vague and general. Although human rights are universal, there must be cultural variation, in terms of their practical application (Flakk, 2003, p. 31). Moreover, according to Joseph Chan, applying culture in human rights thinking may make the rights less alien and more receptive to the cultures in question (Chan, 1999, p. 212). Every one of us takes our own culture as our point of departure in thinking and acting. And we should examine the moral resources of our own culture to see if it can recognize, justify and specify the human rights in question, in order to attain intercultural agreement on these human rights. That’s why the writer of this chapter

5 Should Heritage Preservation Trump Protection of Private Property Right?

73

would like to investigate how Confucian thought can shed light on the problem of the relation between private property right and heritage preservation, especially in the context of Hong Kong. Some scholars held the belief that ancient Chinese was against the concept of rights, or at least without the concept of rights. Henry Rosemont, for instance, elaborated his points by examining the ancient Chinese language and found out that ancient Chinese language lacked any explicit expression for rights, therefore the ancient thoughts (Confucianism, for example) contained in this language cannot accept or even understand rights (Rosemont, 1988, p. 173). But it is one thing that ancient Chinese did not have a clear expression of rights, it is quite another that ancient Chinese did not have the concept of rights. The former cannot deduce the latter. Seung Hwan Lee once famously asked, how could Confucianism even think of concepts like property, promise and contract (which it did), if it did not understand the concept of rights as conceptual basis (Lee, 1992, p. 242)? Even though there was no expression of rights in ancient Chinese language, ancient Chinese thought (Confucianism, for example) could still entail a conception of rights. There are many instances in the classical Confucian works that show recognition and understanding of rights. We can see an oft-quoted example in Mencius: Mencius said to the king Xuan of Qi, “Suppose that one of your Majesty’s ministers were to entrust his wife and children to the care of his friend, while he himself went into Chu to travel, and that, on his return, he should find that the friend had let his wife and children suffer from cold and hunger—how ought he to deal with him?” The king said, “He should cast him off”. (Mencius, Liang Hui Wang II. James Legge’s translation cited in Chinese Text Project1 )

We can, emphasizing the rights–duty relationship, easily recapitulate the above message as: the minister’s friend had a duty to take care of the minister’s wife and children, while the minister certainly had a corresponding right to have his wife and children taken care of (Kwok, 1998, p. 88; Lee, 1992, p. 247). The minister’s friend was the duty-bearer while the minister himself was the right-holder. It seems quite clear that rights–duty relationship did exist in Confucian thought, nevertheless Confucianism based on its distinctive ethical thinking emphasized the duty part while the rights part was entailed without a typical rights-language. For example, in father–son relationship, which is one of the five cardinal relationships in Confucian thought, filial piety can be re-stated in rights–duty relationship: children have duties to their parents, while the parents have corresponding rights to their children. Even though Confucianism does entail a concept of rights, would it endorse the concept of human rights? The present writer thinks the answer should be affirmative. Let’s revisit the following famous passage in Mencius: When I say that all men have a mind which cannot bear to see the sufferings of others, my meaning may be illustrated thus: even now-a-days, if men suddenly see a child about to fall into a well, they will without exception experience a feeling of alarm and distress. They will feel so, not as a ground on which they may gain the favour of the child’s parents, nor as a 1

The Chinese Text Project is an online open-access digital library that makes pre-modern Chinese texts available to readers and researchers all around the world (https://ctext.org/).

74

K. Ying ground on which they may seek the praise of their neighbours and friends, nor from a dislike to the reputation of having been unmoved by such a thing. (Mencius, Gong Sun Chou I. James Legge’s translation cited in Chinese Text Project)

Mencius makes it very clear that every human being, because of a common heart– mind that cannot bear to see the sufferings of others, no matter who he/she is, has an unconditional duty to save this falling child, no matter who this child is. Once again, Confucianism emphasized the duty part while the rights were tacitly entailed: all human beings have this universal moral responsibility to save the life of a falling child, while correspondingly anyone who happened to be this child has the universal right to be saved. This is nearly the same as saying that every human being has the positive right to live, which is a basic human right. (It is out of the scope of this chapter to investigate the other human rights that Confucianism may endorse, except that we shall examine the private property right and heritage preservation right later in this chapter.) It is a common observation that traditional Chinese ethics value much of the caring of the young, the weak and the old people. And now we can infer that it is because all of us were considered to have the responsibility to take care of these young, weak and old people, consequently and implicitly these young, weak and old people have the corresponding right to be cared, which at least was a real belief in our traditional society. Following the logic of Mencius’ thinking, we can say in mainstream Confucianism (surely Mencius was its founder following Confucius), human nature (the universal heart-mind which is the foundation of our ethical values and moral potential) and moral duties are first-order and explicit concepts that Confucians emphasized untiringly, whereas rights are only second-order and implicitly entailed. From this we can draw a number of inferences. Firstly, the justification of human rights, for Confucianism, would be the universal human nature and its moral potential. Human rights can be seen as a measure protecting the development of this moral potential into a virtuous and flourishing life. To take the example of taking care of our own children: in order to fulfil the responsibility of taking care of them, I need some support from the surroundings and related people. I need the right to work for a living and the right to keep the private property, in order to have resources for our children’s well-being. I need the right to have cooperation from my family, so that the heavy work can be shared. Last but not least, I need the right to have the filial piety of my children, which makes my caretaking easier and I can have their love and respect in a return for my hard work. This makes the above-mentioned rights–duty relationship even more complicated: not only that each duty of mine implies the corresponding rights of the other but each duty of mine also implies corresponding rights of mine, in order for me to fulfil the duty successfully in cooperative human relationships. In traditional Confucian thought, in which moral duties are first-order and explicit concepts that Confucians emphasized, we would more often put it in the way that duties are reciprocal in human relationships: when I have the duty to take care of my own children, the government has a reciprocal duty to allow me to work and have private property, my family members have a reciprocal duty to work together for the common good of the family, and my children have a reciprocal duty to have filial

5 Should Heritage Preservation Trump Protection of Private Property Right?

75

piety to me. This is what Confucianism accustomed to say when the rights-language of the West has not yet been available to ancient Chinese. Secondly, comparing with the Western conception of human rights which deemed the claim of rights “trump” all other considerations, obviously Confucianism takes a more moderate point of view towards rights. According to the theory of human nature of Mencius, all human beings are born equal in moral potential which should be cultivated and developed into morally mature personalities. That means as humans we are first and foremost moral agents capable of cultivating virtues (most importantly benevolence and righteousness), practicing rites, pursuing our proper obligations towards others and supporting a decent and harmonious public order. In this way we can altogether develop into a virtuous and flourishing community, while virtues are necessary for the promotion of the common good of our family, our community and even the world. In all these self-cultivating activities, we are urged to fulfill our duties virtuously (duties come from the virtue of righteousness, which demands the right actions of moral virtues. In other words, dutifulness refers to the proper display of virtues and Confucianism places moral virtues and right actions above other considerations), not to claim our rights demandingly (which may stimulate quarrels and litigations which are not good in the Confucian viewpoint; they may destroy relationships and social harmony); the first-order concept is the duty (righteousness), not right. Rights are only fallback apparatus (後備設施). “Fallback apparatus” is a critical idea proposed and coined by Joseph Chan in explicating the concept of rights in Confucianism (Chan, 1999). Rights, in this interpretation, are only a means to virtuous and flourishing life of both individual and community. Being a means tells us that rights will be set aside if they fail to serve the function (moral development and human flourishing) or if there are other ways more effective in bringing out the goal in question. It goes without saying that Confucianism thinks that cultivating virtues, practicing rites, education and edification and mediation (when conflicts occur) are all effective ways to the goal more powerful than claiming for rights. Rights are “the last resort for situations when virtue fails and harmony breaks down” (Flakk, 2003, p. 94). Individuals in Confucian community are expected not to make demanding and excessive rights-claims, which would hinder human relationships and making everybody defensive and calculative. Relationships are supposed to be based on virtues (benevolence and righteousness) but not on rights-claims. Take the example of father–son relationship once again. Confucius says, “When the prince is prince, and the minister is minister; when the father is father, and the son is son” (The Analects, Yan Yuan. James Legge’s translation cited in Chinese Text Project). Father and son have reciprocal duties to each other: Father should nurture and love his son, while son should have filial piety towards his father. These are the virtuous actions that their reciprocal duties demand. If both of them fulfil their duties, the relationship would be good and no talks about rights should be invoked. But, for example, when the father behaves not as a correct father and maltreats his son (think about the famous story of Zengzi 曾子 that his father once lose his temper and tried to punish him and beat him unto death, and Confucius commented “bear the punishment with small stick, flee the punishment with big stick 小杖則受, 大杖則逃”), then the son should be allowed to claim his right to protect his own self-interest against unreasonable

76

K. Ying

actions from his father. Confucianism does not advocate “foolish filial piety 愚孝”, when virtue fails and harmony breaks down, rights are invoked as the last option, in order to guarantee basic interests (i.e., human rights) intact. Thirdly, as shown gradually from the above discussions, Confucianism has a communitarian outlook which is quite different from the individualism of the Western liberal tradition. According to the orthodox liberalism, because of the radical autonomy of the individual, liberalism prioritizes individual over the family and the state, making the rights of individual a trump over community and its collective interests. Dworkin says that rights “trump” collective goals (Dworkin, 1978, p. XI) while Rawls afterwards claims that each person “possesses an inviolability founded on justice that even the welfare of the society as a whole cannot override” (Rawls, 1999, p. 3). In this line of reasoning, individual human rights are to be championed above the common good in case these two collide. Community is seen either as an oppressive power or as an instrument to the personal goals of individuals. And this is in accordance with the common liberal viewpoint to see human rights as “freedom from” (negative freedom) oppressive tendencies of the family and the state. In the Western culture, individuals are often seen as in conflict and opposition to communities. But this Western liberal tradition cannot and should not monopolize the concept of rights. As Nadeau said, “Talking about rights in terms of a fundamental opposition between individual and the community is counter-productive to intercultural dialogue. The concept of rights does not depend upon Western individualism…” (Nadeau, 2002, p. 111). Confucian self is not an atomic self (as that of the Western counterpart) which is independent of the world and the others. Quite the contrary, our reflective self was evolved from and nurtured by our family and society, and this self is a centre of relationships living within all sorts of community life (from family to state to TianXia [天下]) and in the intimate dimensions of languages, histories and cultures. We are not indifferent to our community; quite the contrary community life is essential and internal to ourselves. Human rights, to Confucianism, are not merely the business of atomic individuals to get rid of the restraints of the communities. Quite the contrary, human rights (as a measure protecting the development of our universal moral potential into virtuous and flourishing lives) aim at “freedom for” participation in the totality of human relationships (Nadeau, 2002, p. 112). In the moral development and human flourishing of every one of us (for which both virtues and rights ensure), both the “individuals” (Nadeau aptly coined “individuals-in-community” to designate this special understanding of Confucian concept of persons who are embedded in community life) and the communities would benefit. Therefore, rights are no longer “individualistic” that concern atomic individuals only. However, this does not mean that the collective would swallow the individual and deny the freedom of these individuals-in-community. Confucianism does not accept individualism, which thinks that the individual absolutely precedes community; but Confucianism does not accept collectivism either, which emphasizes the community over and against an individual to the point that community overrides and dictates the individual. In the Confucian ideal, individual and community are in the relation of reciprocal interaction (雙向互動). We can cultivate our virtues and attain human

5 Should Heritage Preservation Trump Protection of Private Property Right?

77

flourishing only in community life, by our own efforts. Our self is the centre and starting point for moral development, that’s why Confucius says, “In ancient times, men learned with a view to their own improvement” (The Analects, Xian Wen. James Legge’s translation cited in Chinese Text Project). Today we still call Confucianism by the name of “Learning for oneself (為己之學)”. According to “Da Xue”2 (大 學), “From the Son of Heaven down to the mass of the people, all must consider the cultivation of the person the root of everything besides” (“Da Xue”. James Legge’s translation cited in Chinese Text Project). Everything of value and importance begins with the self (or our self-consciousness). Nevertheless, community provides for us, so we should repay the debts by contributing to the community and participating virtuously in the relationships, which in turn keep the community evolving and flourishing (in the process of cultivating our persons, regulating our families, ordering well our states and illustrating illustrious virtue throughout the kingdom, to cite “Da Xue”). In this process we gain our consciousness and freedom in actualizing our moral potential, to be authentic and active moral agent who is not dictated by the community but is self-determined and self-motivated. Anyway, if cultivating virtues, practicing rites, education and edification and even mediation fail to attain social harmony and common good of the community, then individual rights as fallback apparatus should be called up and protected. That’s why some scholars think that “Confucianism supports human liberation for individuals-in-community” (Nadeau, 2002, p. 107). Surely human rights play the role of fallback apparatus here to avoid individual’s victimization to the wrongdoings and mistreatments (if any) of communities such as family and state. Fourthly, as Confucian thought does not have the individualistic supposition, we should say not only individuals have rights; groups (family, community, state, etc.) can have rights too. As groups usually have their own duties, they can be duty-bearer and right-holder. We shall elaborate on this point later.

5.2.2 Private Property Right from the Confucian Perspective Having elaborated the Confucian concept of rights, now we shall proceed to investigate how Confucianism sees private property and whether Confucianism would endorse the concept of private property right. To many people’s surprise, Confucianism is not at all antithetical to, and even supportive of private property rights. We can illustrate this by some quotes from Mencius. They are only men of education, who, without a certain livelihood (恆產), are able to maintain a fixed heart. As to the people, if they have not a certain livelihood, it follows that they will not have a fixed heart. And if they have not a fixed heart, there is nothing which they will not do, in the way of self-abandonment, of moral deflection, of depravity, and of wild license. When they thus have been involved in crime, to follow them up and punish them—this is to 2

Da Xue or Great Learning is an article attributed to one of Confucius’ disciples, Zengzi. It is one of the “Four Books” in Confucian classics.

78

K. Ying entrap the people. How can such a thing as entrapping the people be done under the rule of a benevolent man? (Mencius, Liang Hui Wang I. James Legge’s translation cited in Chinese Text Project)

Here 恆產 would be better translated to “permanent property”,3 which means private property in ancient Chinese. We can see that Mencius agrees that people should have private property in order to have a better living, otherwise they will not have a fixed heart and will be involved in crime and immoral actions. It is a common thought in Confucianism that proper material living is a necessary condition for people to attend to their self-cultivation: Now, the livelihood of the people is so regulated, that, above, they have not sufficient wherewith to serve their parents, and, below, they have not sufficient wherewith to support their wives and children. Notwithstanding good years, their lives are continually embittered, and, in bad years, they do not escape perishing. In such circumstances they only try to save themselves from death, and are afraid they will not succeed. What leisure have they to cultivate propriety and righteousness? (Mencius, Liang Hui Wang I. James Legge’s translation cited in Chinese Text Project)

As mentioned before, if it is a moral duty for a person to provide for his parents and children, then he should have the right to work for a living and the right to private property. The above message of Mencius confirms this line of thought. Without property, a person cannot properly fulfil his moral duties, and he will not have the time and energy to cultivate virtues and observe rites. As seen from the Confucian justification of rights, private property right is a measure to ensure moral development and flourishing life. Taking the example of father–son relationship again, the practice of filial piety is central to the Confucian self-cultivation. But if a person lacks enough material backup, he would be unable to serve and provide for his parents. Moreover, when his parent died, he cannot arrange a proper funeral to express his sorrow. All these actions and rites are important to Confucianism, as Confucius once said, “The superior man bends his attention to what is radical. That being established, all practical courses naturally grow up. Filial piety and fraternal submission!—are they not the root of all benevolent actions?” (The Analects,4 Xue Er. James Legge’s translation cited in Chinese Text Project). To fulfil our moral duties towards our parents demands a certain amount of wealth and property (a field to farm or a place to live), so that we can have a better living to cultivate virtues, to gain the ability and tools to perform rites and express filial piety. Therefore, we can conclude that the Confucian virtue of benevolence requires private property. And naturally it is the duty of the ruler to provide a stable and orderly society for people: Therefore an intelligent ruler will regulate the livelihood of the people, so as to make sure that, for those above them, they shall have sufficient wherewith to serve their parents, and, for those below them, sufficient wherewith to support their wives and children; that in good 3

Can refer to Bryan W. Van Norden’s translation, for example, Van Norden, trans. (2008, p. 66). Being one of the most important Confucian classics, the Analects was written by Confucius’ followers containing teachings of Confucius and conversations of Confucius and some of his disciplines and contemporaries.

4

5 Should Heritage Preservation Trump Protection of Private Property Right?

79

years they shall always be abundantly satisfied, and that in bad years they shall escape the danger of perishing. After this he may urge them, and they will proceed to what is good, for in this case the people will follow after it with ease. (Mencius,5 Liang Hui Wang I. James Legge’s translation cited in Chinese Text Project)

If people as right-holder have a private property right, state or ruler as duty-bearer has the duty to allow and protect such right. The word “regulate” implies that the state or ruler was thought to have a duty to ensure individuals can have a reasonable amount of private property, and step in to “regulate” (制 i.e., redistribute) property (they have this power because they have the duty mentioned, but certainly in the condition that they should not abuse this power) when there is harm to society—either someone has too much, or someone has too little. (This implies not only private property right but also a positive right of welfare and resource re-distribution. Due to the scope of this paper, the latter would not be further investigated.) This follows from Confucius’ principle that “I have heard that rulers of states and chiefs of families are not troubled lest their people should be few, but are troubled lest they should not keep their several places” (The Analects, Ji Shi. James Legge’s translation cited in Chinese Text Project). The regulation and management of the government can improve the relationship (“trust” emphasized by Confucius) between the government and the governed, making the government more recognized, the society smoother and more harmonious. Private property makes families better-off materially, and it also increases the stability and prosperity of society, which is an important common good that all of us as moral agents strive for. Here we care not only for morality itself, but also for our well-being which is demanded by our morals: Let mulberry trees be planted about the homesteads with their five mu, and persons of fifty years may be clothed with silk. In keeping fowls, pigs, dogs, and swine, let not their times of breeding be neglected, and persons of seventy years may eat flesh. Let there not be taken away the time that is proper for the cultivation of the farm with its hundred mu, and the family of several mouths that is supported by it shall not suffer from hunger. (Mencius, Liang Hui Wang I. James Legge’s translation cited in Chinese Text Project)

In this ideal picture depicted by Mencius himself, people have their own “homesteads” (private property), and in it, they can make a better living. In a private property regime, people would be better-off, and society as a whole would be more stable, prosperous and harmonious. Land ownership is justified by this. Neither Confucius nor Mencius ever opposed wealth and its accumulation, only that they both worried that uneven or unjust distribution of wealth would harm the people and society of their well-being and stability. “Riches and honours are what men desire”, thus spoke Confucius (The Analects, Li Ren. James Legge’s translation cited in Chinese Text Project). They did not look down on money making (think about Confucius’ wealthy pupil Zi Gong who was a successful merchant) or the economic system. From the above analysis, we can go a step further to claim the Confucian virtue-based ethics “requires” a “privately-owned economic system” (Fan, 2010, 5

Mencius is also a Confucian classics. It was written by Mencius himself and his disciplines. And is a collection of teachings of Mencius and conversations of Mencius and his disciplines and contemporaries.

80

K. Ying

p. 65). In this economic system we can enjoy the freedom and right to pursue our own way of life, gain and accumulate wealth, exchange in a free-trade market, enjoy the productivity of the society and efficient division of labour. Mencius says, “The getting those various articles in exchange for grain, is not oppressive to the potter and the founder, and the potter and the founder in their turn, in exchanging their various articles for grain, are not oppressive to the husbandman. How should such a thing be supposed? And moreover, why does not Xu act the potter and founder, supplying himself with the articles which he uses solely from his own establishment? Why does he go confusedly dealing and exchanging with the handicraftsmen? Why does he not spare himself so much trouble?”. (Mencius, Teng Wen Gong I. James Legge’s translation cited in Chinese Text Project)

Mencius clearly is in favour of the division of labour and free market. “This is a principle universally recognized”, Mencius said (ibid.). Property and its alienability make such a free-trade system possible, which in turn makes our lives more efficient, productive and healthy. This economic efficiency saves our time and energy, making it possible for us to further cultivate our virtues and cultures. Once again, this economic efficiency being a justification of private property right shares the common concern for moral development and human flourishing, which is the final goal of our rights protection. Therefore, the present writer thinks that Confucianism has sufficient reasons to endorse a concept of private property right, for the service to the moral development and human flourishing of the individuals-in-community.

5.2.3 Heritage Preservation as a Right Now we have defended that Confucianism can endorse a concept of private property right. But actually, Confucianism provides a quite different picture of understanding private property right which would not treat private property right as “trump” overriding other values, for example, that of heritage preservation. John Locke, the classical liberalist in the Western history, identifies life, liberty and estate (private property) as the natural rights of each individual which could not be surrendered. Because these rights are inalienable and absolute against the power of others especially the government, the government has the duty to respect and protect them. Although nowadays liberalists rarely endorse this kind of Lockean absolutist view of private property right, many liberal governments still treat respect for private property as an imperative to follow. However, the Confucian idea is quite different. The private property right is not an absolute trump, but instrumental to the moral development and human flourishing of individuals and the common good of the communities. As there can be a good number of rights (both individual rights and community rights) which can lead to the good of individual and the common good of the community, any one of these rights can be set aside, if it fails to serve the function and there are other instruments more capable to serve. Moreover, when there are a good number of rights, they can be competing and conflicting to the point that the meaning of “trump” no longer stands meaningfully.

5 Should Heritage Preservation Trump Protection of Private Property Right?

81

That is why, as mentioned in the above analysis, the government is considered to have an authority to “regulate” private property if the uneven distribution of property is leading to disastrous consequences. Not only that. Apart from the individual rights we are familiar with (thanks to the teachings from Western culture), there are also community rights that we should not neglect. For example, the communal right to culture (of which heritage preservation is an aspect) and the communal right to property (“common ownership” of community) would be two very important community rights we have to take into consideration in this chapter. The right to culture can be an important communal right. In this section we would provide justifications to prove that heritage preservation can also be a right of people, which poses an inevitable conflict and tension between private property right and this right to heritage preservation. Firstly, heritage as tangible objects or building structures has historical, cultural, social, and economic values that should not be easily undone. The present writer has written a paper illustrating them (Ying, 2020). To briefly recap the main points: Heritage is historical evidence of the past that people valued and admired. It is unique and precious and may have special aesthetic and architectural value. It represents a community’s culture, history as well as its identity. Socially speaking heritage shapes our life world and social imaginary which is the background of our articulation of meanings and values. And last but not least, heritage can be precious assets of a place, add goodwill to a city, be restored for all sorts of uses for the general public and attract visitors. Secondly, because heritage has such high values, it should not be too readily demolished, more and more scholars point out that heritage preservation is a human right and heritage should not be privatized or possessed solely by any individual. As Harding said, “cultural property does not really belong to anyone… that all of us have a duty towards cultural property because of its relative scarcity and profound significance” (Harding, 1997, p. 760). Heritage should not be anyone’s private property, because it is too precious to the community: it educates and deepens the understanding of our community and nation, it stimulates the team spirit and solidarity of our society, it builds the home feeling (social imaginary) of us, it defines our cultural identity, it maintains our spiritual well-being, and it shapes our national character. It should be the common property of fellow citizens or even the whole of mankind. The urge to pursue our own unique collective identity and sense of citizenship produces the demand to preserve our collective memory and history. Feeling at home is a basic requirement for any human being to live and function well in any society. And heritage preservation is a crucial means to this pursuit. Eventually, this awakening of the sense of heritage preservation is something we cannot ignore in public policy making. And that’s why people and institutions (for example, UNESCO with their designation of World Heritage Sites) deem cultural heritage as a basic human right needed to be protected. People (as a community) have cultural rights to live in and enjoy their own culture. The preservation of cultural heritage is not about ownership of property in the traditional sense; it is about the recognition of heritage as “common ownership” belonging to communities (Gillman, 2007, pp. 114–131). Therefore the government has a corresponding duty to “regulate” the ownership of

82

K. Ying

heritage (if the heritage legally belongs to some individual(s), and the government can try to deal with the owner to buy the heritage and land, or even expropriate it with compensation, to the extent that private property right is still being respected) and to manage the heritage in the interests of the community, in a way that acknowledges the right of affected community, consults them and encourages them to participate in management. Thirdly, in considering the right to heritage preservation, we should not only think of the rights or interests of our present generation but also those of the past generations and the future generations as well. Let’s first consider the past generations. Do they hold legitimate claims or rights against us? We can reframe the question in a Confucian way of understanding: do our decisions and actions affect the moral development and human flourishing of the past generations? At first glance it seems not. (Because we cannot do good to them or harm them directly) But we can still think about those past people (perhaps with high artistry and future-oriented expectation) who built the extraordinarily valuable cultural heritage to bequeath to us and to more remote future generations. Every generation afterwards has a moral duty to act as trustee of the heritage, because this heritage is a precious token that these past people entrusted to us. We should not deny the value of the great effort of these past people and we owe respect to them. Therefore, these past people have the right to claim our respect and preservation of the heritage, in order to make the meaning of their effort and creation lasting and complete (which can be seen as a part of their life meaning and the accomplishment of their future-oriented projects). How about the future generations? As fellow humans who should be able to pursue their own moral development and flourishing, we should certainly take care of their rights, as our actions certainly can affect their world and therefore their well-being. We have the moral duty not to harm their interest in cultural heritage, by not willfully destroying the inherited heritage and preserving it and passing it on to future generations. They have their own right to heritage preservation which we as duty-bearers cannot ignore. In these considerations we found out that intergenerational justice would be a good reason for us to preserve heritage: we not only have the right to heritage preservation (as right-holders ourselves), but we also have the duty to heritage preservation too (as duty-bearers responsible to the past as well as future generations). Heritage preservation is a new idea not known to the ancient Confucians. Therefore, there was not much resource in their writings which is relevant to this specific discussion. But we can still say that the analysis in this section coincides with the values of Confucianism and Confucius’ own teaching, “A transmitter and not a maker, believing in and loving the ancients” (The Analects, Shu Er. James Legge’s translation cited in Chinese Text Project). The twentieth-century Confucian thinkers (some of them known as Contemporary Neo-Confucians), Tang Jun-yi, for example, started to notice this issue. According to Tang’s Confucian interpretation, all kinds of cultural activities and products are the manifold expressions of a moral self or spiritual self, which each one of us should respect and protect. This moral self or spiritual self (apart from the particular metaphysical contents conceived by Tang himself) is the Confucian self which strives for self-manifestation in moral development and human flourishing of both individuals as well as communities. This moral

5 Should Heritage Preservation Trump Protection of Private Property Right?

83

self has the right to grow, and the others have the corresponding duties to work with it, respect it and sponsor it. As a result, we have the moral duties to pay homage to humanity and its achievements; to respect the cultural activities and products of our predecessors; to preserve, develop and perpetuate the resources handed down to us; and we also have the moral duties to pass on valuable cultural products to the future generations for their goods, for example, their enjoyment of cultural heritage (Tang, 2005, pp. 58–59, 85–87). “Cultural inheritance and perpetuation 文化傳承” is what Confucianism heavily valued, as we individuals-in-community cannot live meaningfully and flourishingly without the cultural and traditional lifeworld handed down to us, on the one hand, and the experiences and wisdom of the others and common life of the community, on the other.

5.2.4 Resolving the Conflicts Arising from Heritage Preservation: The Cases of King Yin Lei and Ho Tung Garden Now we have learned that both private property right and heritage preservation right (being part of cultural right) can be justified. Then what should we do when they are in conflict? First of all, we can treat all the human rights as an organic whole in the sense that individual rights could only be protected when conceived and considered in conjunction with other rights. This is in line with the Confucian idea that human rights share the common concern for moral development and human flourishing of both individuals-in-community as well as the community at large. Usually when we respect some of the rights but ignore the others, leaving duties not fulfilled and making people’s interests hurt, moral development and human flourishing can hardly be obtained. In the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights (1966) it was stated that “The ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his social, economic and cultural rights”. Without civil and political rights people cannot legally and effectively protect their economic, social and cultural rights. At the same time, without livelihoods and a working society, people cannot protect or even make use of their civil or political rights. It should be said that all human rights are important in the sense that each of them protects us and promotes our well-being in different aspects and dimensions. Only because in policy making when a government cannot ensure the perfect implementation of all the human rights (not only because rights can be contradictory among themselves, but also because protecting rights has a cost to pay) that priorities between rights should be determined. This is why we mentioned before that when there are a good number of rights, they can be competing and conflicting to the point that the meaning of “trump” no longer stands meaningfully. We should trade-off

84

K. Ying

between the rights, when fulfilling all of them perfectly is not an available option. “If every possible human rights element is deemed to be essential or necessary, then nothing will be treated as though it is truly important” (Alston, 2005, p. 807). Therefore, prioritization of rights (and not treating them all equally as “trump”) is crucial for pragmatic reasons. Certainly, prioritization is not the license to sacrifice any rights easily. As Philip Alston said, “…the call for prioritizing is not to suggest that any obvious violations of rights can be ignored” (ibid.). We should respect human rights as far as possible, while making the best use of our effort to ensure the most important ones and also to prevent the belittlement of the others. These being said, how should we prioritize between private property right and heritage preservation right? In the following I would argue that although private property right has been deemed as an important basic human right according to the Western liberal tradition and it is usually prioritized before other rights (for example, our cultural rights), we can find sophisticated ways to solve the tension between it and the communal right to heritage preservation. As classical liberalist John Locke famously claimed, private property right is a result of labour, endowed by the natural law from God independent of government. Hereafter the liberal tradition of Western thought (although the natural law theory of Locke was not always agreed) has been supporting the importance of private property right as one of the most basic human rights, which any government should duly respect. The rationales are mostly clear to the modern mind: private property is a basic good which is crucial for securing our basic living and livelihood. Promoting private property right is promoting our human dignity and the significance of our labour and estate. Therefore, (compared to that of heritage) in nowadays liberal countries private property is clearly delineated and well-defined in legal terms and strictly protected by governments. Even though in the case of preserving important heritage sites, the government should comply with the property law, give due respect to procedure justice and cannot simply ignore the private property right of the owners. The Hong Kong government is a good example. In its governmental documents discussing issues of heritage preservation, “respect for private property” is always upheld and emphasized. In contrast with this strict clarity of private property, the concept of heritage is vague and not so rigid. Private property is objectively defined, while heritage is somehow more “subjective” in the sense that its definition and value depend on the understanding of our history and our social imaginary. The value of heritage is a matter of degree and is liable to changes; therefore, the value of heritage preservation is not an absolute imperative. Since the value of heritages is socially constructed, citizens are suitable candidates to sort out their relationship to, and use of, the past in their own authentic way according to their social imaginary (Harrison, 2009, p. 8). On the one hand, collective decisions are important in building up collective identity and social cohesion, but on the other, expert decisions are also not to be neglected to maintain professionalism and avoid populism. That’s why in Hong Kong, the Antiquities Advisory Board (AAB), which is a statutory body to identify and classify heritage (according to a three-tier grading system) and to record buildings of considerable historical and architectural significance, comprises of members who are

5 Should Heritage Preservation Trump Protection of Private Property Right?

85

professionals from various disciplines including archaeologists, historians, architects and planners (Hong Kong Ordinance Chapter 53). In order to ensure the value of equity and inclusiveness, we should balance or integrate expert decisions (represented by AAB and other governmental departments’ decisions) and collective decisions (as represented by participatory governance and bottom-up participation) to strike a balance among different stakeholders. Morally and politically, there is an awakening and enlightenment of the community right to cultural heritage as well as the duty to heritage preservation. However, we should also bear in mind that the determination of the value of any heritage is open to quarrels and is not an easy job. Moreover, when comparing to the right to private property, heritage preservation sounds more “luxurious”. It is commonly thought that denying private property rights can lead to very unhappy damages and tragic consequences, while denying the right to cultural heritage is “far less harmful”. Therefore, private property right is commonly prioritized before the need to heritage preservation, making the latter usually sacrificed if the heritage is originally privately owned. But it doesn’t have to be like this. As analysed above, Confucianism has sufficient reasons to endorse a concept of private property right, for the service to the moral development and human flourishing of the individuals-incommunity. And in line of this Confucian thinking, we should also respect private property for our human dignity and the significance of our labour and estate. Nevertheless, Confucianism thinks that the government has the right to “regulate” property (redistribution; surely not to abuse this right) and by its management to promote the common good of community (for example, to help ensure the community right to heritage preservation). The government has both the duty of respecting individual’s private property right and the duty of respecting community’s heritage preservation right. As mentioned before, we can treat all the human rights as an organic whole while different rights could be protected only in combination. Private property fulfils our material needs while heritage fulfils our cultural and spiritual needs. The latter is not merely a luxury, but a must for our social and cultural identity and spiritual well-being. Therefore, we need not deem the private property right of any land or building absolute, even though we have to respect the owner’s estate. This right of the owner can still be respected by purchase by agreement, for example, or compensation (through money or land replacement), according to the Lands Resumption Ordinance, in the law of Hong Kong. Interestingly to note, from the colonial past of Hong Kong, all land is legally owned by the government, and sales of land are in the form of leasehold for a definite period of years. The point of private property is not about the absolute ownership, but the due respect paid to the freedom, dignity, labour and estate of the owner. Therefore, private property and heritage preservation need not be in the relationship of unsolvable conflict. Private property should not be denied, but ownership can be changed by agreement. Government as dutybearer of heritage preservation right can negotiate with the owner and resume the land by agreement and compensation. In this way, both private property right and heritage preservation right can be saved. The crux of the matter, thence, would be the wishes of the owner. As shown in all the above analysis, the concept of rights

86

K. Ying

(and private property right being one of them) can be compatible with the Confucian Virtue Ethics, to the point that rights should be taken as a means to the moral development and human flourishing of the individuals-in-community. Individuals in Confucian community are expected not to make demanding and excessive rightsclaims, which would hinder human relationships making everybody defensive and calculative. Therefore the right-holder of private property right is not advised to treat his/her private property right absolute and in an egocentric way, rather should exercise his/her right virtuously, for the good of his/her own as well as of the community at large. We can take the two examples mentioned in the beginning of this chapter to clarify this. Both King Yin Lei and Ho Tung Gardens are built in “Chinese Renaissance” architectural style. “Chinese Renaissance” is an aesthetic that reinterprets traditional Chinese architectural form in the light of Western construction techniques. It was created by a group of primarily American-trained, first-generation Chinese architects who formed a movement for the rejuvenation of Chinese architecture in modern China. The movement began in the 1920s and developed prosperously throughout the 1930s before it was stopped by the Japanese invasion (Lee & Distefano, 2016). Another famous example of Chinese Renaissance architecture in Hong Kong is St. Mary’s Church in Causeway Bay. Actually in Hong Kong, King Yin Lei, Ho Tung Gardens and Haw Par Mansion are the last surviving examples of this “Chinese Renaissance” architectural style, and they are now rare and precious. The architectural and historical value of them cannot be underestimated. Apart from their aesthetic and architectural values, King Yin Lei and Ho Tung Gardens were built by then-prominent businessmen and philanthropists, Mr. Li Po Chun and Sir Robert Ho Tung, both of them (and their family members) were prominent community leaders in the years following the establishment of Hong Kong as a modern city and port. Moreover, Ho Tung Gardens is even the only remaining residence directly related to Sir Robert Ho Tung in Hong Kong. Sir Robert Ho Tung was the first non-European to be allowed to set up a home in the Peak, indicating the rising status of the Chinese community in the colonial history (Ng, 2011). On the other hand, King Yin Lei developed its special status in Hong Kong’s entertainment industry and film heritage that it was repeatedly featured in films and TV series by both international and local production (Hong Kong Government, 2008). Hence these two landmarks played irreplaceable roles in the history of Hong Kong society and culture. Therefore, the Conservancy Association of Hong Kong, in 2004, asked the Hong Kong government for the declaration of King Yin Lei as a monument. At that time, the Hong Kong government still had not declared any private property a monument. Due to the expansive cost of compensation, it refused to comply with the request (Chan, 2008, p. 225). Nevertheless, the owner of King Yin Lei, Yow Mok Shing, who was well aware of the values of the mansion that he stopped selling it because of the nongovernmental campaign, wrote to the government asking for a discussion of the preservation of the site. From this virtuous act of Mr. Yow, we can judge that he fully recognized the community right of heritage preservation and downplayed

5 Should Heritage Preservation Trump Protection of Private Property Right?

87

his own private property right, trying to have a satisfactory arrangement with the government. But the government made no reply, afterwards Mr. Yow sold King Yin Lei. Until in 2007 the new owner started the demolition of the mansion which was widely reported in the Hong Kong media. At that time the government reacted finally and declared the site a proposed monument and ordered suspension of the demolition (Information Services Department, 2007). Later the government and the new owner reached an agreement that the new owner surrendered King Yin Lei’s entire site to the government after restoration, in compensation the government granted an adjacent site of a size similar to King Yin Lei to the owner for his own development (Information Services Department, 2008). After the Hong Kong government took over the property in late 2010, King Yin Lei was graded as a declared monument. From this example we can note that the good intention of the property owners of the heritage is crucial for a happy ending: because of the willingness of the owners of King Yin Lei to help preserving the heritage, the heritage can be successfully restored and retained for the general public. Both Mr. Yow and the new owner showed a virtuous exercise of private property right which solves the conflict between rights and attains the common good of the community. The effort of the government contributed to a sense of collective ownership enjoyed by the community, while both the individual private property right of the owner and the communal heritage preservation right of the people is duly respected. According to the press release of the Hong Kong government, a spokesman for the Development Bureau said, “The statutory process to declare King Yin Lei has the full co-operation of the owner, who under the Antiquities and Monuments Ordinance is entitled to object by petitioning the Chief Executive but has chosen not to do so in light of good progress made in a land exchange proposal to preserve the building… In implementing this policy, it is paramount for the Government to achieve a proper balance between protection of historic buildings and respect for private property rights” (Hong Kong Government, 2008). But not all stories have happy endings. The second example, Ho Tung Gardens, is an unsuccessful case of heritage preservation. This Ho Tung Gardens, built by Sir Robert Ho Tung in the 1930s in the “Chinese Renaissance” style, have the immense historical significance of Hong Kong’s colonial past. Therefore, in order to save time for negotiations with the owner, the Hong Kong government declared it a “proposed historic monument” and thus imposing a 12-month moratorium on the demolition works in progress in 2011 (Ng, 2011). But the negotiations ended up in failure, Ho Tung’s granddaughter Ho Min-kwan (in her seventies at that period of time), strongly opposed the idea of preservation and insisted on retaining the site and redevelop it into entirely new buildings. In 2012, the Hong Kong government announced that it would not declare the gardens a monument and the mediation efforts were in vain at all (Ng & Wong, 2012). Afterwards, the principal building was demolished for redevelopment (‘Central Station’, 2013). If we look at the rationales given by Ho Min-kwan (Benitez, 2011), we would find most of them not so persuasive. Firstly, she said a scheme to preserve Ho Tung Gardens at a cost of billions of taxpayer dollars makes no sense. But as we mentioned before, the proven architectural and historical values of Ho Tung Gardens are too

88

K. Ying

significant to ignore. And we have to respect the community right of heritage that we should make a careful and reasonable judgement based on both expert opinion and collective decision. Secondly, she said the existing main building is “unexceptional” and the interior was changed. But according to the professional testimony of AAB experts, the overall aesthetic character of Chinese Renaissance architecture has been well maintained, and the beautiful gardens were well preserved too. And we also have to note the immense historical value of Ho Tung Gardens: Sir Robert Ho Tung was the first person of Chinese descent (his father English and his mother Chinese) to be allowed to set up a home in the Peak. The Chinese Renaissance-style building in the Peak was a statement that a racial barrier was being broken in the colonial Hong Kong. This is a precious record of Hong Kong’s history. Thirdly, she said it is barely visible to the public and relatively unknown. But the same can be said to King Yin Lei too. Originally it was relatively unknown to the public until the media and the advocacy group voiced out the issue and aroused the public. Nevertheless, it is not a good reason to belittle the great historical and architectural values of both heritages—the values of them have nothing to do with their popularity. Fourthly, she said even though the government proposed a land swap, it was her wish to retain the site as her home and preserve the family legacy, she has “feelings for the land”. Surely it is a reasonable claim of her private property right (although totally ignoring the community right of heritage). But interestingly to note, shortly after that, she sold Ho Tung Gardens in February 2015 for a sum of HKD5.1 billion. Therefore, we can reasonably doubt the authenticity and sincerity of her original “wish” of preserving her family legacy. In this example, the owner insisted on her private property right and was unwilling to compromise with the wish of the government and the general public. In the opinion of the present writer, Ho Min-kwan’s appeal for her private property right was not appropriate, or in the language of Confucianism, not virtuous enough. Being the owner, she is one of the duty-bearer of the community right of heritage preservation, so she was expected to respond to the demand of the public and to participate in the open discussions with the community, to try to secure a mutual understanding with the general public. But she was reluctant to do so and just gave negative comments unilaterally. As shown above, the rationales against the government’s proposal provided by her were not sound and sufficient. Surely, the private property right of individual(s) is not a trump to stop consultations, negotiations, and reasonable discussions. Land swap was a reasonable solution balancing the demand of heritage preservation and respect for private property, but she did not accept either. She downplayed the significance of the historic site and the community right of heritage and chose to sell the property afterwards at a price most expensive among residential plots sold by private tender in Hong Kong.

5 Should Heritage Preservation Trump Protection of Private Property Right?

89

5.3 Conclusion In Hong Kong, private property right enjoys full legal protection. However, as shown above, it is being challenged by the increasingly popular right to heritage by the community as a whole. From the Confucian perspective, individual-in-community and community at large are in the relation of reciprocal interaction. Neither should the private property right override the heritage right nor should the heritage right override the private property right. Education and edification should encourage each member of the community to participate actively in the communal life, cultivating virtues and practicing rites in order to attain moral development and human flourishing of both individuals and community. Rights are means but not ends-in-themselves, therefore we should exercise our own rights considerately and virtuously, for the general wellbeing and common good. If conflicts of rights happen, we should first of all try to solve them by negotiation and mediation but not by litigation or coercion. The owners of King Yin Lei set a very good example of virtuous exercise of rights, paying attention to the value of heritage preservation and willing to cooperate with the government to fulfil the corresponding duty. However, in the case of Ho Tung Gardens, negotiation did not work. On the one hand, private property right is not a trump to silent the demand of heritage preservation. On the other hand, respect for private property can still be a leading principle of the government. On the premise of respecting the legally protected private property right, the government needs to offer appropriate economic incentives to encourage private owners either to hand over the heritage or preserve the historic buildings in their ownership. Then the community right of heritage can be safeguarded too. The right of the owner can still be respected by purchase by agreement, for example, or compensation (through money or land replacement), according to the Lands Resumption Ordinance, in the law of Hong Kong. In the case of Ho Tung Gardens, the Chief Executive could still declare it a monument even though the owner did not agree. But the Chief Executive chose to decline. The obstinate problem is, the resumption of private land with heritage value will inevitably involve a huge amount of public money, as well as a lot of land and substantial resources. As Paul Chan, the then Secretary of Development, said the government believed that “not everyone would agree with spending billions of dollars of public money on private heritage sites”.6 This brings us back to the reality: although the government seeks to preserve appropriate historical and heritage sites and buildings, it also has to give due regard to a basket of different factors: development needs in the public interest, respect for private property rights, budgetary considerations, cross-sector collaboration and active engagement of stakeholders and the general public.

6

Ng and Wong (2012).

90

K. Ying

References Alston, P. (2005). Ships passing in the night: The current state of the human rights and development debate seen through the lens of the millennium development goals. Human Rights Quarterly, 27(3), 755–829. Benitez, M. A. (2011, December 19). Just leave my home alone. The Standard. ‘Central Station’. (2013, October 25). Bye-bye mansion dream, hello $25 billion. The Standard. Chan, J. (1999). A Confucian perspective on human rights for contemporary China. In J. R. Bauer & D. A. Bell (Eds.), The East Asian challenge for human rights. Cambridge University Press. Chan, M. K. (2008). China’s Hong Kong transformed: Retrospect and prospects. City University of Hong Kong Press. Donnelly, J. (1989). Universal human rights in theory and practice. Cornell University Press. Dworkin, R. (1978). Taking rights seriously. Harvard University Press. Fan, R. P. (2010). Reconstructionist Confucianism. Rethinking morality after the west. Springer. Flakk, T. (2003). Human rights the Confucian way. Towards international consensus on human rights from within cultural traditions. Paper submitted to the Department of Political Science, University of Oslo. Gillman, D. (2007). The idea of cultural heritage. Institute of Art and Law. Harding, S. (1997). Justifying repatriation of native American cultural property. Indiana Law Journal, 72(3), 723–774. Harrison, R. (2009). Chapter 1: What is heritage? In R. Harrison (Ed.), Understanding the politics of heritage. Manchester University Press. Hong Kong Government. (2008, July 11). King Yin Lei declared a monument (Press release). https:// www.info.gov.hk/gia/general/200807/11/P200807110148.htm. Information Services Department, Government of the Hong Kong Special Administrative Region. (2007, September 14). Heritage: King Yin Lei to be declared a monument. https://www.news.gov.hk/isd/ebulletin/en/category/healthandcommunity/070914/ html/070914en05002.htm. Retrieved 14 August 2021. Information Services Department, Government of the Hong Kong Special Administrative Region. (2008, January 25). Heritage: King Yin Lei to be declared a monument. https://web.archive.org/web/20080128182602/http://www.news.gov.hk/en/category/inf rastructureandlogistics/080125/html/080125en06010.htm. Retrieved 14 August 2021. Kwok, D. W. Y. (1998). On the rites and rights of being human. In T. De Bary & W. M. Tu (Eds.), Confucianism and human rights. Columbia University Press. Lee, H. Y., & Distefano, L. D. (2016, July). Chinese renaissance architecture in China and Hong Kong. The Institute of Historic Building Conservation. https://www.designingbuildings.co.uk/ wiki/Chinese_renaissance_architecture_in_China_and_Hong_Kong Lee, S. H. (1992). Was there a concept of rights in Confucian virtue-based morality? Journal of Chinese Philosophy, 19, 241–261. Leung, R. (2011, January 25). Government declares Ho Tung Gardens villa ‘proposed historic monument’. South China Morning Post. Nadeau, R. (2002). Confucianism and the problem of human rights. Intercultural Communication Studies, XI, 107–118. Ng, J. (2011, January 26). Ho Tung mansion saved from demolition. South China Morning Post. Ng, J., & Wong, O. (2012, December 5). Ho Tung Gardens to be bulldozed; minister admits policy failure. South China Morning Post. Rawls, J. (1999). A theory of justice. Harvard University Press. Raz, J. (1986). The morality of freedom. Clarendon Press. Rosemont, H., Jr. (1988). Why take rights seriously? A Confucian critique. In L. S. Rouner (Ed.), Human rights and the world’s religions. University of Notre Dame Press. Tang, Y. (2005). 文化意識與道德理性 (Cultural consciousness and moral reason). China Social Sciences Press. Tsui, E. (2012, February 4). Restoration drama. Financial Times.

5 Should Heritage Preservation Trump Protection of Private Property Right?

91

Van Norden, B. W. (2008). Mengzi. With Selections from Traditional Commentaries. Hackett Publishing Company. Ying, K. K. (2020). Heritage preservation versus development: The case of Queen’s Pier. In B. Yung & K. P. Yu (Eds.), Land and housing controversies in Hong Kong, governance and citizenship in Asia (pp. 127–144). Springer Nature.

Chapter 6

A Critical Assessment of the Discourse of Rights and Toleration with Reference to the Concept of ‘Gong Qi’: The Case of the Use of Public Space in the Mong Kok Pedestrian Zone Sui Ming Tsang Abstract Conflict of rights in urban controversies is common and it is not easy to find reconciliation and thus tension seems to be unavoidable. Mong Kok pedestrian zone, which is famous for its busking, demonstrates the conflict between the right of expression of dai mas (‘Dai Ma’ refers to middle or old aged woman in China. Some of them are well known for their active participation in public square dancing) and Hong Kong people’s right to be free from cultural invasion. If we just rely on the discourse of rights, it is not easy to transcend from the protection of selfinterest. And most importantly, it is difficult to achieve harmony in society if we just rely on the concept of rights, interest/desire and toleration. This chapter aims to use eastern thought, particularly Wang Fuzhi’s concept of ‘gong qi,’ to break the deadlock between conflicting parties.

6.1 Introduction As stated in the World Charter for the Right to the City, ‘all persons have the right to associate, meet, and manifest themselves. Cities should provide and guarantee public spaces for this effect’ (World Charter for the right to the city, 2005). However, it is not easy to put this principle into practice. Urban controversy arises because of the competition for the use of public spaces. One main reason is that each city must have its own value and ideal which make certain performances and behaviors unacceptable in public space. But is the right of freedom to act thus reasonably limited in public space? Or the exercise of this right has to meet a certain standard? But how and who set that standard? The above discussion is just abstract and general if not being put in a specific context. Urban controversy arises because there are so many different discourses, S. M. Tsang (B) The Chinese University of Hong Kong, Ma Liu Shui, Hong Kong e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 B. Yung et al. (eds.), Rights and Urban Controversies in Hong Kong, Governance and Citizenship in Asia, https://doi.org/10.1007/978-981-99-1272-8_6

93

94

S. M. Tsang

concepts and factors related to a specific context which affects how we understand public space.

6.2 Discussion 6.2.1 Busking in Mong Kok The pedestrian zone of Sai Yeung Choi Street South (called Mong Kok pedestrian zone in the following parts) in Hong Kong is set up to alleviate traffic congestion and air pollution problem. As a pilot scheme in 2000, it is managed by Transport Department. The pedestrian zone locates in a highly densely populated location, mixing with commercial buildings. Not only local people but also tourists love to visit this place for shopping. In this one of the most crowded streets, it attracts a large variety of activities. Political debate, exhibition and busking on this street exhibit the vitality of the city. However, busking in the Mong Kok pedestrian zone led to a lot of complaints of noise and obstruction (Sum, 27 July 2018). It is reported that noise was difficult to be kept under 85 decibels, and it causes ‘health hazard’ to inhabitants (Sum, 3 June 2018). If we just apply the legal concept, such as ‘nuisance’ to busking in the Mong Kok pedestrian zone, the scenario is simple and the solution is straightforward ‘prohibition.’1 However, if we dig deeper, we find that it is more complicated. The pedestrian zone on busy Sai Yeung Choi Street South closed on 27 July 2018 and it lasted for 18 years (Yau Tsim Mong District Council, 2018). A news report records how people think and feel about this: ‘“It’s so noisy. It’s better to shut the street down. It’s a nuisance,” said Mr. Liu, who owns a small noodle shop in the pedestrian zone and would be identified only by his last name. “It’s fine if they can sing well, but they don’t sing well. It’s torture”’ (Hui, 27 July 2018). If it is just the problem of noise, we may just need more regulations. However, we find from the above comment of Mr. Liu that it is also related to esthetic judgment and can be broadly as understood as cultural conflict, which is a common urban controversy. Why Mr. Liu thinks they do not sing well may be related to his cultural allegiance. Langegger also points out that ‘nuisance is central to establishing territorial rules. The history of nuisance law is one of spatial purification. The common law of nuisance threads together a succession of tragic narratives of peaceful communities that were ruined by one or another physical or cultural invasion’ (Langegger, 2017, p. 34). Nuisance law comprises cultural and community dimensions and it also involves value judgment: But what counts as an invasion? What counts as a norm? We can also find this kind of complaint which makes the whole issue complicated and thorny: ‘the pedestrian zone was taken over by singing and dancing not unlike 1

Why 85 decibels is set as a standard can be understood with the concept of harm. According to Centers for Disease Control and Prevention, Sound Level (measured in decibels) above 80–85 can damage hearing over time. See ‘What noise cause hearing loss,’ at https://www.cdc.gov/nceh/hea ring_loss/what_noises_cause_hearing_loss.html.

6 A Critical Assessment of the Discourse of Rights and Toleration …

95

that found in China’s public squares, with local media declaring the phenomenon to be the work of mainland “dai mas”’ (Cheung, 14 January 2018). ‘Dai ma’ here refers to those middle-aged women gathering in parks and squares to dance. Though square dance is not limited to specific age, the name ‘dai ma’ partly shows the disapproval in cultural dimension besides the possible nuisance caused. A similar situation is also found in Tuen Mun (Chan, 11 July 2019). It causes protests and even confrontations between performers and localist groups who considered the performances a vulgar ‘mainlandised’ tradition. Recently, the issue is less conspicuous, but it is still dangerous to take the whole issue as simply public space management or only rights to use public space or a matter of toleration, without deeper reflection and with sensitivity to context. We can also find the general right discourse is not directly applicable to this very specific context in Mong Kok. The specific East–West socio-cultural context of Hong Kong makes this issue more complicated. Hong Kong has its unique history and culture, many people identify themselves as Hongkongers and some of them think that it is distinct from being Mainland Chinese.2 But, at the same time, Hong Kong is under the constitutional framework of ‘one country, two systems.’ It implies that politically it belongs to China; thus, Hong Kong people share the same national identity as mainlanders, though some Hongkongers may believe that they display certain cultural self-identity that is different from Mainland Chinese. Further, when we put the focus on rights, we can find the tension exists. Article 34 of the Basic Law guarantees residents the ‘freedom to engage in academic research, literary and artistic creation, and other cultural activities’ (Fundamental rights and duties of the residents, 1990). But does it mean that all kinds of cultural activities are allowed, especially in public spaces? What if the cultural activities are regarded as bad taste, disgusting or corrupting? But if we allow prohibition of certain activities which does not ‘fit’ the values of a certain city, will it be just the tyranny of the majority, narrow-minded or chauvinistic repression? How different stakeholders in the same city can avoid conflict when they exercise their rights? All the above questions invite the consideration of sophisticated value clarification and justification through political philosophy and ethics. Disappointingly, the pedestrian zone is finally closed and open for car traffic (Keegan, 20 September 2018). The problem is dissolved rather than solved. Though this issue is no longer hot, however, reflection on this can help future urban policymaking and governance. Especially we can shed light on the ‘rights’ discourse on citizenship and governance, finding out its assumptions and its limits. In this chapter, I will use busking in the Mong Kok pedestrian zone in Hong Kong to demonstrate that the idea of public space limits certain kinds of activities to be done 2

Uniqueness of Hongkonger is partly cultural as Hong Kong’s colonial past but with strong Chinese cultural background. At the same time, Hong Kong positions herself as international city which makes it multicultural which is unique in China’s cities. On the other hand, it is partly institutional. Basic Law article 2 states that ‘The National People’s Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law.’

96

S. M. Tsang

or performed. I will also consider the concept of ‘toleration’ to shed light on whether certain performance or behavior has ground to be accepted in public space even if they are not liked by the majority. I will point out that the vocabulary of ‘virtue’ should not be left out in this discussion. Finally, I will use the concept, ‘gong qi’ (公器), which belongs to Chinese tradition, and Wang Fuzhi’s philosophical framework, to make sense of the constraint in public space from an ethical and eastern perspective. I believe this study can help us rethink the limit of liberal tradition and right discourse.

6.2.2 What Is Public Space? In this chapter, public space refers to physical one rather than discursive one upheld by Habermas and other political theorists. Zacka points out that accessibility and public ownership is not adequate to understand public space (Zacka, 2019, p. 32). Public space does not always mean ownership by the people (or the public), since shopping mall is owned by private enterprise but accessible to the general public yet may also be considered as a kind of public space. Sometimes, some publicly owned buildings do not have high accessibility to people, such as military land or government office. A more embracing conception of public space is the presence of strangers. Pedestrians do not need to share anything common with strangers in public space, but unfamiliar people are in one another’s immediate presence. They also have to take each other in account when acting, though they are free in public space. Street is one example of this kind of public space. Street is open, accessible, and full of strangers. It seems to be difficult to avoid taking any action in street without affecting other people. What you do or not do in a public space can be perceived by others, visually or audibly, willingly, or reluctantly. What you do or not do in a public space can also shape its ethos. Langegger explains the normativity of space: ‘since place is communal, it supports a sense of community ownership, and therefore it justifies efforts toward spatial control. Ideas of place are essentially normative; they frame what should and should not occur in specific localities’ (Langegger, 2017, p. 32). From this perspective, Sai Yeung Choi Street South in Mong Kok is a good example for us to investigate the problem of the limit of action in public space. But I must point out that it is dangerous to directly ‘apply’ a single philosophical theory to explain this particular public space. On the other hand, Hong Kong’s East– West context provides us a chance to reflect about the limit of one-sided discourse, particularly the mainstream right discourse. I will take this chance to utilize Chinese philosophy resources to stimulate our discussion.

6 A Critical Assessment of the Discourse of Rights and Toleration …

97

6.2.3 Different Approaches of Understanding Public Space Zacka outlines different imaginary to understand public space (Zacka, 2019, pp. 143– 155). For the Civic Republican model, which can be represented by Olmsted and Rousseau, public space is a space for nurturing a civic virtue and constituting civic community. This model set against corrupted activity in public space and commercialization of public space. Can we use this conception to understand or evaluate public space in Sai Yeung Choi Street South? It quite depends on whether Hong Kong has a civil community that transcends individual differences. On the other hand, this kind of perfectionist approach must have to assume a certain conception of good. If that is the case, we may ask can it be compatible with the diversified lifestyle of Hong Kong citizens. Another related question is whether corrupted activities can be found in Sai Yeung Choi Street South. This question is both empirical and evaluative. The latter part makes it not easy to be so assertive. The second model is the democratic model, and it focuses on the plurality of groups.3 It does not assume homogenous citizens but heterogeneous strangers visible to each other. It means that it takes citizen has different attributes, needs and values and we cannot assume all citizens are the same. As for liberals, the street is the last place for the homeless. It is their right to sleep and urinate there if they have no home. It depicts the dimension of right. However, this approach also draws the criticism of whether we should tolerate everything to maintain democratic and liberal ideal. In public space, everything is visible to each other and thus one cannot use the same reason for tolerating another’s private lifestyle. I can choose not to view opera if I think it is boring. But I cannot choose but have to listen to a certain kind of music if it is performed in street. I may support your right to live but do not support you taking public space as your home and doing private things such as urination or even sexual activities. In short, the public space cannot be neutral, impartial and tolerant of all actions even if we uphold the democratic model. On the other hand, public space is differently owned by the public. As Langegger writes, ‘(p)ossession takes two major forms: one is ownership, which entails a subject–object relationship of belonging; the other centers on characteristics and identity and is therefore constituted by part–whole relationships of belonging’ (Langegger, 2017, p. 55). As regards to Langegger’s first form of possession, we cannot understand the right to public space as a right to my own property. My ownership of public space is not exclusive and it is rather connected to other people and who we are, viz our identity—the second form of Langegger’s conception of possession. Publicly accessible spaces are physically manifest in the material world; however, they are not socially inert localities. They can be reshaped and restructured through public participation of people. 3

Some representatives of this model include Hayward, Young, Parkinson and Sennett. See Zacka (2019, p. 152).

98

S. M. Tsang

We can find abovementioned two models shaping two rivalry views on the use of Sai Yeung Choi Street South and even in Tuen Mun Park controversy (Ng, 9 July 2019). Shall we take public space as promoting virtue and identity but at the same time this may repress or not tolerate different voices or actions? Or shall we take public space as a final resort to recognize the rights of every citizen but with the danger of corrupting the civil culture caused by some individual behaviors in it? A promising theory is expected to release the above tension philosophically. a. Toleration and its limitation in public space Legally speaking, it is not a problem to prohibit nuisance and legally defined indecent act in public space. We can set certain ‘objective standards’ to curb certain behavior. For example, domestic renovation works are regulated by ordinance thus no powered mechanical equipment can be used to carry out renovation works from 7 p.m. to 7 a.m. or any time on a general holiday (The University of Hong Kong Law and Technology Centre, Family CLIC, 2021). However, it is more problematic to prohibit people who sing badly or sing that nobody wants to hear. It is not only a legal issue but also a value-judgment issue. Should we tolerate people who perform publicly in a way we do not approve it. On the other hand, it is also a political issue, i.e., should the authority stop them? The argument against some use of public space is also dangerous. Partly because it is not completely true that nobody wants to hear. More accurately, it is that the majority do not want to hear. This can be used to suppress the minority’s voice. The issue is not simply related to ‘nuisance’ only but is related to the social relation of the majority versus the minority. The distinction between private and public morality may help here. For some acts, if it is done privately, it is not problematic. For example, most sexual activity in private place is accepted. However, if it is done in public, it will be regarded as obscenity. It violates public morality and thus can be prohibited by law. Another important distinction is ‘what I dislike’ versus ‘what I disapprove of.’ The former is just a matter of taste, but the latter is supported by moral reason. Prohibition can be better justified if sound moral reason is offered. After making some clarifications, let us go back to our case in Mong Kok. Some complain that some singers do not sing well in street. But is singing a song badly or in some styles morally wrong? It may harm others if the voice is too high. But if it is under regulation, is everything alright? But asking for prohibition of something merely we don’t like is not reasonable. Though it is prudent to sing in public space only if you have a good voice and good skills, it is not morally wrong if you do so unskillfully. Bad singers can only sing in their own bathroom is not a moral imperative. Following this, we can ask why we cannot achieve peaceful co-existence. One may urge us not to blame the irritating singers. We need to tolerate behavior which we ‘dislike’; even though ‘we’ are the majority. If the discussion stops here, there may be still a feeling of ‘uneasiness.’ It is partly a political emotion, partly philosophical. For the latter, I suppose, lies in the postulation of the simple model of toleration may not be fitting to this changing world. We should

6 A Critical Assessment of the Discourse of Rights and Toleration …

99

not uphold toleration alone, but we have to find out what is preserved and what is lost if we just focus on toleration. In short, we must justify the worth of toleration, as there is trade-off. Williams (2000, pp. 66–67) says: If we are asking people to be tolerant… [t]hey will indeed have to lose something, their desire to suppress or drive out the rival belief; but they will also keep something, their commitment to their own beliefs, which is what gave them that desire in the first place. There is a tension here between one’s own commitments and the acceptance that other people may have other and perhaps quite distasteful commitments. This is the tension that is typical of toleration, and the tension which makes it so difficult.

Those complaints may not be on different esthetic styles or standards but also can be on their commitment of what the street should be (what should/should not happen in street), must be given up. As Scanlon also depicts, ‘(t)olerance requires us to accept people and permit their practices even when we strongly disapprove of them. Tolerance thus involves an attitude that is intermediate between wholehearted acceptance and unrestrained opposition’ (Scanlon, 2003, p. 187). To keep this attitude is particularly difficult if what is tolerated will harm the ground of tolerance, which is shared citizenship or common identity. Here, we have to pay attention to the special socio-political context linked to busking in Mong Kok, as it sometimes involves two kinds of culture in conflict, namely Hong Kong and mainland China. This is not necessarily political, but can be caused by different city experiences, especially ‘one country, two systems’ allowing Hong Kong to have her unique lifestyle. We have to confess that different cultures can also shape different cultural identities (though with the same national identity), and thus it is possible that we can find Dai-mas and local Hong Kong people have conflict in highly accessible Mong Kok street, even they share same citizenship and national identity. Scanlon has reminded us that ‘we must distinguish between one’s attitude toward what is advocated by one’s opponents and one’s attitude toward those opponents themselves’ (Scanlon, 2003, p. 197). However, in the current context, what is advocated by ‘Dai Ma’ singer is not clear, but at the same time, unfortunately, what the complainer targets is partly Dai Ma themselves due to different identities. Based on the concept of ‘nuisance’ or ‘tolerance’ certainly miss this point. It is because the concept of nuisance ignores the problem of identity, and the concept of toleration assumes there is a common identity. Warnock also advises us, ‘the problem is not one of theory only, and its solution cannot be deduced from any text, neither the Bible, the Koran, nor On Liberty. For the limits of toleration must be defined piecemeal, each difficult case a matter of judgment and good sense’ (Warnock, 2001, p. 139). This insight reminds us that we have to provide a unique reason when we ask people to have self-constraint and not just a general reason of toleration, even we accept the distinctions of feeling and reason, private and public. Sometimes the best reason to tolerate is although we have diverse points of view or taste, but still, we are citizens of the same state or city. This is the ground of toleration. But due to globalization and higher mobility of people, this ground will be shaken. Yes, public space is full of lots of strangers, but at least

100

S. M. Tsang

we belong to a united identity. But here and now, complainers believe that the way Dai Ma singing or performing clearly shows that they are just not ‘us.’ The above analysis does not aim to blame ‘Dai Ma’ singer. I must also emphasize that it also does not mean that new immigrants and people of other cultural backgrounds should be invisible. They should have the right to express themselves. But, if we understand the rationale and psychology of those complainants with the above analysis, we will find that Dai Ma singer must prepare more discourse to get recognition rather than waiting for passive toleration, especially in the street. According to UNESCO (1996), ‘tolerance is facilitated through direct contacts, communication and education,’ which can only exist in an open and inclusive public sphere. Thus, they have to utilize their right with the mind of what identity is made reference to. Do they perform with reference to Hong Kong city identity or merely just do what they normally do in other China cities? Do they have wrongly assumed that same nationality is enough for tolerance without considering different city histories and experiences? Without this alertness and attitude in mind, public space cannot be a place with toleration but just a place of conflict. But we can find these requirements apply to other people from other culture and thus is not discriminatory to Dai Ma. b. Why virtue is essential in using public space? To understand how to use public space with reference to a shared identity, this requires people who use public space with virtue. The language of rights is not enough, as Waldron depicts (Waldron, 1981, p. 10): If an action appears arbitrary or capricious, if, for example, I stand on my head for a week facing west in a public place, or marry somebody I loathe, or burn my stock certificates in a fit of pique, or vote randomly in a general election, my action when questioned is not made to appear one iota more reasonable or defensible, nor is a spectator the slightest bit more likely to understand why I did it, when I reply, ‘I had a right to do it; I was exercising my right.’ The spectator may concede that the reply is true, but that concession need not in any way diminish his puzzlement or indignation at my behavior.

This puzzlement or indignation can be explained by the republican model: some actions are not intelligible and acceptable from a unified identity’s point of view. If you are us, you will not do that! Who we already presuppose what behavior should not be accepted. But at the same time, there is another point of view worth considering. The fact that an individual has the right to perform some actions does not in itself provide a reason for his performing that action (Waldron, 1981, p. 10). In the vocabulary of right discourse, it is only for protecting choice rather than guiding choice. It can be explained by allowing diversity under shared identity. The thinking is like this: Yes, we are Hong Kong people, but we have so many kinds of Hong Kong people, so we let you not perform like us, though with regret. Here, we must distinguish interference from mere condemnation (Waldron, 1981, p. 10). And, of course, these other positive acts will have moral ramifications of their own (Waldron, 1981, p. 10). To stop others with force or coercion, we need to give more reasons besides that it is wrong. We have to explain why this choice should not be allowed here. One of the strongest reasons is provided by Wang Fuzhi’s treatment of desire and kong qi (公器). We are not human (which transcends all

6 A Critical Assessment of the Discourse of Rights and Toleration …

101

cultural differences) if we make certain choices (or fulfilling some desires) in the public areas. I will spend more ink on this in the last section. Different from religious coercion, there is no coercing belief here, but why do I have to tolerate someone who does not cherish our community value? From the perspective of protestors protesting against ‘dai mas’ in Tuen Mun, they may not be correctly understood as discriminating against mainlanders but are against certain behavior and attitude: ‘There were also allegations of ‘dai mas’ dancing suggestively with their audience, which mainly consisted of older men, and receiving money in return’ (Chan, 11 July 2019). Protestors are not only against this phenomenon, but are also furious about the authority has done nothing or not enough to stop this. We can observe that there is also gender inequality and possible manipulation and exploitation here. It is also a corrupting and commercialized behavior if such reports are true. But most importantly, they question why this kind of disapproved behavior can be allowed in their public space. The key question is not whether they have the right to do so or whether toleration is needed, but why public space can be used in this way. The complainants have done nothing wrong to express this, providing that they do not intervene directly. To conclude, just asking for toleration is not the whole picture of our moral outlook, as Scanlon says, ‘to sustain and interpret such a system, we need a larger attitude of tolerance and accommodation, an attitude that is itself difficult to maintain’ (Scanlon, 2003, p. 201). This larger attitude is the virtue that helps us being accountable to each other and respecting our shared identity. This virtue will be explained further in the next section. c. How virtue is needed? One virtue we need to develop to maintain healthy toleration is to understanding each other. Public space is a space to let us learn how to take account of others, how to respond to those who disapprove us and develop an understanding of each other. When we have this consensus, the question will always become what content is put in public space, and does it violate the concept of public space itself? With a shared city identity, we prepare to tolerate each other, but toleration is not everything. If we do not prepare to gain recognition in public sphere, the quest for toleration is without solid ground and this unpreparedness to get recognition should not be tolerated too. Gaining recognition requires virtue. The singer needs to get recognition as a singer in this space. The dai mas have to realize that their culture may be the majority in Mainland China but the minority in Hong Kong city. This duality makes it both powerful and powerless. The virtue of humility is relevant here. On the other hand, they must realize that what they perform is not a kind of self-expression but also a symbol of culture. Just like filial piety in Confucius China, it is not a private emotion and performance but is also a kind of public way to show our loyalty to the governor. This is also the preparedness of bigger picture to endorse and explain rather than mere exercise of freedom. The performers, including dai mas, must have self-control of their own desire and pleasure–satisfaction, and respond accurately to specific cultural norms related to that specific public space.

102

S. M. Tsang

In some cases, participants also must be ready to acquire recognition in performing in a public space rather than just for their self-entertainment and hedonist way of living. When performing in public space, they have the readiness to communicate with strangers in the street rather than just satisfying their own desire. The conflict can be caused by the absence of these virtues (such as lack of selfcontrol and lack of humility) rather than just the absence of intolerance. We cannot expect that everyone performs in the same way in public space and thus diversity and toleration are needed. But still, the piece of land or space should be connected to a particular ideal of the community. Nowadays, Hong Kong people’s identity is closely related to the community values they cherish. Through this lens, it may help us to govern the use of public space but at the same time, healthy liberty and rights can be manifested. For the republican model, freedom does not mean merely non-interference, what they treasure is acquiring of the non-dominating status of each other. This follows Hegel’s discussion in The Philosophy of Rights. Hegel’s spirit is a model of human agency. According to it, the agent creates or ‘posits’ an external ‘object.’ This object is not merely the external shadow of an internal intention that was fully actual and self-complete within itself, but something through which I discover myself. A spiritual being actualizes itself only through the process of producing or ‘positing’ such objects and then ‘mediating’ this otherness with the self that posited it. I learn what I am through the interpretation, by myself and by others, of what I have done. As a spiritual being, I do not exist fully except through these contrary and complementary movements of ‘becoming other’ and ‘mediating otherness,’ that is, through the activities of self-expression and self-interpretation. In short, a human being is not atomistic and hedonistic, but autonomous, communitarian and expressive. We need to have a social institution to enable human nature flourishing. Hegel’s insight is that his consideration of how different spheres can have different requirements of moral behavior. To be more accurate, the nature of demand to a moral agent is different in different spheres. If we consider street with this lens, street is the intermediate between ethical life (Sittlichkeit) and abstract right. You do not assume to gain love and care in the public space just as at your home. At the same time, you do not expect that you just search for the satisfaction of desire here. There is no gap between what ought to be and what is in your ethical life (Taylor, 1979, p. 83). Ethical life also ‘considers the individual as an integral part of the social and political whole’ (Beiser, 2005, p. 234). However, in the public space, you can find the gap, partly because the norm is dynamic and interactively formed. Thus, to be in the public space is not effortless, we need to learn how to respond, and we need to develop our sensitivity through practice. Only with the development of above-mentioned virtues, toleration is possible. The public space exists and with economic purposes, history and culture. If you find that you are detached from all these elements, your experience in public space is under serious alienation. There is no meaning that can be found to be with others and something larger than me. Different from morality, which is an abstract universal and ‘it makes the part prior to the whole, as if each individual were self-sufficient or independent’ (Beiser, 2005, p. 234). The public space assumes that each individual

6 A Critical Assessment of the Discourse of Rights and Toleration …

103

more or less depends on each other and is interconnected to each other. To put it short, therefore, you exercise your freedom in public space in a very different way. You are already on par with each other to do that, under actuality but at the same time possibility can be created. Pred also insists that places are in a constant process of becoming: a place is never inert, it is continually (re)produced. Because it emerges from multiple networked systems, it can never be a discrete, permanent site (Langegger, 2017, p. 62). If the discourse of rights is limited, why do we still have to use the language of rights? It is because the republican model is quite difficult to achieve but nondomination may be the common good of the Hong Kong citizen. The public space can be used by all citizens in a non-dominating way rather than competing or controlling others. Singing songs which others don’t like or carrying out activities which other people do not like, especially in public space, can be a kind of domination. You exercise your power and are visible to others. With the common good of nondomination, we know how to constraint ourselves and take other people as having the same standing as myself. This is what Liji or Book of Ritual (禮記), one important book recording the Confucian view on social forms and ceremonial rites, says, ‘The world is for the public’ (天下為公). Here, the world is not a merely spatial concept, but a moral and political concept. It implies that we live together rather than in an atomistic way. But it should be reminded that it is also regarded as an ideal, since people have the tendency to be confined by their family and personal tie and thus act in a way without other people in their mind. They just act according to their egoistic point of view. We may also take our way of living as the only good one and suppress others with one’s own class ideology. That is why the language of right is always important in this non-ideal world. In non-ideal world, this common good cannot be interpreted or grasped by everyone, and sometimes the good can still be under debate and clarification. This kind of common good can override individual interests. To avoid this, we still need the language of right to remind us, ‘do they really have right to do something here?’ It is not the ideal, but this can preempt the danger of totalitarianism and repression. As Hegel reminds us, the language of right refers to the freedom of each other. The individual should have moral, intellectual and religious liberty, the right to express his opinion and to exercise his conscience (Beiser, 2005, p. 231). Ryan summarizes this in plain language: ‘There could be no system of rights unless there were creatures who had desires and needed rules to control and to license those desires; being a slave to impulse is not freedom, so freedom must consist in autonomy, which is to say in being self-governing and in following the path of the rational will’ (Ryan, 2013, p. 675). We need regulation, but it should be done in a way of treating rational being. Yes, we need the common good, but it should also be done in a way of treating everyone fairly.

104

S. M. Tsang

6.2.4 Wang Fuzhi’s Treatment of Desire and Kong Qi It will be more fruitful if we can understand the whole issue from an East–West comparative perspective. We cannot perceive the whole picture if we just stick to the vocabulary of toleration, rights and even distributive justice. On the other hand, the key question we have left behind is how the normativity of public space arises. We assume it has but the question of how is not adequately answered. Moreover, we need a point of view to transcend the conflict due to our identity or political stance. That is why I would like to introduce Wang Fuzhi (1619–1692), a Neo-Confucian thinker at the end of the Ming dynasty and the beginning of the Qing dynasty. His highly systematic philosophy has never been applied to understand public space, but I would like to convince the readers that it provides a framework for us to reconsider what ought to be done in public space, from the ontological point of view of what public space is. But at the same time, it does not involve too much metaphysics in this scientific age. It is impossible for me to offer a comprehensive picture of Wang’s gigantic and sophisticated theories, but hopefully related concepts can shed light on the above discussion of public space. Wang focuses on person–nature relationship and he sees it as continuity. His concept qi (氣), which is the basis of reality, is also neither completely materialistic nor completely spiritual (Liu, 2010, p. 356). We can take it as a building block of reality without drawing too much metaphysical explanation. In reality there is nothing but qi and it manifests through its function which is concrete things (qi 器) (Liu, 2010, p. 356). Qi and Li (理) are closely linked. Qi represents what is and Li represents what ought to be. With this worldview, this blurs the clear distinction between human beings and the environment. Especially he promotes Dao, which readers may take it as reason, in Concrete Things (Qi)—the Doctrine of Dao-Qi Unification. This Dao exists in concrete things and relationship and thus moral judgments is unavoidable when we do everything in this world. Everything has Dao in it. To put in other way, it is because we are human and not beasts and thus what we encounter is in Dao’s manner. Dao as particularized is not a mysterious order “beyond physical form”; it is simply what is already contained in each object and each human affair. Tian ren zhi ji (天人之際) is how a person acts or performs in the world. As we need rituals and music to maintain a positive relationship with nature, we also need that to develop or maintain a positive relationship with our environment, including both nature and human space. This relationship can widen our perspective, making us less anthropocentric or self-centered. The concept of concrete things (qi 器) can also help us to understand the concept of public space. Public space is not only a materialistic setting but also spiritual. Human people use it to satisfy desire or to express desire. Some scholars have also mentioned the importance of physical space to practice high-quality democracy.

6 A Critical Assessment of the Discourse of Rights and Toleration …

105

Parkinson says ‘democracy is not merely the interplay of arguments and reasons in some abstract public sphere but is performed, by people, with aims and motives, who require stages on which to perform and audiences to perform to’ (Parkinson, 2009, p. 152). Here, Wang does not deny the existence and satisfaction of desires, but he distinguishes desire gratification as proper or improper. They may be improper by being excessive or because they take place at the wrong time. This echoes Hegel’s idea of impulse: ‘Impulse, appetite, inclination are possessed by the animal also, but it has not will; it must obey impulse, if there is no external obstacle. Man, however, is completely undetermined, and stands above impulse, and may fix and set it up as his. Impulse is in nature, but it depends on my will whether I establish it in the ‘I’. Nor can the will be unconditionally called to this action by the fact that the impulse lies in nature’(Hegel, 2005, p. 37). Wang proposes yi ren jian ji (依人建極), which means building of a cultural world through the effort of humans. All these enrich our vocabulary to understand public space in different ways. Our moral world is interconnected to the physical and natural environment, and we can improve our relationship with others by participating in this connection. Hedonistic way of desire gratification has to be criticized and cannot be accepted by just highlighting freedom, especially in place of public space, kong qi (公器). Kong Qi is a broad concept which can include many cultural and political entities such as government, school, museum and theater. They are under this umbrella because they are public, and we rely on these entities to interact and nurture ourselves. We can make sense of this with our daily experience as we have already learnt the norm of these entities. The question is, why not Sai Yeung Choi Street, and other streets, are also covered by the concept of Kong Qi? We feel uneasy, is it because we have taken it for granted that street is just functional and for commercial use? Lo points out that Hong Kong’s property developer has eaten up our public space by building a shopping mall and the government only focuses on building recreation park (Lo, 2013, p. 8). To avoid missing the significance of street, our conception of street becomes very crucial. However, we are easily clouded by capitalistic ideology and cannot find other possibilities of street use besides commercial purposes. Street art or graffiti can inspire us that there is an alternative outlook of a street or public space (張讚國、高從霖, 2016, p. 270). Even if we need not accept graffiti, which is often illegal, we can still agree that Mong Kok pedestrian zone and streets are more than a place for commercial profit or hedonistic satisfaction, but a place for us to learn to be a human, if we follow Wang’s rationale. It also implies that for dai mas and Hongkongers in public space, they need to find common ground to work out how they can perform as human, no matter what their cultural difference is. It does not mean that the merits and permissibility of most commercial performances in the Mong Kok pedestrian zone is called into doubt, but it certainly implies that there exists a higher ideal to re-evaluate the value of these activities. If we have this conception of ‘kong qi’ in our mind, we can have less conflict in the use of public space which is shown in Mong Kok pedestrian zone and more chance of cultivating ourselves without taking public space to gain commercial benefit only. The implication of urban citizenship from this is huge: urban citizenship is also a matter of learning to be human, with each other, within the urban space and context. It

106

S. M. Tsang

gives us a ground to communicate and tolerate even though we have various cultural identities in this highly mobilized and globalized age.

6.3 Conclusion We thus make the conclusion that street, as public space, though involves diversified use of unified identity of people may require toleration. It also must involve virtue. If we just depend on the rights discourse, it is impossible to reconcile the conflicts of rights of Hongkongers and dai mas in the use of public space in Hong Kong. With the concept of kong qi and civil virtue, we are expected to do reflection and uphold righteousness.4 Street, in actuality, is filled with a lot of possibilities. It is also a platform for our daily renewal. Just as our a posteriori human nature is not fixed, our urban citizenship has no complete definite essence (Liu, 2010, p. 365). It is through everyday practice to explore new possibilities and make new definitions of it. However, street, as a public space, involves moral constraints for us to explore such possibilities, but with the aim of being a better human, living together with others in the community. This conception has huge implications on urban governance as it mainly focuses on the management of street and can reconsider issues from a moral point of view, especially in this thorny political context. On the other hand, the strength of the above discussion is that we will not overlook the good-seeking nature of human and forget how public space can cultivate virtue. A short introduction of Wang Fu Zhi’s perspective also shows us there can be an alternative in understanding public space besides mainstream right-based model.

References Books and Articles Beiser, F. C. (2005). Hegel. Routledge. Hegel, G. W. F. (2005). Philosophy of right (S. W. Dyde, Trans.). Dover. Langegger, S. (2017). Rights to public space law. Macmillan. Liu, J. L. (2010). Wang Fuzhi’s philosophy of Principle (LI) inherent in Qi. In J. Makeham (Ed.), Dao companion to Neo-Confucian philosophy (pp. 355–379). Springer. Lo, K. M. (2013, January 23). A critical study of the public space in Hong Kong. MCS Symposium. https://www.ln.edu.hk/cultural/programmes/MCS/Symp%2013/S1P2.pdf Parkinson, J. (2009). Does democracy require physical public space? In R. Geenens & R. Tinnevelt (Eds.), Does truth matter? (pp. 101–114). Springer. Ryan, A. (2013). On politics. Penguin. Scanlon, T. M. (2003). The difficulty of tolerance. Cambridge University Press. Taylor, C. (1979). Hegel and modern society. Cambridge University Press. 4

Reflection is the function of the heart/mind, it is what humans accomplish.

6 A Critical Assessment of the Discourse of Rights and Toleration …

107

Waldron, J. (1981). A right to do wrong. Ethics, 92(1), 21–39. Warnock, M. (2001). The limits of toleration. In S. Mendus & D. Edwards (Eds.), On toleration (pp. 123–139). Oxford University Press. Williams, B. (2000). Tolerating the intolerable. In S. Mendus (Ed.), The politics of toleration: Tolerance and intolerance in modern life (pp. 65–76). Duke University Press. Zacka, B. (2019). What is public space for? Political imaginaries and policy implications. In A. Lever & A. Poama (Eds.), The Routledge handbook of ethics and public policy (pp. 143–155). Routledge. 張讚國、高從霖. (2016). 塗鴉香港—公共空間、政治與全球化 (第二版) .香港城市大學出版 社

Newspaper Articles and Documents Centers for Disease Control and Prevention. What noise cause hearing loss. https://www.cdc.gov/ nceh/hearing_loss/what_noises_cause_hearing_loss.html Chan, H. (2019, July 11). Tuen Mun Park scraps performance zones following mass protest against ‘dancing aunties’. HKFP. https://www.hongkongfp.com/2019/07/11/tuen-mun-park-scraps-per formance-zones-following-mass-protest-dancing-aunties/ Cheung, K. (2018, January 14). From buskers to off-key karaoke singers: The public space debate at the heart of Mong Kok’s pedestrian zone. HKFP. https://www.hongkongfp.com/2018/01/14/ buskers-off-key-karaoke-singers-public-space-debate-heart-mong-koks-pedestrian-zone/ Hui, M. (2018, July 27). The last days of a Hong Kong street for singing your heart out. The New York Times. https://www.nytimes.com/2018/07/27/world/asia/hong-kong-mong-kok-ped estrian-zone.html Hong Kong Basic Law. (1990). Fundamental rights and duties of the residents. https://www.bas iclaw.gov.hk/en/basiclaw/chapter3.html International Alliance of Inhabitants. (2005). World Charter for the right to the city. https://www. right2city.org/wp-content/uploads/2019/09/A1.2_World-Charter-for-the-Right-to-the-City.pdf Keegan, M. (2018, September 20). Don’t walk this way: Why Hong Kong reopened a pedestrian street to cars. The Guardian. https://www.theguardian.com/cities/2018/sep/20/dont-walk-thisway-why-hong-kong-reopened-a-pedestrian-street-to-cars Ng, N. (2019, July 9). It’s curtains for mainland ‘dama’ singers in Tuen Mun Park as Hong Kong authorities announce zone closure after protest against noise pollution and indecency. South China Morning Post. https://www.scmp.com/news/hong-kong/society/article/3017924/its-cur tains-mainland-dama-singers-tuen-mun-park-hong-kong Sum, L. K. (2018, July 27). Mong Kok buskers plan next move as closure of Hong Kong pedestrian zone nears. South China Morning Post. https://www.scmp.com/news/hong-kong/community/ article/2157210/mong-kok-buskers-plan-next-move-closure-hong-kong Sum, L. K. (2018, June 3). Mong Kok buskers lower decibel levels as mock regulations on noise given an unofficial trial. South China Morning Post. https://www.scmp.com/news/hong-kong/ community/article/2149058/mong-kok-buskers-lower-decibel-levels-mock-regulations The University of Hong Kong Law and Technology Centre Family CLIC. (2021). IV. Common types of nuisance: Noise. https://familyclic.hk/en/topics/daily-lives-legal-issues/disputes-withneighbours/common-types-of-nuisance-noise/ UNESCO. (1996). Resolutions. In: Records of the General Conference, Twenty-eights session, Vol. 1. United Nations Educational, Scientific and Cultural Organization. Yau Tsim Mong District Council. (2018). 旺角西洋菜南街行人專用區. https://www.districtcoun cils.gov.hk/ytm/doc/2016_2019/tc/dc_meetings_doc/14746/YTM_DC_73_2018_TC.pdf

Part II

Rights, Interest and Well-being of Human and Non-human Entities

Chapter 7

Analyzing the Conflict of Rights to Urban Space Between Humans and Stray Animals: From East and West Perspectives Elaine Lok-Lam Yim Abstract This chapter addresses the tensions between the rights to urban space of humans and non-human animals, with a special focus on ethical issues relating to stray cats and dogs in Hong Kong. In Hong Kong, thousands of cats and dogs are abandoned on the street each year. Most stray animals are put down unless they can be re-homed. Such an urban policy represents an almost absolute prioritization of the interests of humans, specifically the importance of public health and safety, over the rights and interests of non-human animals. This chapter proposes a Buddhist approach to solving the problem of stray animals, contending that the relationship between human and non-human animals should be that of harmonious co-existence. Stray animals should be neutered and returned to their habitat rather than being put down. This chapter also contrasts the Buddhist approach with two Western approaches to animal ethics: (a) the utilitarian approach which states that the interests of animals should be given equal consideration as those of humans; and (b) the rights-based approach which argues in favor of granting rights to animals. It argues that the Buddhist approach is more suitable for addressing urban controversy issues for philosophical and practical reasons. Keywords Stray Animals · Buddhism · Utilitarianism · Animal Rights · Public Health

7.1 Introduction This chapter addresses the potential conflict between the rights to urban space by humans and non-human animals. In Hong Kong, thousands of cats and dogs are abandoned on the street each year. The predominant government policy dealing with stray animals is ‘catch and kill’: unless the stray animals are re-homed within a certain time frame, they are killed. While the government justifies such a policy based on E. L.-L. Yim (B) Department of Politics, Princeton University, Princeton, NJ, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 B. Yung et al. (eds.), Rights and Urban Controversies in Hong Kong, Governance and Citizenship in Asia, https://doi.org/10.1007/978-981-99-1272-8_7

111

112

E. L.-L. Yim

the importance of public health and safety, this has been criticized heavily by animal welfare activists.

7.1.1 Approach Adopting a comparative philosophical approach, this chapter contrasts the Buddhist compassion-based approach with two Western philosophical approaches.1 The Buddhist approach emphasizes the moral wickedness of killing and harming sentient beings by appealing to compassion (karun.a¯ ): killing or harming animals is contradictory to the idea of compassion, and being compassionate is a virtue, so, we should not kill or harm animals (Finnigan, 2017, p. 6).2 Buddhism also emphasizes that the relationship between humans and non-human animals should be that of harmonious co-existence. The Buddhist approach is contrasted with two Western approaches: (a) the utilitarian approach which states that the interests of animals should be given equal consideration as those of humans; and (b) the rights-based approach which argues that animals, like humans, also have rights. In comparing the three philosophical approaches and finding a solution to the problem of stray animals, there are two main considerations: (i) the philosophical merits of each approach; and (ii) the practical consideration of how each approach appeals to policymakers and the public. I am looking for a philosophically sound approach that can be used to justify an animal-friendly policy in public deliberation with a real possibility of being accepted.

7.1.2 The Rationale for the Choice of Case Study The reasons why the problem of stray cats and dogs in Hong Kong forms a suitable case study in examining urban controversies from an East–West perspective go as follows. Hong Kong is a particularly suitable place for examining the tension between the uses of urban space by humans and non-human animals because it is one of the most densely populated areas in the world. Hong Kong is also uniquely suitable for serving as a case study for comparative philosophical discussions between Eastern and Western perspectives: because of its historical context of being a British colony for 156 years, Hong Kong is influenced by both Eastern and Western political, social, and cultural factors. 1

An interesting contrast between utilitarianism and the Buddhist approach on the issue of animal welfare more generally is provided in a dialogue between Peter Singer and Shih Chaohwei (Shih & Singer, 2018). 2 The nature of compassion is a virtue that one ought to exhibit. Unlike the rights-related approach, Buddhism does not see animal ethics through the language of claim rights and duties. The focus of Buddhism is how you should act, not what others can demand from you.

7 Analyzing the Conflict of Rights to Urban Space Between Humans …

113

Stray cats and dogs represent a particularly interesting case study for the tensions on the right to urban space of humans and non-human animals. First, many stray cats and dogs rely heavily on urban space for food and shelter; they scavenge and/or are offered food by residents living in the vicinities. This makes them specifically vulnerable to human actions. Second, stray cats and dogs are typically victims of pet abandonment, either directly or indirectly: they may be abandoned by owners or the offspring of abandoned pets. This gives them a special moral standing in relation to humans: some special considerations are called for concerning their suffering from past injustice caused by humans. As such, it seems that the problem of stray cats and dogs represents an especially strong tension between the use of urban space by humans and non-human animals: we owe them more compared to other non-human animals. In what follows, I first describe the issue of stray cats and dogs in Hong Kong. Then, I set out three philosophical approaches to animal ethics: the Buddhist approach, the utilitarian approach, and the rights-based approach. Comparing the three approaches, I contend that the Buddhist approach is most suitable for addressing urban controversy issues involving stray animals. Finally, I propose a few animal-friendly policy suggestions for the problem of stray animals.

7.2 Discussion 7.2.1 The Problem of Stray Cats and Dogs in Hong Kong Many households in Hong Kong have pets. Based on the thematic survey conducted by the Census and Statistics Department in 2005, it was estimated that around 286,300 households (which amounts to 12% of all households) in Hong Kong were pet owners, and they together had around 524,800 pets, among which 197,900 (37.7%) were dogs and 99,200 (18.9%) were cats (SPCA, 2020). Every year, thousands of dogs and cats are abandoned on the street. The Agriculture, Fisheries and Conservation Department (AFCD), the government body in charge of handling stray animals, handles between 5,000 and 7,000 stray dogs annually (SPCA, 2020). The situation was made worse in the past two years because of the ongoing emigration wave (Chow, 2021). Statistics from the AFCD showed that 262 animals had been surrendered in the first six months of 2021, which was much higher than the normal figure in other years (Leung, 2021). Hong Kong Dog Rescue, one of the animal welfare NGOs, estimated that around half of the dogs abandoned in the past year could be from owners leaving the city, as bringing pets into Britain can incur costs exceeding HK$100,000 (Leung, 2021). Another reason for the high pet abandonment rate is that many apartments, including public housing, do not allow cats and dogs. Therefore, a previous pet owner may decide to surrender or abandon his/her pet, if he/she moves to an apartment that does not allow pets, and cannot find a friend willing and able to adopt his/her pet.

114

E. L.-L. Yim

Furthermore, although abandoning an animal without reasonable excuse is considered a crime under the Prevention of Cruelty to Animals Ordinance, punishable by a maximum fine of HK$10,000 and six months’ imprisonment, execution of the law is rare. It is difficult to trace the owner of the abandoned animal; the difficulty is heightened by the six-month prosecution time limit, that is, the prosecution will be time-barred after six months from the date of the offense. While none of the above reasons justify abandoning the pets, it provides the necessary context to understand why the problem of stray cats and dogs is likely to persist in the near future. The large number of stray animals in Hong Kong has led to the conflict between the rights to urban space by humans and non-human animals. On one hand, stray animals have a right to life and have nowhere else to live: their use of urban space is essential to their survival. On the other hand, humans have a right to health.3 This right may be undermined by the presence of stray dogs as they may transmit diseases including rabies, thus, raising concerns about public health and safety. In addressing the aforementioned potential public health hazard caused by stray animals, the existing approach adopted by the Hong Kong government is ‘catch and kill’.4 Unless the animals can be re-homed through animal welfare organizations within a certain time, they are put down. Unfortunately, statistics showed that most stray animals failed to be re-homed: the AFCD handled 5,800 stray dogs and 3,557 stray cats in 2011; among those only 852 dogs and 205 cats were successfully re-homed (SPCA, 2020). As for the rationale of government policies towards stray animals, the government considers itself as having ‘a statutory responsibility to manage the stray dog population to prevent rabies outbreaks, reduce the nuisance caused by stray dogs, and safeguard public health and safety in Hong Kong’ (AFCD, 2019). The underlying philosophical justification for the current government policy appears to be a mix of consequentialism and speciesism: the ‘catch and kill’ policy is effective in reducing the number of stray animals, but it also shows that the government prioritizes the interests of humans over non-human animals and that it does not truly recognize any right to urban space by non-human animals despite its claims to care about animal welfare (LC Paper, 2018). As the next section will illustrate, speciesism is a problematic philosophical notion. Instead of considering the rights and interests of humans as having absolute priority over those of non-human animals, contemporary philosophical approaches 3

This right is recognized as a human right by the 1966 International Covenant on Economic, Social and Cultural Rights. 4 The Hong Kong government also launched a trial ‘trap-neuter-return’ program between 2015 and 2018, but decided not to continue to pursue the program as it failed to achieve its objective of an annual reduction of the population of stray dogs by 10%. However, since there were significant flaws in the research design (e.g., new dogs could easily enter the site and the period of study was too short as compared to the average lifespan of dogs), the failure of this trial program should not be taken to mean that any trap-neuter-return program is doomed to fail. Rather, in a latter section, I will provide evidence that there are successful trap-neuter-return programs in reducing the population of stray animals. See LegCo Panel on Food Safety and Environmental Hygiene Outcome of the “Trap-Neuter-Return” Trial Programme for Stray Dogs. LC Paper No. CB(2)1318/17–18(03) (May 8, 2018) (hereinafter LC Paper), https://www.afcd.gov.hk/english/quarantine/files/report_to_legco_ eng.pdf (last visited October 29, 2021).

7 Analyzing the Conflict of Rights to Urban Space Between Humans …

115

emphasize that humans ought to accord certain moral consideration to non-human animals.

7.2.2 Philosophical Approaches to Animal Ethics: From East and West Perspectives In this section, I set out an Eastern perspective on animal ethics: the Buddhist compassion-based approach, as well as two main Western approaches to animal ethics: the utilitarian approach and the rights-based approach.5

7.2.2.1

The Buddhist Approach to Animal Ethics

Buddhism believes that humans and nature are inseparable: humans are part of nature and so should not harm nature just like humans would not harm fellow humans. The proper relationship between humans and nature should be that of harmonious coexistence, not humans conquering nature (Harvey, 2000, p. 156). This understanding of nature makes Buddhism more compromising: harmonious co-existence requires the balancing of interests of humans and non-human animals, thus, suitable for dealing with urban controversies. In Buddhism, there are five precepts intended to be upheld by all disciples. The first precept of Buddhism is ‘ahim . s¯a’, translated as ‘non-injury’ or ‘non-violence’: it rules out the intentional killing and harming of others (Finnigan, 2017, p. 3; Harvey, 2000, p. 69). Here, the scope of ‘others’ is contended: it may mean all living beings or only sentient beings (Finnigan, 2017, p. 3). Regardless of which interpretation one upholds, it is uncontentious that ‘others’ at least include all animals, as they are explicitly regarded as sentient (Finnigan, 2017, p. 3). As such, stray cats and dogs are considered morally significant in Buddhism and ought not be harmed or killed. Buddhism focuses on the importance of suffering in explaining why we ought not harm non-human animals. The first truth of the Four Noble Truths (Nik¯aya s¯utras) is the truth or fact of suffering (duh.kha). The third truth states that ‘suffering can end’, implying that humans have the ability to act to reduce suffering (Finnigan, 2017, p. 2). Buddhism believes that we ought to be compassionate to others’ suffering. The compassion-based argument goes as follows6 : 1. We should be compassionate (Finnigan, 2017, p. 6). 2. Compassion requires that we do not kill or harm sentient beings (Finnigan, 2017, p. 6). 5

There are also instrumental reasons to protect animal welfare or rights, for instance, the ecological approach focuses on the health of ecosystems and protecting certain animals, especially endangered species, is vital for maintaining ecological conservations. 6 Other than the compassion-based argument, there are alternative arguments based on Buddhism that deal with animal ethics. For an overview of alternative Buddhist arguments, see Finnigan (2017).

116

E. L.-L. Yim

3. Therefore, we should not kill or harm sentient beings. The first premise states that we ought to be compassionate. In Buddhism, compassion is ‘an altruistic attitude that strives for the welfare of others’ and this attitude arises ‘out of empathetic concern that they be delivered from suffering’ (Finnigan, 2017, p. 6). There are two justifications for why we should be compassionate. The first justification is that compassion itself has intrinsic value (Finnigan, 2017, p. 6) or is a virtue (James, 2004, p. 40). The test to ascertain whether a particular trait is a virtue is to ask ‘whether it would be possible for someone of an exemplary character to lack it’ (James, 2004, p. 40). For instance, Aristotle would maintain that it would not be possible to imagine a good life without courage but possible to imagine a good life without humility, thus courage is a virtue while humility is not (James, 2004, p. 40). Applying this test to Zen Buddhism, most Zen traditions consider compassion as necessary for an enlightened life, thus, for Zen, compassion is a virtue constitutive of enlightenment (James, 2004, p. 40). The alternative justification is that ‘the practical expression of compassion in nonviolent, non-cruel action is instrumental to the elimination of suffering, which has intrinsic disvalue’ (Finnigan, 2017, p. 6). This places the ultimate rationale for why we ought not harm others in the intrinsic disvalue of suffering, where compassion merely acts as a practical attitude (or means) to the goal of no-suffering. The two justifications are not mutually exclusive: it may be true that compassion has intrinsic value while suffering has intrinsic disvalue. The second premise links compassion to the non-injury principle (Sahni, 2008, p. 48): being compassionate implies ‘non-cruelty’ or ‘harmlessness’ (avihims¯a) (Finnigan, 2017, p. 6). As mentioned, being compassionate requires one to have empathetic concern for other sentient beings (Finnigan, 2017, p. 6). Empathy means that one can understand and share the feeling of others. Realizing that others also want happiness and not pain, one then ought to protect others in a way similar to how one protects oneself (Harvey, 2000, p. 125). Compassion, therefore, has a practical or action-oriented dimension: when a person develops compassion, he/she will have the propensity to strive to implement the objective of compassion, i.e., to strive for the welfare of others. Since cruelty or harm is against the objective of striving for the welfare of others, this links compassion to the non-injury principle. Here, the no-kill policy should be qualified. Under certain circumstances, for instance, if the animal is suffering from severe pain and there is a close-to-zero chance of recovery, euthanasia may well be what compassion demands. But, in the absence of special circumstances, the virtue of compassion demands that one ought not kill or harm other sentient beings. Buddhism acts not only as a philosophical doctrine but also as a practical guideline for disciples to follow. Here, I use three examples to illustrate how Buddhists uphold their precepts in real life.7 The first example is the Buddhist attitude towards pest control. Recognizing human interests of living in a pest-free environment and pests’ interests in surviving, Buddhism advocates that we should remove pests to a safe distance and release them wherever possible (Harvey, 2000, p. 167). Buddhists 7

Another example is that Buddhism, unlike many other religions, condemns animal sacrifice. This condemnation is also motivated by compassion (Sahni, 2008, p. 48).

7 Analyzing the Conflict of Rights to Urban Space Between Humans …

117

practice this ‘remove and release’ strategy with rats, mice, insects, and snakes, except those that are most vicious and deadly (Harvey, 2000, p. 167). This example shows how Buddhism seeks a harmonious co-existence with even the least likable part of nature. It also illustrates how Buddhists address conflicts of interest between humans and non-human animals: finding an acceptable middle point. The second example concerns the practice of fangsheng (放生), i.e., the custom of rescuing and liberating animals, typically through releasing fish or turtles that were captured by other humans into the ponds. The practice of fangsheng is an illustration of compassion and kindness towards all sentient beings common in the Chinese and Indian Buddhist traditions (Pu, 2014, p. 131). Beginning in the early Tang dynasty, fangsheng ponds, i.e., ponds for releasing living creatures, are constructed and incorporated into the design of Chinese Buddhist temples (Pu, 2014, p. 130). The construction of these ponds conveys the idea that animal welfare matters and promotes the practice of protecting animals. This example also shows that in addition to a negative duty to avoid killing or harming animals, Buddhism encourages positive actions from disciples to help animals that are captured and endangered by others. The third example illustrates the flexible dimension of the Buddhist doctrine: while non-harming of animals normally requires Buddhist disciples to be vegetarians, in Tibet, this becomes practically difficult as ‘meat has been a staple of the Tibetan diet’ (Barstow, 2013, p. 75). Recognizing vegetarianism as a difficult ideal, Jigmé Lingpa offers his students a variety of means—including prayers to benefit the animals—to moderate the negativity of eating meat without fully abandoning the meat-eating habit (Barstow, 2013, p. 75). While prayers may appear superstition to non-believers, this demonstrates how Buddhism attempts to be adaptive to real-life difficulties and that Buddhism is meant to provide a feasible guideline for its believers to follow.

7.2.2.2

The Utilitarian Approach to Animals Ethics

The utilitarian approach, advocated perhaps most notably by Peter Singer (1975/2015), argues that one ought to grant equal moral consideration to humans and non-human animals, whereas prioritizing the interests of humans merely because they are humans amounts to speciesism. Specifically, Singer (1975/2015, p. 28) begins his argument with a well-recognized moral principle in contemporary moral and political theory—the basic principle of equality among all human beings—and argues that accepting this principle requires one to extend equal consideration to non-human animals. Assuming the basic principle of equality to be a well-accepted moral principle, Singer (1975/2015) considers the question of what it means for humans to be equal. He contends that the basic principle of equality cannot be based on descriptive or factual equality of all human beings because everyone has different capacities and abilities, feelings, shapes and sizes, etc. (Singer, 1975/2015, pp. 30–31). Rather, the basic principle of equality is ‘a prescription of how we should treat human beings’ (Singer, 1975/2015, p. 33, emphasis in original). He further argues that it is precisely because we ought to treat humans as equals that racism and sexism are morally

118

E. L.-L. Yim

wrong. Singer (1975/2015, p. 35) then takes a controversial step and analogizes racism with ‘speciesism’, i.e., a biased attitude that involves prioritizing the interests of members of one’s own species over those of members of other species. He believes the problems of racism, sexism, and speciesism all follow an identical pattern: [Racists/Sexists/Speciesists] prioritize the interests of their own [race/sex/species] over another [race/sex/species], thereby violating the principle of equality (Singer, 1975/2015, pp. 38–39). While many individuals believe that a higher degree of intelligence of humans over non-human animals entitles humans to some sense of superiority, perhaps by way of higher moral standing, Singer believes that this line of reasoning is faulty because, among humans, we also have different degrees of intelligence. Singer contends that, if the possession of a high degree of intelligence does not entitle one human of high intelligence to prioritize his/her interests over another human of low intelligence, by the same token, it also cannot entitle humans of high intelligence to prioritize their interests over nonhumans of low intelligence (Singer, 1975/2015, p. 35). Singer (1975/2015, pp. 36–37) follows Bentham (1789) in believing that the capacity for suffering ought to be used as the sole basis for moral consideration. This is because, for Singer (1975/2015, p. 37), the capacity for suffering is the prerequisite for having interests. He further argues that the principle of equality requires that, whatever the nature of the sentient being (i.e., regardless of whether it is a human), its suffering ought to count equally as the suffering (of comparable degree) of any other sentient beings (Singer, 1975/2015, p. 38).

7.2.2.3

The Animal Rights Approach

Another prominent Western approach to animal ethics is animal rights theories. In strong versions of animal rights theories, all animals with a subjective existence, i.e., sentient or conscious beings, are considered as possessors of certain rights, e.g., the right to life and the right not to be tortured; and this gives rise to our duties to animals (cf. Kant’s theory that we have duties towards animals but not to animals).8 Rights are, in Dworkin’s (1977) phrase, ‘trump’: they provide exclusionary reasons for action and ought not be sacrificed merely because some humans would benefit from their violation. Many theories on animal ethics fall within the category of the animal rights approach. For instance, Tom Regan (1983) contends that nonhuman animals that satisfy the ‘subject-of-a-life’ criterion—that is, animals that have beliefs, desires, emotions, memory, a sense of the future, preference, etc.— have inherent values and should not be treated as mere means. Gary Francione (1996) also argues that we should eradicate the property status of animals. Paola Cavalieri (2001) argues that non-human animals deserve human rights. Joan Dunayer (2004) provides evidence that even insects and snails have consciousness, and argues that all sentient beings should possess basic legal rights. Gary Steiner (2008) argues for a ‘cosmic holism’ where all sentient beings should be considered full members of 8

For discussion on Kant’s duties towards animals, see, for instance, Denis (2000).

7 Analyzing the Conflict of Rights to Urban Space Between Humans …

119

the moral community, thus, we have fundamental moral obligations towards nonhuman animals. Donaldson and Kymlicka (2011) contend that some animals should be treated as co-citizens of our community. According to animal rights theories, sentient beings possess rights because these beings have their own subjective experiences of their lives and the world; this subjectivity demands a special kind of protection by way of rights (Regan, 1983; Donaldson & Kymlicka, 2011, p. 24). Proponents of the animal rights theories further argue that possessing rights does not require certain cognitive or moral capacities, e.g., the capacities to engage in moral arguments and make moral commitments, by appealing to an argument from marginal cases. The argument from marginal cases typically goes as follows: Many humans, including the mentally disabled and infants, do not possess the requisite cognitive or moral capacities. Furthermore, some animals, including the great apes (Cavalieri & Singer, 1993) and dolphins (White, 2007), possess those cognitive capacities; these animals’ cognitive capacities may exceed some humans. Therefore, if such capacities are necessary for the possession of certain rights, then it seems that not all humans possess rights and some animals are better candidates as the possessors of rights than some humans. If one wants to reject this unintuitive conclusion, one must also reject the claim that possessing rights requires those cognitive or moral capacities. The implication is that non-human animals also possess certain rights including the right to life, the right not to be tortured, etc. Among animal rights theories, Sue Donaldson and Will Kymlicka’s (2011) theory directly explores the issue of stray animals, emphasizing the special link between humans and stray animals. Specifically, Donaldson and Kymlicka (2011, p. 14) divide non-human animals into three categories based on their relationship with humans, and argue that we have different duties to these animals in a way akin to our concept of citizen, migrant, and foreign sovereign: (a) domesticated animals ought to be granted full citizenship, which entails that we should ‘ensure the effective political representation of domesticated animals’, perhaps through advocates or trustees (Donaldson & Kymlicka, 2011, p. 153); (b) liminal animals are akin to migrants or denizens and ought to be treated as such; (c) animals in the wild should be considered as forming their own separate sovereign communities in the territories they occupy. Among the three categories, (a) domesticated animals and (b) liminal animals are of relevance to the problem of stray animals. According to Donaldson and Kymlicka (2011, pp. 74–75), domesticated animals ought to be regarded as citizens because of the causal role humans have played in bringing them into our society and making them reliant on humans for food and ongoing care, thereby closing off the alternative of them leaving human society. Donaldson and Kymlicka (2011, p. 101) analogize the situation of domesticated animals with former slaves who rightly demanded inclusion into the political community that they were bought into: ‘When we bring newcomers into our society on a permanent basis, we owe them and their descendants membership, in the form of citizenship, above and beyond universal human rights’. Anticipating an objection that domesticated animals are limited in their cognitive and rational capacities, and

120

E. L.-L. Yim

thereby unfit to be citizens, Donaldson and Kymlicka (2011, p. 60) argue that citizenship ought not be based upon mental competence. They analogize non-human animals with severely disabled humans: while severely disabled humans might not have sufficiently sophisticated cognitive capacities to contribute to political deliberations, they are still citizens and can exercise their political agency through their family or friends whom they trust (Donaldson & Kymlicka, 2011, pp. 103–104; Silvers & Francis, 2005). By the same token, domesticated animals can also be co-citizens and exercise their agency by developing trusting relationships with humans—perhaps pet owners—who can represent them in public policy debates. Because of their status as citizens, domesticated animals acquire a set of responsibilities to humans and other animals in this shared society, including a duty to ‘respect the basic liberties of all’, and—perhaps even more controversially—this entails that domesticated animals ‘do not have a right to food that involves the killing of other animals’ (Donaldson & Kymlicka, 2011, p. 150). Liminal animals, on the other hand, ought to be treated as denizens or co-residents, but not co-citizens. Denizenship is characterized as a relationship ‘governed by norms of justice’ but with ‘a reduced set of rights and responsibilities’ (Donaldson & Kymlicka, 2011, p. 214). The justifications for treating liminal animals as denizens are two-fold. First, they cannot be legitimately excluded because there is no other place where they belong (Donaldson & Kymlicka, 2011, p. 227). Second, they are not eligible for citizenship because liminal animals often ‘do not have the sociability with humans that characterizes domesticated animals’ and there is no relationship of trust between them and humans that allows for the aforementioned trust model of agency (Donaldson & Kymlicka, 2011, p. 229). Applying their citizenship model to stray animals, Donaldson and Kymlicka propose a twofold method of dealing with stray cats and dogs. For newly abandoned stray animals not yet adapted to the feral lifestyle, they ought to be returned to their original state of domestication, perhaps through re-homing programs, and thereafter be treated as co-citizens (Donaldson & Kymlicka, 2011, pp. 224–225). For stray animals that fully adapt to their feral lifestyle, they have effectively become liminal animals and ought to be treated as denizens. They ought to be allowed to exist peacefully in the city, since denizenship still comes with a right to residence (Donaldson & Kymlicka, 2011, pp. 227, 228 & 241).

7.2.3 A Comparison Between Buddhism, Utilitarianism and the Animal Rights Approach This section compares the three aforementioned approaches, showing that Buddhism is a more suitable approach to deal with real-life urban controversies involving nonhuman animals. Here, I adopt three criteria in comparing philosophical doctrines: (a) whether they adequately take into account the relational aspect of morality; (b) whether each approach falls foul to an important objection to animal ethics literature:

7 Analyzing the Conflict of Rights to Urban Space Between Humans …

121

Bernard Williams’ ‘human prejudice’ objection; and (c) the practical desirability of each doctrine.

7.2.3.1

Dealing With the Relational Aspect of Morality

Here, I consider how well each approach deals with the relational aspect of morality. As mentioned in the Introduction, stray cats and dogs have a special moral standing in relation to humans for two reasons: (i) they are specifically vulnerable to human actions because they rely heavily on urban space for food and shelter; (ii) they are typically victims of pet abandonment, either directly or indirectly, so some special considerations are called for concerning their suffering of past injustice caused by humans. A good philosophical account addressing the problem of stray animals, therefore, should adequately take into account the relational aspect of morality. Here, I consider how well the three approaches deal with this. The Buddhist approach is capable of taking seriously the moral relations between humans and non-human animals. Compassion is context-dependent: how we ought to be compassionate to a specific being often depends on our relationship with that being. For instance, we tend to be more compassionate towards those vulnerable to us. We also tend to be more compassionate towards those who suffered from past injustice. Therefore, our special moral relationship with stray animals—particularly, their vulnerability to our actions and past injustice caused by pet abandonment— constitutes a factor that affects what compassion demands in the specific context. Considering pain and suffering as the sole basis for moral consideration, Singer’s utilitarian approach fails to take seriously the relational aspect of morality. As Cora Diamond (1978) correctly points out, concepts like ‘pet’ are morally thick: the concept itself is inextricably linked to certain associated imperatives and duties (Diamond, 1978, pp. 469–470). To consider a specific dog your ‘pet’ encompasses recognizing that it ‘is not something to eat, it is given a name, is let into our houses’; these imperatives or permissions are constitutive of what it means to be a pet (Diamond, 1978, p. 469). It is not about the dog possessing certain morally relevant characteristics which make it worthy of a name or being let into a house that other animals lack. Stray animals are typically abandoned pets (or their offspring). They have special moral relationships with humans by virtue of past injustice done to them by humans. Killing a stray animal is not just killing any animal that is a potential threat to public health. Rather, it amounts to killing an animal that was abandoned by humans, forced to live in the streets, and now considered a threat to public health precisely because of human wrongdoing. By neglecting the relational aspect of morality, the utilitarian approach fails to take into account the duties arising from these moral relationships. Donaldson and Kymlicka’s animal rights approach takes seriously moral relations between humans and non-human animals, but in a way that produces counterintuitive implications, by failing to take seriously the moral relations between citizens and migrants. Donaldson and Kymlicka’s citizenship model considers domesticated animals as citizens but allows some migrant workers (especially illegal migrants with

122

E. L.-L. Yim

strong ties to their home countries who can go back whenever they want to) to be denizens. This is problematic: as Diamond (1978) correctly points out, the moral relations between people and people differ from those between people and animals. The concept of ‘person’ is morally thick and encompasses certain duties as to how we ought to treat one another (Diamond, 1978, p. 470).9 If you fail to see your relationship with other persons—including illegal migrants—as entailing certain duties as to how you ought to treat them, this means that you fail to see them as ‘persons’. It seems intuitive that such duties include duties of prioritizing their rights over nonhuman animals including domesticated ones. If this relational view of how we relate to other persons (regardless of citizenship) holds, then it is problematic to prioritize the interests of a domesticated animal over a human migrant.

7.2.3.2

Whether the Approach Falls Foul to the Human Prejudice Objection

One common theme of all three approaches is anti-speciesism. A famous critique of the anti-speciesism view is provided by Bernard Williams (2006), who argues that, when we talk about how animals ought to be treated, we always talk about it from a human outlook. There is no way out of it. Instead of considering human prejudice as an unavoidable evil, Williams (2006, p. 150) suggests that we should embrace it. Williams (2006, p. 150) asks us to imagine a group of more intelligent aliens coming to Earth and wanting to rule Earth (assuming that they are also better at ruling than human beings). Williams (2006, p. 150) believes that to resist such alien rule under the banner ‘defend humanity’ is to make an ethical appeal, thus, ‘the idea of there being an ethical concept that appeals to our species membership is entirely coherent’. In what follows, I consider whether the three approaches fall foul to this human prejudice objection, or whether the approaches can provide a persuasive anti-speciesism argument without claiming to be impartial. The Buddhist account focuses on how humans ought to act based on traits that are internal to humans, i.e., the ability to be compassionate. This allows Buddhism to endorse the human prejudice, while pointing out that being compassionate is what a proper human outlook demands when we deal with non-human animals. It is consistent with Williams’ idea of ‘defending humanity’ as compassion is part of what humanity requires. Furthermore, Buddhism sees the relationship between humans and nature as that of harmonious co-existence and does not see humans as stewards of stray animals. It is not problematically anthropocentric. Singer’s utilitarian approach is susceptible to Williams’ (2006) criticism: while Singer criticizes ‘speciesists’ as suffering from human prejudice akin to racists and sexists, he also suffers from a kind of human prejudice himself: by extending the

9

Diamond (1978, p. 470) uses the term ‘human beings’ rather than ‘persons’. However, I believe the term ‘person’ fits her meaning better because ‘human being’ is often understood as a biological term whereas ‘person’ is more easily understood as a thick concept that may encompass duties.

7 Analyzing the Conflict of Rights to Urban Space Between Humans …

123

moral importance of the pain and suffering of other human beings to those of nonhuman animals. While Singer claims that an ‘impartial’ observer would want to reduce suffering, Williams (2006, pp. 145–147) argues that there is no such thing as an impartial observer and any imaginary observers created by a philosopher already suffer from the human prejudice. Instead of seeing the human prejudice and speciesism as morally impermissible, Williams believes that we should embrace them. If speciesism is morally acceptable, then there is no logical extension as to how we ought to treat stray animals based on how we ought to treat other humans. As such, Williams’ argument is a forceful challenge against Singer or any doctrine that tries to be impartial. Donaldson and Kymlicka’s animal rights approach does not require impartiality, but it also provides a problematic human outlook by seeing humans as stewards of domesticated animals and specifying what responsibilities domesticated animals have towards humans and other animals. Domesticated animals cannot be regarded to have accepted such responsibilities in any sense: they do not even understand what these responsibilities mean. Rather, to allocate responsibilities to domesticated animals is to take a humanistic position and apply it to animals, even if such responsibilities may go against their natural diets and instinct. For instance, Donaldson and Kymlicka (2011, p. 150) explicitly state that domesticated dogs and cats should be fed ‘a vegan diet’ because they ‘do not have a right to food that involves the killing of other animals’. This essentially is a way for humans to exert ‘power over animals by deciding what behaviors are and are not acceptable for animals’ (Nurse & Ryland, 2013). This forms the problematic human-centric aspect of Donaldson and Kymlicka’s account.

7.2.3.3

Practical Considerations

There are two practical advantages of the Buddhist approach over the Western approach. The first advantage is that the Buddhist argument is more convincing to the general public and policymakers. In general, an argument appeals better to the public and policymaker if the argument is one with which the public can sympathize. Focusing on the pain and suffering of stray animals often arouses sympathy. This is the advantage of the utilitarian approach and the Buddhist approach, as both appeal to the elimination of suffering: Singer (representing the utilitarian approach) believes that the capacity to suffer gives rise to interests whereas the Buddhist approach believes that suffering induces compassion. An important difference between the two approaches is that the utilitarian approach is comparative while the Buddhist approach is non-comparative. The utilitarian argument rests upon a comparison between nonhuman animals and certain marginal groups of humans, i.e., the intellectually or cognitively disabled, arguing that the two ought to be treated equally. Such a comparative approach can be undesirable as a matter of policy justification, because it can be disrespectful to marginal groups in society, and their families or friends. Singer’s position on disability, especially his support for euthanasia for some disabled infants, has caused a public outcry, with protesters claiming that his position fails to respect

124

E. L.-L. Yim

diversity and inclusivity (Zhou, 2020). On the other hand, the Buddhist approach is non-comparative and does not suffer from the same problem. By focusing on the harmonious co-existence between humans and non-human animals, the Buddhist argument is an appealing approach to animal welfare activists. By focusing on the virtue of compassion, Buddhism provides reasons for the general public to support the welfare of stray animals: this cultivates their virtue and makes them better people. As for Donaldson and Kymlicka’s animal rights theory, while it does not support euthanasia for disabled infants, their citizenship model allows domesticated animals to be co-citizens while classifying some migrants as denizens. This also appears disrespectful to certain marginal groups of the society, i.e., migrants, and therefore fails to appeal to some members of the society. Another practical advantage of the Buddhist approach is that it is more actionguiding. Buddhism and the two Western approaches differ in their view on the role of feelings and dispositions in ethics. The Buddhist emphasis on compassion—which is a virtue as well as a feeling—means that one cannot do the right thing in a completely dispassionate manner (James, 2004, p. 64). Part of the focus of Buddhist ethics is about what kind of person you are, specifically whether you have the right attitude and disposition to do the right thing, not merely whether your actions are right or wrong. This differs from the utilitarian tradition which only focuses on consequences and the rights-based tradition which focuses on whether there is any breach of rights; both being entirely consistent with dispassionate rightful actions. In Buddhism, what matters is whether you adhere to the precepts and are motivated by the right reasons; it is not a problem if your action eventually fails to achieve the best consequences.10 This shows the action-guiding dimension of Buddhism: cultivating the right virtues creates the dispositions to do the right thing, which turn into habits and become self-sustaining. In short, the Buddhist approach is well-equipped as a philosophical and practical doctrine to address urban controversy problems involving conflicts of interest between humans and non-human animals because it addresses the relational aspect of morality, does not fall victim to the ‘human prejudice’ objection, and is practically desirable.

7.2.4 A Proposed Solution to Stray Animals This section applies the aforementioned philosophical approaches to the problem of stray cats and dogs in Hong Kong. Specifically, I argue that, in dealing with the public health problems caused by existing stray animals, a ‘trap-neuter-return’ policy rather than the existing ‘catch-and-kill’ policy should be adopted. I also argue that other measures are necessary to seek harmonious co-existence with stray animals, 10

This is not to say that all Western philosophy neglects the importance of motive. For instance, Kant is concerned with the motive of action, though he recognizes a domain of strict right that is distinct from virtue. Western virtue ethicists (e.g., Aristotle) also see motive as important.

7 Analyzing the Conflict of Rights to Urban Space Between Humans …

125

including an adoption program for newly abandoned stray animals incapable of surviving in nature; the provision of food, shelter, and vaccination for stray animals; a robust educational and promotional program against abandoning pets; a special screening system for families who plan to purchase pets; and a special one-off tax at the time of buying pets to provide the fund necessary for implementing the above measures. These measures, I believe, serve as a proper balance between the interests of human residents in maintaining public health and the interests of stray animals in surviving and living a peaceful, undisturbed life.

7.2.4.1

Dealing With Existing Stray Animals

All three aforementioned approaches regard the current ‘catch and kill’ policy as morally impermissible, though for different reasons. The Buddhist theory considers killing impermissible: the virtue of compassion demands that we ought not kill or harm sentient beings. This entails not killing stray animals. As for Singer’s utilitarian theory, it seems that the interests of stray animals in not being caught and killed far exceed the interests of human beings in safeguarding public health and reducing nuisance. Killing an animal eliminates the important interest in survival and all future interests of the animal in an irreversible manner, whereas living in a less hygienic environment causes a relatively mild level of discomfort. Animal rights theories also provide clear guidelines as to how we ought to treat stray cats and dogs: we must not violate their rights. This includes a right to survival. The Buddhist approach emphasizes balancing the conflicting interests of humans and non-human animals, while seeking harmonious co-existence of humans and nature. It appears to support the following policy: stray cats and dogs should be caught, neutered, and vaccinated against common diseases, and returned to where they were caught, at least if they are believed to be able to survive in such an environment.11 If they are reasonably considered incapable of surviving in nature (especially for newly abandoned pets that may not be able to adapt to the environment), they should be kept in shelters to await adoption. To illustrate why a trap-neuter-return program is supported by Buddhist ideology, let us recall the Buddhist attitude towards pest control, which also involves the conflicts of interest between humans and nonhuman animals. While recognizing that pests cause nuisance and negatively affect public health, Buddhism still seeks harmonious co-existence with pests and tries to find an acceptable middle point by practicing a ‘remove and release’ strategy with rats, mice, insects, and snakes. This serves as a relevant guiding reference for how we may deal with stray cats and dogs in a way that is consistent with Buddhist theory. In a way similar to the problem of rats, mice, insects, and snakes, stray cats and dogs are also sources of nuisance and cause public health problems. As sentient beings, stray cats and dogs also have an interest in living peacefully in their habitat. Therefore, one way of balancing conflicting rights and interests of both humans and stray animals 11

If the stray dog exhibits aggressive behavior, training and rehabilitation may be necessary before releasing the dog back to its habitat (or potentially a new habitat further away from civilization).

126

E. L.-L. Yim

involves respecting the right to life of existing stray cats and dogs, while limiting their population through neutering. It seems that the Western theories may also converge to support the trap-neuterreturn policy. Donaldson and Kymlicka (2011, p. 245) support some methods of population control of liminal animals including stray cats and dogs: ‘we may need to regulate the total numbers of liminal animals if coexistence is to be possible (through methods such as birth control vaccines, or by fostering habitat conditions allowing for population dispersal, and the re-emergence of predators or competitors)’. This seems to support a trap-neuter-return policy aiming at population control. It is harder to tell whether Singer’s utilitarian approach supports the trap-neuter-return policy. The answer would depend on the outcome of a utilitarian calculation that depends on specific circumstances: one needs to conduct a cost–benefit analysis balancing the distress caused to the animal against the discomfort suffered by residents by living in a less hygienic environment, and the answer may vary according to the context. Other than moral reasons, there are also policy reasons for adopting a trap-neuterreturn program. First, it is an effective way of controlling the population of stray animals because the stray animal population is expected to decline over time when the animals die gradually from natural causes. Such initiatives are practiced in Australia, Canada, Italy, New Zealand, the United Kingdom, and the United States. This practice is proved successful by some studies: for instance, during an eleven-year study at the University of Florida, the number of stray cats on campus declined significantly by 66%, showing that a long-term trap-neuter-return program can successfully control the population of stray animals (Levy et al., 2003). Second, the trap-neuter-return policy does not require the active and willing cooperation of many residents. As mentioned in an earlier section, many apartments, including public housing, do not allow renters to have large pets. Many Hong Kong families’ living conditions are poor: they live in ‘cage homes’ or ‘sub-divided flats’, and do not have sufficient room for themselves, much less a pet. The housing problems in Hong Kong, therefore, pose an important structural limit to the success of an adoption-focused policy: the pool of residents that are capable of adopting stray cats and dogs is limited. A ‘trap-neuterreturn’ policy, on the other hand, is feasible even without active support from the community. Third, whereas an adoption-focused policy requires much shelter space for animals awaiting adoption, the trap-neuter-return policy only requires temporary shelter for trapped animals awaiting neutering or post-neutering. This is especially of relevance in Hong Kong, where the capacities of the shelters of animal welfare organizations are very limited. It is costly and unsustainable to hold a large number of stray cats and dogs in shelters for a sustained amount of time while awaiting adoption.

7.2.4.2

Other Measures With Respect to Stray Animals

Importantly, a trap-neuter-return program alone is insufficient to achieve the objective of seeking harmonious co-existence with nature. Compassion may require that animals that are reasonably considered incapable of surviving in nature not be

7 Analyzing the Conflict of Rights to Urban Space Between Humans …

127

returned to nature and left to die. This explains why a complementary adoption program is necessary for some newly abandoned pets. Even for those capable of surviving in nature, living as a stray animal may not be easy. It would be compassionate for residents to feed the stray animals or build them temporary shelters. Such activity is already practiced voluntarily by residents in certain areas in Hong Kong and should be encouraged in other areas. Vaccinating stray cats and dogs against common diseases is also in line with being compassionate towards stray animals: an effective vaccination program prevents future suffering of animals from preventable diseases. In the long run, the problem of stray cats and dogs can only be resolved if pet owners stop abandoning their pets. Therefore, a successful trap-neuter-return policy needs to be supplemented by a robust educational and promotional program and an adoption program. A robust educational and promotional program should educate pet owners to rethink their decision of abandoning their pet, thus solving the problem from its roots; whereas an adoption program would enable potential pet owners to opt for adoption rather than purchase from pet stores or breeders. Another solution would be to implement a special screening system for families who plan to purchase pets (in a way similar to the screening system implemented by animal welfare organizations for families who plan to adopt pets from their shelter). This would hopefully screen out some potentially irresponsible pet owners and reduce pet abandonment rates. Finally, implementing these solutions requires funding and questions arise as to who should bear this financial burden. Here, one solution is to require pet owners to pay a special one-off tax at the time of buying pets; the tax revenue goes to services for stray cats and dogs, e.g., to provide stray animals long-term homes and/or care resources. This measure also encourages potential pet owners to adopt rather than buy pets. Before ending this section, I address two related objections that my proposal falls short of taking animal rights seriously. The first objection states that non-human animals have a right to reproduction and involuntary neutering violates this right. The second objection states that neutering has negative health consequences on nonhuman animals. Essentially, both objections state that a trap-neuter-return policy over-prioritizes the rights and interests of humans over those of non-human animals. In response to the first objection, arguably a right to reproduction only exists if the animal is able to experience an interest in reproduction, which requires the capacity to form some future-oriented desires. However, as Clare Palmer (2010, p. 124) points out, domesticated animals do not experience ‘future-oriented anxiety about the longterm consequences of their vulnerability’. If cats and dogs do not have reproductive interests and mostly act based on instincts, arguably they also do not have reproductive rights. In response to the second objection, the health impact of neutering may depend on the age, sex, and breed of the animal. As some studies show potential health problems associated with the neutering of young dogs (under 12 months of age) (Warnes, 2018), this supports neutering stray dogs only after they reach 12 months old.

128

E. L.-L. Yim

7.3 Conclusion This chapter provides a philosophical and practical analysis of the problem of stray cats and dogs in Hong Kong, and through this lens, also contributes to the broader social debates on the tensions between the rights to urban space of humans and non-human animals. It contrasts Eastern and Western perspectives on animal ethics, focusing on the Buddhist compassion-based argument, the utilitarian approach and animal rights theories. This chapter considers the Buddhist approach as the most suitable approach for addressing urban controversy disputes because it provides an adaptive action-guiding principle that seeks harmonious co-existence between humans and non-human animals. Besides, this approach encourages policies that balance the interests of humans in maintaining public health with non-human animals’ quest for survival. In applying the Buddhist approach in resolving the problem of stray cats and dogs, this chapter argues for a ‘trap-neuter-return’ policy. Such a policy allows the government to limit the population of stray animals while respecting the right of these animals not to be killed or harmed. Acknowledgments I would like to thank the editors for their valuable feedback. I would like to thank Larry Lai for this opportunity and his helpful comments. I would also like to thank Charles Beitz and Anna Stilz for their insightful comments. An earlier version of this chapter was presented at the political theory half-baked lunch seminar series at Princeton University. I would like to thank Daniel Browning, Claudia Cervantes Perez, Andrew Hahm, Gaby Nair, Jose Sanchez, Lynnea Shuck, Lindsay Van Horn, and Jocelyn Wilson for the helpful discussion.

References AFCD. (2019). “Trap-Neuter-Return” Trial Programme for Stray Dogs. Agriculture, Fisheries and Conservation Department. https://www.afcd.gov.hk/english/quarantine/tnr_trial_pro gramme.html Barstow, G. (2013). Buddhism between abstinence and indulgence: Vegetarianism in the life and works of Jigmé Lingpa. Journal of Buddhist Ethics, 20, 74. Bentham, J. (1789). An introduction to the principles of morals and legislation. Clarendon Press. Cavalieri, P. (2001) The animal question: Why nonhuman animals deserve human rights. Oxford University Press. Cavalieri, P., & Singer, P. (Eds.). (1993). The Great Ape Project: Equality beyond humanity. Fourth Estate. Chow, Y. (2021, March 18). Hong Kong emigration wave takes toll on its least political residents - its pets. Reuters. https://www.reuters.com/article/us-hongkong-security-britain-immigration/ hong-kong-emigration-wave-takes-toll-on-its-least-political-residents-its-pets-idUSKBN2B A0QD Denis, L. (2000). Kant’s conception of duties regarding animals: Reconstruction and reconsideration. History of Philosophy Quarterly, 17(4), 405–423. Diamond, C. (1978). Eating meat and eating people. Philosophy, 53(206), 465–479. Donaldson, S., & Kymlicka, W. (2011). Zoopolis : A political theory of animal rights. Oxford University Press. Dunayer, J. (2004). Speciesism. Ryce Publication.

7 Analyzing the Conflict of Rights to Urban Space Between Humans …

129

Dworkin, R. (1977). Taking Rights Seriously. Harvard University Press. Finnigan, B. (2017). Buddhism and animal ethics. Philosophy Compass, 12(7). Francione, G. (1996). Rain without thunder: The ideology of the Animal Rights Movement. Temple University Press. Harvey, P. (2000). An introduction to Buddhist ethics: Foundations, values and issues. Cambridge University Press. James, S. P. (2004). Zen Buddhism and environmental ethics. Routledge. LegCo Panel on Food Safety and Environmental Hygiene Outcome of the “Trap-Neuter-Return” Trial Programme for Stray Dogs. LC Paper No. CB(2)1318/17–18(03). (2018, May 8). https:// www.afcd.gov.hk/english/quarantine/files/report_to_legco_eng.pdf Leung, C. (2021, August 7). Left behind: Hong Kong’s emigration wave leads to more pets being abandoned as owners leave city in a hurry. South China Morning Post. https://www.scmp.com/ news/hong-kong/law-and-crime/article/3144235/left-behind-hong-kongs-emigration-waveleads-more-pets Levy, J. K., Gale, D. W., & Gale, L. A. (2003). Evaluation of the effect of a long-term trapneuter-return and adoption program on a free-roaming cat population. Journal of the American Veterinary Medical Association, 222(1), 42–46. Nurse, A., & Ryland, D. (2013). A question of citizenship. Journal of Animal Ethics, 3(2), 201–207. Palmer, C. (2010). Animal ethics in context. Columbia University Press. Pu, C. (2014). Ethical treatment of animals in early Chinese Buddhism: Beliefs and practices. Cambridge Scholars Publishing. Regan, T. (1983). The case for animal rights. University of California Press. Sahni, P. (2008). Environmental ethics in Buddhism: A virtues approach. Routledge. Shih, C., & Singer, P. (2018). Animal welfare: A Buddhist-Utilitarian dialogue. The Harvard Review of Philosophy, 25, 169–181. https://doi.org/10.5840/harvardreview2018251 Silvers, A., & Francis, L. P. (2005). Justice through trust: Disability and the “Outlier problem” in Social Contract Theory. Ethics, 116(1), 40–76. Singer, P. (2015), Animal liberation: The definitive classic of the animal movement. Open Road Integrated Media (Original work published 1975). SPCA. (2020). Animal welfare in Hong Kong. SPCA. https://www.spca.org.hk/en/animal-welfare/ what-is-animal-welfare/animal-welfare-in-hong-kong Steiner, G. (2008). Animals and the moral community: Mental life, moral status, and kinship. Columbia University Press. Warnes, C. (2018). An update on the risks and benefits of neutering in dogs. The Veterinary Nurse. https://www.theveterinarynurse.com/review/article/an-update-on-the-risksand-benefits-of-neutering-in-dogs White, T. (2007). In defense of dolphins: The new moral frontier. Blackwell. Williams, B. (2006). The human prejudice. In A. W. Moore (Ed.), Philosophy as a humanistic discipline (pp. 136–152). Princeton University Press. Zhou, N. (2020, February 18). Peter Singer event cancelled in New Zealand after outcry over disability stance. The Guardian. https://www.theguardian.com/world/2020/feb/19/peter-singerevent-cancelled-in-new-zealand-after-outcry-over-disability-stance

Chapter 8

An Examination of the Multiple Ethical Approaches by Which the Worth of Urban Trees May Be Defended: The Case of Stonewall Trees in Hong Kong Francis K. T. Mok Abstract While human beings want to have trees and other greeneries in their communities, they also tend to put their rights first when there is a conflict of rights and interests between them and other non-human entities. Trees in the urban context therefore always have to defend their value and right to survive against human aggressions. In this chapter, with special reference to the case of stonewall trees in Hong Kong, various approaches of defending the rights and interests of trees will be examined. I will start with two approaches commonly found in the Western literature, namely, the biocentric and the holistic approach. It will be argued that the biocentric one would likely reinforce an adversarial attitude which may not be desirable in capturing the relationship between trees and human agents. Whereas the holistic approach, because of the inherent problem of defining the boundary of the whole, is found to be not particularly useful in capturing the value of trees in an urban setting. Finally, I will discuss if Daoism, an essentially Eastern perspective, could offer a way out by refraining from defending one’s rights and well-being as well as stressing the importance of yielding and non-contention.

8.1 Introduction In this chapter, I will address the philosophical issue regarding how we should value trees in densely populated urban setting like that in Hong Kong, Tokyo, or Singapore, and how urban trees may defend their interests and rights against human activities. In the next section, with special reference to the case of stonewall trees in Hong Kong, I will provide an overview of the conflicts between human agents and roadside trees. It will be followed by an examination of their conflicts from various philosophical perspectives. First, the multiple values of trees that may be attached to urban trees will be described. It will be shown how argument in favor of trees preservation may be constructed by appealing to the functional, historical, or cultural roles trees have been F. K. T. Mok (B) Department of Social Sciences, The Education University of Hong Kong, Hong Kong, China e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 B. Yung et al. (eds.), Rights and Urban Controversies in Hong Kong, Governance and Citizenship in Asia, https://doi.org/10.1007/978-981-99-1272-8_8

131

132

F. K. T. Mok

playing. Second, I will suggest how it would be accused of being anthropocentric by the biocentric argument which values the inherent worth of trees as goal-oriented entity. Then the pros and cons of the right to self-defense (to be enjoyed by both trees and human agents) entailed by the biocentric perspective will be discussed. Third, I will proceed to consider the strength and limitation of the holistic perspective which contends that trees should be valued not as (goal-oriented) individual entities but according to their contribution to the ecological whole. Finally, I will examine the usefulness of the Daoist view that non-contention or non-competition, as a principle as well as a policy, is most conducive to the preservation of the basic interests of living entities.

8.1.1 Stonewall Trees in Hong Kong: A Striking Example of the Conflict of Rights Between Human Agents and Urban Trees Just like human beings, trees have a natural tendency to survive, sustain, grow, and develop. In particular, the Chinese Banyan trees that are commonly found in many south east Asian countries have exceptional ability to sustain themselves. In Hong Kong, one of the amazing scenes in urban areas is that some trees even managed to settle, grow, and prosper on the old stonewalls constructed almost a hundred years ago. On the one hand, we find their exceptional ability to endure against all odds truly spectacular and admirable; but, on the other, we sometimes find them troublesome because, even in a highly vulnerable and unstable condition, they would still be able to linger on for quite a long time, hence being a risk factor in the neighborhood. When they have risk of collapse, should they be removed right away for the sake of human safety? Or should human beings be more patient, less self-interested, and let them or even help them to recover so that they cease to be a risk in the community? How we respond to these questions depends on our judgment on the worth of trees as against humans and the justifications that may defend their worth.

8.1.1.1

Historical Background of Stonewall Trees in Hong Kong

First of all, why were stonewalls widely constructed on the Hong Kong Island? Let me quote a short but concise paragraph describing the emergence of stonewalls after Hong Kong became a British colony. Since the founding of the city in the 1840s, there has been acute demand of land for urban growth. To overcome the hilly terrain with limited flat land for development, stone retaining walls of various types were built by traditional Chinese masonry techniques to provide horizontal platforms and stabilize disturbed terrain. With sub-tropical climate, the presence of plant species usually Ficus spp. with strangler habit, joins between the stonewall blocks, the soil behind the walls and ground water seepage have permitted plant growth and stonewall trees have established on vertical surfaces on the stone retaining walls. (Development Bureau, 2013, 1.1)

8 An Examination of the Multiple Ethical Approaches by Which …

133

The history of stonewalls was in parallel to the urban development launched by the British colonial government. The walls were built for the sole purpose of providing support to the flat land created on hilly terrain. Out of our expectation, some plant species managed to develop a symbiotic relationship with those vertical walls. As commented by Deborah Kuh, Head of Greening, Landscape and Tree Management section of the Development Bureau of the HKSAR, “[the trees] grow on walls that were never really designed to support them” (30th April 2018, SCMP). In short, the people residing on the Hong Kong Island first built the walls, and then the trees found their ways to grow on an artificial structure which was not meant to accommodate them. More importantly, those trees not only survived, they thrived and flourished over the years. According to Prof. C. Y. Jim, pioneer and expert on the study of stonewall trees in Hong Kong, there are over 500 stonewall left, some are with trees and some are not. To be exact, about 1275 trees were found on 245 stonewalls. If counted by tree family, 87.6% of them are of Moraceae, that is, the Mulberry family; and in terms of species, 50% or 637 trees are of Ficus microcarpa, which is commonly known as Chinese Banyan. Most of them can be seen in the older districts on the Hong Kong Island such as Midlevel West, Happy Valley, Sheung Wan and Kennedy Town (Jim, 2008, pp. 354–355). However, trees growing on stonewalls is not something to be taken for granted. In fact, it is an exception to the rule that seeds accidentally dispersed on stonewalls were able to survive, to germinate, and finally to become trees attached firmly on the vertical stonewalls which are not really a desirable habitat for plant growth. For example, the stonewall at Forbes Street (in Kennedy Town), in its 120 years of history, were only able to accumulate 27 semi-mature to mature trees (Jim & Frommer, 2014, p. 94).

8.1.1.2

Features and Distinctiveness of Stonewall Trees

Trees growing on stonewall is contingent on two critical conditions: first, the wall surface is penetrable; second, the roots of the trees are able to penetrate into the wall. The walls are penetrable because they were made of stones (instead of concrete) and the “numerous gaps between the stones and soil in the wall core and behind the wall (the ‘aft-soil’) offers opportunities for plant life” (Jim & Frommer, 2014, p. 56). However, though stonewalls are in principle penetrable, not many trees can make it. Ficus microcarpa or Chinese Banyan is one of the tree species whose roots can have the wall surface penetrated. No wonder they account for over 50% of the existing stonewall trees. Their ability to penetrate can be attributed to the adaptive traits they acquire in the evolutionary process. One of the exceptional traits that enable them to survive and prosper in hostile environment is to become a strangler fig, that is, “to literally strangle and kill the victim tree and take away its niche (Jim & Frommer, 2014, p. 82). The processes are as follows: first, seeds land on a host tree in the forest, attach to it, and start to grow but without doing any harm to the host; second, it tries its best to send aerial roots downwards around the trunk of the host until they reach the forest floor; third, the roots reaching floor, absorbing water and nutrients directly from soil, start to thicken and become woody through a process called lignification;

134

F. K. T. Mok

finally the thickened aerial roots surrounding the host tree fuse together (a process called self-grafting) and exert a force against the trunk of the host, hence depriving its water and nutrient supply, literally strangling it to death (Jim & Frommer, 2014, pp. 86–88). In an urban setting, the strangler fig can either grow on roadside or grip tightly onto the surface of stonewalls exactly as it does to the host trees in the wild. After landing on a stonewall, the Chinese Banyan will try its best to send aerial roots downwards to find supply and support from the ground soil just like what it does in the process of strangling a host tree; besides, other aerial roots will “turn at right angles and grow backwards through the joints between masonry blocks to reach the soil lying behind the wall (aft-soil)” (Jim & Frommer, p. 98). This dual anchorage system can explain why Chinese Banyan can grow and flourish on a non-living cliff-like vertical surface.

8.1.1.3

Challenges and Controversies

Those who show deep appreciation would probably concur with Jim in praising stonewall trees as a spontaneous “interplay between human and nature” (Jim, 1998, p. 41) or a perfect example of “nature partnering with culture in a serendipitous coalition” (Jim, 2010, p. 345). But those who consider trees living on stonewalls as a kind of mismatch may agree with Deborah Kut, a senior tree management official of the Hong Kong government, that those Chinese Banyan, being “an aggressive and invasive species,” is a potential source of risk (30th April 2018, SCMP). No matter trees are growing on roadside or on stonewall their proximity to human activities inevitably lead to two types of conflicts. First, if the trees are sturdy, healthy, and growing well, their right to develop would sooner or later clash with that of human agents. For instance, when the Mass Transit Railway Corporation of Hong Kong was planning for the construction of the West Island Line in 2007, it was found that the building of one of the stations might require the removal of 27 Chinese Banyan trees growing on stonewalls.1 Fortunately, after a series of consultation and negotiation, the location of the station was changed so that the precious trees may remain intact. Second, when the trees have become weak and vulnerable, human agents in the neighborhood tend to remove them before they fall, instead of giving them time and help to restore health. In recent years, their vulnerability is further aggravated by growing human population density, busy traffic, and the frequent torrential rain and super tropical cyclone as a result of climate change. In the last few years, the number of trees removed after inspection and assessment by the relevant government departments are 32200 (2016/17), 38100 (2017/18), and 61100 (2018/19) respectively. They are removed for various reasons such as construction works, structural issues, vegetation maintenance, or inclement weather (Development Bureau, 2019). What is more worrying is the large number of trees falling down before governmental efforts were made to remove them. Cases of individual tree failures are ranging from 171 in 2016, 342 in 2017, to 276 in 2018. And the number of people injured 1

Details of the incident see chapter 3 and 4 of Jim and Frommer (2014).

8 An Examination of the Multiple Ethical Approaches by Which …

135

as a consequence is 9 in 2016, 7 in 2017, and 20 in 2018 (ibid.). One incident in 2018 was fatal, while the rest caused only minor injuries. Most noteworthy were two stonewall tree removal cases on Bonham Road (Hong Kong) in July 2015 and May 2018. In both cases, the vulnerable trees with risks of falling and causing damage to cars and pedestrians were swiftly removed despite strong opposition by community groups and tree experts. In addressing those conflicts in tree management, we are constantly drawn to the perennial debates over the proper relationship between trees and human agents, their respective roles, rights, and responsibilities, in particular whether trees should give way to human agents or the other way round. To engage in those debates, we need to reflect on the fundamental question of how trees may be valued and defended.

8.2 Discussion 8.2.1 The Functional, Historical, and Cultural Roles of Trees 8.2.1.1

Trees as Useful Instruments

Chinese Banyan trees, no matter on roadside or attached to stonewall, are performing a number of functions beneficial to the habitat where they grow. First of all, because of their sprawling crown, Chinese Banyan is a kind of shade tree which can protect people against the tropical sun (Jim, 2006, p. 44). Besides, they serve important eco-system functions in urban areas, for example, in reducing heat island effect by transpiration, in absorbing greenhouse gas through a process called carbon sequestration, and in mitigating pollution by capturing particulate matter (PM) through their leaves and branches (ibid., pp. 46–53). Whereas in rural villages, cluster of Chinese Banyan trees may serve as fung shui woodland entrusted with the important function of protecting the villages against deforestation and biodiversity loss (ibid., pp. 78–79). The instrumental values of trees to human inhabitants are therefore quite obvious. The merits and demerits of defending trees on the basis of their usefulness are obvious. Usefulness can in principle be objectively measured and quantified. For instance, the claim that trees help to reduce greenhouse gas can be forcefully substantiated by the concrete figure that an average mature tree would be able to absorb 12 kg of carbon dioxide and release 6 kg of oxygen per year (Jim, 2006, p. 48). However, just like other useful instruments, trees cannot claim a monopoly over the useful functions they serve. Though trees are highly effective in absorbing greenhouse gas and capturing pollutants, they are constantly in competition with other living entities or non-living machinery (e.g. air purifier) in serving these functions. It follows that they can in principle be relocated or even be replaced by other instruments which can do the job equally well. What is worse, they could possibly be abandoned once the job is no longer needed. If we are concerned solely with the instrumental value of

136

F. K. T. Mok

trees, we only need to make sure that there is sufficient number of trees or greenbelt of certain size in the community, without bothering the exact locations where the trees shall be planted and without caring if a particular tree or cluster of trees shall be retained. What are needed may just be trees, a certain quantity of trees, but not necessarily the trees in our neighborhood or trees growing on stonewall.

8.2.1.2

Trees as Historical Witness

Next, we may turn to the historical role played by trees in the neighborhood. Unlike the instrumental defense, it is not to argue how trees can continue to contribute to the community but to emphasize how the trees in question have long been an integral part of the community. Those trees which have existed for a hundred years or so may be seen and respected as “senior doyens of the community” (Jim, 2006, p. 70). They have been there for so long that they can claim to be the sole living witness to the history of the community. Their continued existence as “vegetative denizens … remind the community of its past struggle with nature to win developable land [and] denote the coexistence of nature and culture” (Jim, 2008, p. 369). Apart from being a silent witness of the historical development of the community, they could in fact be seen as part of the history of the community. As Jim described, these “large Chinese Banyans serving as focal point if not the de facto town hall where people tend to gather and make important personal or communal decisions. Chinese Banyans form an integral part of our history, linking the past with the present, and project the present into the future. They are part and parcel of the community’s collective memory and experience” (Jim & Frommer, 2014, p. 82). The strength of the argument based on the historical role of trees and the concern with collective memory is that we would be able to defend not just trees in general but trees at specific locations especially those growing on stonewall. It is because not all trees are historically important or can be part of the history of a community. A tree or cluster of trees are historically important mainly because of the particular location where they grow, their intimate contact with local residents, and eventually becoming an integral part of the community. For the sake of the integrity of the community and the historical memory of the residents, we can forcefully argue why they should be preserved on the spot and why removal or relocation is a poor option. However, while it has become very appealing nowadays to talk about collective memory, we need to note the inherent problem of delimiting the scope of the collective in question. If the collective is defined very narrowly and limited to the residents2 living really close to the trees, the memory shared among the collective would likely be very strong and the historical importance of the trees to a small community would also be genuine. But some would doubt why the feelings of a small minority, no matter how genuine and intense, should override the rights and interests of members of another (probably bigger) collective comprising mainly of commuters who may need to travel or drive

2

A further complication is that really ‘local’ residents are always divided.

8 An Examination of the Multiple Ethical Approaches by Which …

137

on the road with trees but do not have the time and leisure to develop any strong feelings or solidarity with the trees.

8.2.1.3

Trees as Source of Inspiration

The third way of valuing urban trees is to focus on their constituent features which could be appreciated by a wider public, instead of only the locals who have close encounter with them or a handful of “outsiders” who have special attachment to trees. One possibility is to appeal to the cultural role and importance of trees, especially the Chinese Banyan trees on stonewall which have an exceptional ability to survive, to grow, and to sustain against all odds. The various adaptive traits they have picked up in the evolutionary process, such as the ability to strangle a victim tree and the dual anchorage system, make it possible for the Chinese Banyan to outlive the many human and non-human entities who have long been the sources of their vulnerabilities. Because of that, “Their almost legendary tenacity and life-span have earned much admiration and respect. Some people have grown up with them and developed fondness for or emotional attachment to them. It is natural for people to emulate their fine qualities and to find solace under their aegis. It is symbolic of our quest for perseverance, endurance, tolerance, health, robustness, longevity and sustainability” (Jim & Frommer, 2014, p. 82). As a symbol of perseverance, endurance, and longevity, Chinese Banyan can be valued as a source of inspiration and an exemplar of the virtues much treasured by the society. It is in this sense those Chinese Banyan, no matter those growing on road side or on stonewalls, are not only part of the history of the (local) community but also a part of the culture that can be shared by the wider society. But this defense is not without weakness. In order that people can be inspired and cultivated, we certainly need to preserve the real thing for people to watch and to feel. However, if what we need is a cultural symbol or icon, we may only need to keep certain quantity of trees so that people can feel their existence and be constantly inspired. Moreover, even if a small number of trees are relocated or even removed, the cultural role of this type of tree would not be significantly undermined. Those who were in favor of removal would probably say that taking down a few ailing trees should make no difference at all as far as the cultural role of Chinese Banyan is concerned. To recapitulate, preservation of urban trees can be justified by appealing to their roles as useful instrument, historical witness, or exemplar of virtues. Though each of them has its own limitations, when taken together they have enriched our understanding of the multiple ways by which stonewall trees may be valued. However, one fundamental critique is that these ways of valuing stonewall trees are built entirely on human-oriented standards. It is to this critique we now turn.

138

F. K. T. Mok

8.2.2 The Biocentric Perspective: Trees as Goal-Oriented Entities The above three ways by which trees are valued are liable to the charge of being anthropocentric or human-centered. Some suggest that we should move from an anthropocentric approach to a non-anthropocentric one such as the biocentric approach. This alternative approach as advocated by Paul Taylor starts with the distinction between use value, inherent value, and inherent worth. This distinction is to differentiate between three different ways by which the value of living or nonliving entities may be captured. By use value Taylor is referring to the “usefulness or commercial value” of the entity in question. An entity would have more than use value but also inherent value if they can be valued with reference to their “beauty, historical importance or cultural significance” (Taylor, 2011, pp. 73–74). But possession of inherent value is still not good enough because the value of trees would still be entirely “relative to and dependent upon someone’s valuing it.” It would also be subject to the charge of being anthropocentric because “in the absence of subjective valuing on the part of persons who value them for what they are,” that is, without someone out there who find them useful, regard them as part of their memory, or are inspired by their endurance and longevity, they would cease to be valuable (ibid., p. 74). If our concern is not limited to the particularly useful, attractive, or symbolic trees, we should be in search of a more impartial standard. The notion of “inherent worth” as coined by Paul Taylor is meant to provide such a standard. He suggests that inherent worth may be attributed to “entities that have a good of their own” (ibid., p. 75). Having a good of its own, the worth or value of an entity can be enunciated and established “regardless of any instrumental or inherent value it may have and without reference to the good of any other being” (ibid.). But what exactly is the feature or process observable in most living entities which may be identified as a good of their own? The answer suggested by Taylor is the fundamental nature common to almost all living organisms as “teleological centers of life” (ibid., p. 119). An organism may be described as a teleological center of life if “its internal functioning as well as its external activities are all goal-oriented, having the constant tendency to maintain the organism’s existence through time and to enable it successfully to perform those biological operations whereby it reproduces its kind and continually adapts to changing environmental events and conditions. It is the coherence and unity of these functions of an organism, all directed toward the realization of its good, that make it one teleological center of activity” (ibid., pp. 121–122). In claiming that an entity has inherent worth if it is in possession of a good of its own, and further recognizing that being a teleological center of life is a good in itself, Taylor is defending the position that any organism exhibiting a tendency, orientation, or goal towards survival, continued existence, and basic functioning may be accorded inherent worth. The strategy of Taylor is to define the worth or value of an entity with reference to its natural tendency to sustain itself, which is arguably the lowest common denominator of all living organisms. Instead of praising living entities out

8 An Examination of the Multiple Ethical Approaches by Which …

139

of their peculiarity or distinctiveness, he is reminding us that even as mere biological creature, simply striving for its continued existence and normal functioning, a living organism is by itself something of value. It is in this sense Taylor is calling for a biocentric approach or a biocentric outlook on nature (ibid., p. 156). Taylor’s biocentric approach has obvious merits. First, its criterion of valuation, that is, the requirement of being teleological center of life, is an impartial one, without bias towards entities particularly appealing to human interests, history, or culture. Second, it is not only impartial but also a minimal criterion. An entity only has to exhibit a goal or tendency toward survival, continued existence, and basic functioning in order to be deemed valuable. This biocentric approach is therefore an inclusive one in that most living entities would be eligible for conferment of value. The attractiveness of this approach is that even if those Chinese Banyan trees (on roadside or on stonewall) are abstracted from the instrumental, historical, or cultural roles that may be attached to them, and are reduced to trees as such, simply because of their exceptional ability to adapt and to endure, they would easily stand out as a prominent teleological centers of life, and have their inherent worth firmly established. In virtue of their possession of inherent worth, trees in general (and stonewalls in particular) may claim that they are equal to other living entities in at least one important aspect and they can defend themselves against any claims found on human superiority (ibid., p. 129). And according to Taylor, two moral judgments may follow from this denial of human superiority: (i) the entity concerned deserves “moral concern and consideration”; (ii) “moral agents have a prima facie duty to promote or preserve the entity’s good as an end in itself” (ibid., p. 75). As an interim conclusion, the strength of the biocentric approach as advocated by Paul Taylor is to provide a nonanthropocentric account of the moral value or worth of trees, which may then justify why urban trees deserve moral consideration and why human agents have a prima facie duty to preserve them.

8.2.2.1

The Real and Apparent Meaning of the Principle of Self-Defense

Those who are strongly committed to the preservation of stonewall trees against removal would not be contented with establishing the inherent worth of trees or justifying a prima facie duty to preserve. What they would be looking for is an argument that can specify clearly and authoritatively the rights to be enjoyed by trees and the corresponding obligations to be taken up by other moral agents, especially when the interests of trees and that of humans in the community are in conflict. Taylor would probably say that his biocentric approach is meant to provide exactly such principles. First of all, he is well aware of the potential “clash between nature and civilization” (ibid., p. 257). Being teleological centers of life, both human and nonhuman living entities would strive to grow and sustain, eventually their paths would cross and enter into some kind of competition or even conflict. Endowed with equal inherent worth, no one is inherently superior to another, both trees and humans would be equally legitimate to pursue their goal-orientated activities, and they could make

140

F. K. T. Mok

equally strong claims over spaces and resources vital to their continuing existence. To address the “competing moral claims,” (ibid., p. 259) Taylor suggests that we may consult five priority principles: principle of self-defense; principle of proportionality; principle of minimum wrong; principle of distributive; and principle of restitutive justice (ibid., p. 261). In the following, I will examine the usefulness of the principle of self-defense, the seemingly least demanding principle. As mentioned above, those who favor biocentrism would appreciate its impartiality and generosity in assigning equal inherent worth to living entities. But there are others who would worry about its (i) demandingness and (ii) the adversarial relationship between individual entities that it presupposes. So, the first question is whether or not a prima facie duty to preserve, entailed by the possession of inherent worth, would call for a “level of attention and care far beyond the abilities of most people” (Desjardins, 2006, p. 142)? At a first glance, the biocentric approach, no matter the original version advocated by Paul Taylor or the revised version later developed by James Sterba, is not demanding. First of all, they prescribe mainly negative duty but not positive duty for human beings. Out of a respect of individual entities with inherent worth, human beings are not obliged to perform positive duties of care and concern to the non-human living organisms such as animals and plants. Instead, most human obligations derived from the biocentric approach are negative in nature, calling upon human beings to exercise restraints in dealing with other living entities, and calling for non-interference so that those entities can “be left alone in pursuit of their good” (Desjardins, 2006, p. 144). At the same time, it confers human beings the right to defend themselves against danger posed by other living entities. Including in Taylor’s biocentric approach is a Principle of Self-defense: it is permissible for moral agents to protect themselves against dangerous or harmful organisms by destroying them. … only when moral agents, using reasonable care, cannot avoid being exposed to such organisms and cannot prevent them from doing serious damage to the environmental conditions that make it possible for moral agents to exist and function as moral agents. … There must be no available alternative that is known to be equally effective but to cause less harm to the ‘attacking’ organisms. (Taylor, 2011, pp. 264–265)

Next, let us imagine how stakeholders in a conflict of rights between stonewall trees and human inhabitants (on Bonham Road for example) would react to the allocation of rights and obligations entailed by the biocentric approach. Those who are in favor of removal would have no complaint in subscribing to the duty to leave the trees alone as long as they can keep the right to defend themselves when the trees become a source of grave danger. Those who are in favor of preservation would certainly endorse the duty of non-interference. But when it comes to the point where the vulnerable trees have really become a serious threat to human lives, it would be hard for them to deny human beings a right to defend themselves and to have the threats eliminated. If it is the case, the biocentric approach does not seem to be too harsh on trees or too demanding to human agents. However, the conclusion will be entirely different if we read the principle of self-defense carefully. The first thing to note is that the right to defend oneself is not automatically warranted on the sole condition that the human agent concerned believe that he or she is in grave danger. The right to defend of course presupposes

8 An Examination of the Multiple Ethical Approaches by Which …

141

that there are dangerous or harmful conditions against which the agent would want to defend. But the agent is permitted to invoke the right by aggressing against the organism causing harm (even to the point of destroying it) “only when moral agents, using reasonable care, cannot avoid being exposed to such organisms” (ibid.). In other words, the presence of harm as felt by the agent is only a necessary but not a sufficient condition. If the agent, “using reasonable care,” could distance themselves from the scene, thereby “avoid being exposed” to the harmful scenario or the organisms causing harm, he or she would have no need and no ground to exercise the right to defend. If we could contemplate the idea that in the presence of danger, human agents may defend themselves by staying away from trees rather than eliminating it right away, there will be a much bigger room for maneuver. Apart from the strategy of elimination, as witnessed in the two stonewall trees removal incidents on Bonham Road mentioned before, there are several alternative options along this line of thought. Human stakeholders can first of all “avoid being exposed” to danger by sealing off the entire Bonham Road for a brief period of time, say, a week, so that rigorous maintenance work could be done. To go further, we may consider blocking part of the road, for example, by restricting the traffic to one-way only, so that vehicles (and the passengers on them) can permanently keep a reasonable distance from the vulnerable trees. These would certainly be regarded as not feasible by government departments and road users because of the substantial costs in terms of time and convenience. Road users in particular may complain about the demanding burden to be placed on them. However, what cannot be denied is that the demanding, but not at all absurd, requirements are dictated by the principle of self-defense, according to which reasonable attempts to avoid exposure to harm is a prerequisite to eventual exercise of the right to eliminate the harm.

8.2.2.2

Who Is Going to Defend Against Whom?

Before we go on to consider the validity of the possible complaint made by human agents, we may note that stonewall trees could also have their complaints too. The very first thing they might want to complain is that we should be talking more about how trees should defend themselves against ever increasing human aggressions than how human road users should defend themselves against threats posed by ailing trees. That is a legitimate complaint. If I were the trees, I would also want to remind people of the vulnerable conditions inflicted on stonewall trees by human beings in the last few decades, rather than the final moments when the vulnerable trees were about to fall down and causing human casualties. Focusing on the latter would naturally prompt us to conceive vulnerable trees as dangerous organisms and to assert our right to eliminate them. However, if we could see things with a longer timeframe, we would understand that it is human beings who have long been aggressing against the basic interests of stonewall trees, blocking their natural growth, and posing a threat to their very survival. Then, we should be able to recognize that trees are anything but dangerous, they became a source of threat because we made them so

142

F. K. T. Mok

by, for example, inserting high rise buildings adjacent to them, paving concrete roads right on the soil meant to support them, and walking and driving close to them. If we could acknowledge our contribution to their vulnerability, we would not blame them for being vulnerable, instead we would feel obliged to stay away from them when they become weak and vulnerable, to give them a break, and to allow them adequate time and space to recuperate. If there are anybody to blame, human beings are to blame for intruding into the territory of the trees, doing a lot of harm to the habitat, eventually making them vulnerable, and finally leading to the suffering of human. Instead of complaining about the inconveniences they may now have to endure, human inhabitants should regret that in the past they failed to exercise enough restraint on themselves before, did not have genuine respect for the inherent worth of trees, and were reluctant to keep a reasonable distance from them. By now we should be able to see that the principle of self-defense is not only defending human agents but also non-human living entities. The purpose of Taylor is not only to specify the conditions under which human agents may exercise their right to eliminate dangerous organisms. In my opinion, his most valuable insight is that in most of the time human beings “can avoid being exposed to” danger, thereby having no need to defend themselves or to assert the right to eliminate others, as long as they are willing to keep a safe distance from other living organisms in the first place. Endowed with inherent worth, all living entities are equally legitimate to sustain, to grow, and to extend their territory. They have no reason or incentives to restrain themselves. When the continued existence of two parties are mutually exclusive, like the trees on road side and the road users, both parties would tend to be defensive, trying to accuse the other party of posing an immediate threat or being a “dangerous organism,” so that one may claim the right to defend or at least the right to be left alone, and call upon the other party to back off. To some defenders of trees, the biocentric approach represents a good progress because it can provide a non-anthropocentric ground for trees to defend themselves against human aggression. The interests of trees may not always prevail in fighting against human agents, but endowed with inherent worth and the right to self-defense, they would at least be able to bid for more space and to keep a relatively safe distance away from human activities. To what extent it is really desirable depends on whether we want to conceive the relationship between trees and human agents as an adversarial one.

8.2.3 The Holistic Turn: Trees as Part of the Ecological Whole There is a criticism that all the approaches considered above are flawed because they are individualistic. According to this view, what matters most, and matter ultimately, is the value of the ecological whole or the biotic community, but not the worth of the individual organisms making up the community. What is to be examined is first

8 An Examination of the Multiple Ethical Approaches by Which …

143

and foremost how individual entities contribute or undermine the well-being of the whole, but not the relative value or priority between individual entities. It is therefore a waste of time to concentrate on the balance of the right of one entity against the corresponding duty of another. The talk of rights and obligations is rejected for its being individualistic. The way out is to take a holistic turn, that is, to conceive the preservation of the ecological whole, rather than its constituent parts, as the overarching goal. One version of holism is the Land Ethic of Aldo Leopold. In this seminal work, he argued that “right and wrong are a function of the well-being of the community, not its constituent members” (Desjardins, 2006, p. 184). The boundary of the community he has in mind includes “soils, waters, plants, and animals, or collectively: the land” (Leopold, 1989, p. 239). In dealing with the “predatory mammals,” “fish-eating birds,” and “species of trees” (ibid., pp. 241–242) within a certain boundary of land, the individualists would treat them as ends-in-themselves and try to defend their individual rights. Whereas the holists would conceive them as individual parts playing either positive or negative roles in an ecological whole. An individual part or entity would be preserved if “it tends to preserve the integrity, stability, and beauty of the biotic community” (ibid., p. 247). The corollary is that if the continued existence of an entity is contrary to this overriding goal, its sacrifice or elimination would be warranted. In taking the holistic turn, we would still assign value to individual entities, but would ascribe higher value to the biotic community. For the sake of the integrity, stability, or beauty of the biotic community, the “ethical consideration of its individual members [can be] preempted” (Callicott, 1987, p. 254). That is why it would be wrong for the “federal fish and wildlife agency, in the interest of individual animal welfare, to permit populations of deer, rabbits, feral burros, or whatever to increase unchecked” (ibid., p. 253) if the growing number of individual animal would upset the equilibrium of the biotic community. What is more, it would be deemed right for the regulatory agency to do something deliberate to reduce the size of certain animal species. The reintroduction of wolves by the U.S. Fish and Wildlife Service to Yellowstone National Park in mid-1990s to check the population of deer and elk was a classic example (Desjardin, 2006, pp. 176–178). As a matter of practice, it might have worked for Yellowstone. But as a matter of principle, a theory affirming that the ethical consideration of the whole shall always override that of an individual entity would be liable to the charge of being “draconian” (Callicott, 1987, p. 258) or becoming a kind of “environmental fascism” (Regan, 1983, pp. 361–362). Behind the criticism are two related questions: first, should we take for granted the notion of the good of the ecological whole or biotic community? Is the “integrity, stability, and beauty” of a collective entity really intelligible and identifiable? Second, even if value may aptly be ascribed to a collective, should we readily accept a hierarchy of values prescribing that the value of individual entities is necessarily inferior to that of the collective? Admittedly, it is never easy to define the good or the equilibrium point of a collective. However, if we can agree to the nature or the destiny (as National Park, Country Park, amusement park, or theme park) of a collective, we can at least suggest

144

F. K. T. Mok

a reference point or baseline against which its equilibrium is to be assessed. Without such a baseline, we would not be able to tell who has been upsetting the balance and what it takes to restore the equilibrium. In the case of Yellowstone, it is possible (though not without controversy) to talk about its “integrity, stability, and beauty” if there is a general consensus in declaring this enormous piece of land stretching across several states of America as a National Park. Notwithstanding the endless debates over what to do with National Park or how it is going to be managed, we know roughly what it takes for such a park area to retain equilibrium. In very general terms, it would require the following: human agents should give way to wildlife but not the other way round; biodiversity is to be cherished and promoted as much as possible; and there should be a balanced predator–prey relationship between different species so that no species flourish to the point of overpopulation while another suffer from the risk of extinction. If the Yellowstone area is meant to be a National Park where species diversity is an integral element, we may have a good reason to take 1920s as the reference point. It is because the near extinction of “predators” such as bears, wolves, and coyote was resulted from the policies introduced by the government in 1920s to train and to pay hunters to take down animals regarded as predators. It is against this background the reintroduction of wolves in mid-1990s can be seen as countering the imbalance lasting for several decades, trying to bring back diversity, and restoring the park to an equilibrium position comparable to the pre-1920s era. Hong Kong is of course no comparison with Yellowstone in terms of size, species diversity, and ecological value. But the case of urban trees is no less complicated. Before we try to adopt a holistic approach, we need to know how the “whole” or the “community” in question is to be defined and understood. Without capturing the nature and character of the particular whole we are concerning with, there is no way we could judge if an individual entity would enhance or undermine its “integrity, stability, and beauty.” But how should we describe and understand the nature of the wider community accommodating the urban trees? For the purpose of illustration, we may again use the vulnerable Chinese Banyan trees growing on stonewall along Bonham Road of the Hong Kong Island as an example. The neighborhood where those trees reside is a part of the Central and Western District (CWD), one of the 18 administrative districts of Hong Kong. We may well take CWD as the whole of which the trees and other individual entities are a part, but how should we understand the nature and character of this district as a whole? We may start with some facts about the CWD. It is an exceedingly small place with only 12.5 square kilometer big. But it is home to a staggering population of 243,266 people. In addition to busy roads, high-rise (commercial and residential) buildings and shopping malls, there are also one comprehensive university (the University of Hong Kong), 15 secondary schools, 27 primary schools, and a few city parks in the district. Based on what we see today, we would naturally define the CWD is an essentially urban area meant to facilitate human endeavors in education, commerce, and above all, home-building. Though we may agree that plants, animals, river streams, and mountain trails are also part of CWD, we have long taken the urban nature of the community for granted. Taking this as the reference point, no wonder the Chinese Banyan trees that never fail to survive and thrive in the tiny spaces unoccupied

8 An Examination of the Multiple Ethical Approaches by Which …

145

by human agents were regarded by some government officials as “aggressive and invasive species” (30th April 2018, SCMP). In fact, any growth and development of plants and animals not planned or coordinated by human (governmental) agents are often susceptible to the charge of upsetting the equilibrium of the community. If we take a holistic turn, removal of the stonewall trees on Bonham Road may be justified by the well-being of a robust and vibrant community whose equilibrium would be upset by fallen trees. While it is not difficult to convince people that some trees should better be removed before they fall down, it is far less easy to justify that the status quo be taken as the baseline. It is because the status quo of a community, in particular its orientation and character, is largely a product of decades and even centuries of human efforts and activities. If we take it as the baseline by which the well-being and equilibrium of the community is to be assessed, it would be severely biased towards the path of development dictated mainly by human agents. Unless we are committed to naked anthropocentrism, we should be able to see that the status quo, after so many years of overdevelopment and even destruction by human agents, is very much a product of imbalance and a manifestation of disequilibrium. Once we are liberated from the status quo as the default reference point, we should be free to consider at least two alternatives. The first alternative is that stonewall trees may by all means be considered as part of a bigger biotic community comprising not only the relatively small and urban CWD but also the beaches, hills, and most importantly the country parks adjacent to CWD. Considering that the division of Hong Kong into 18 administrative districts is purely arbitrary, it is entirely possible to redraw the boundary so that stonewall trees may be seen as located at the fringe of a country park instead of at the heart of the city center. If the boundary of the community could be redefined this way, the individual stonewall trees within this community would certainly not be regarded as invasive, and their propagation would likely be seen as facilitating but not upsetting the equilibrium of the community. However, some may protest that this redefinition, though creative, is equally arbitrary. As we are talking about stonewall trees but not trees or Chinese Banyan trees as such, we have to bear in mind that the trees at stake are attached to stonewalls which were originally built for the sake of urban development. As a result, their value is not to be assessed in complete isolation with the urban context and the historical linkage that account for their peculiarity, as if they were just another row of trees in a country park. But it does not mean that we need to go back to the status quo. Even if stonewall trees should be valued as part of a community with substantive urban element like the CWD, we do not need to use the current CWD, which has already been overwhelmed by human development, as the baseline. There is a second alternative suggesting that the baseline may be set at a much earlier date when the stonewalls were first built in the late nineteenth century or the early twentieth century. At that time, stonewall trees were expected to live with the moderate urban development in CWD but without being completely marginalized by the ever-expanding human activities. According to this baseline, equilibrium is to be restored by human agents retreating a great deal from stonewalls, and human activities keeping a comfortable distance from the

146

F. K. T. Mok

trees, rather than removing the stonewall trees that seem to block the way of human development. Now it is pretty clear that the scope of the “whole” or the “community” in question can be bigger or smaller, the point of equilibrium we set as the baseline can be closer or farther away from the present. In shifting the reference point by which an individual entity is judged, the importance of this entity to the “whole” would be entirely different, and the decision made could be changed from elimination to preservation. The alleged merit of the holistic approach is that by appealing to the notion of the greater good of the whole which is supposed to be non-anthropocentric, we may be free from the anthropocentric bias in judging the relative good (or relative weight of the rights) between human agents and non-human organisms. But in the absence of a completely impartial or self-evident understanding of the (scope and nature of the) whole, we would soon find ourselves going into another, if not bigger, trouble of judging between competing ways to define the boundary and nature of the whole, and the multiple baselines by which the point of equilibrium is set. The choice of baseline, together with the understanding of integrity, stability, equilibrium it entails, is equally, if not more, arbitrary and biased. In a way, the holistic approach has created a problem bigger than the one it is committed to solve.

8.2.4 The Daoist Turn: Defending by not Contending We have just seen how urban trees, as individual entities, may be defended as an instrument or as an end-in-itself; and how it may defend its importance as part of a bigger collective entity. As shown above, these various lines of defense have their own merits and limitations. However, they have one thing in common: they are all trying to “defend” the continued existence of trees as against that of other individual or collective entities. In so doing, they all try to claim their due and strive for their rights and well-being as against others. Such a mentality of contending one’s value, importance, or interests would, according to the Daoists,3 necessarily invite competitions and bred irresolvable conflicts. The best way, indeed, the only way, of achieving harmony, they argue, is to subscribe to the notion of defending by not contending. In this final section, I will assess the merit of this Daoist turn.

8.2.4.1

The Futility of Making Normative Distinctions

First of all, the Daoist would say that we need not be too eager in defending our fair share or legitimate interests. It is because normative distinctions between fair and unfair, good and bad, or desirable and undesirable, are very often misleading, if not exactly mistaken. Out of a belief in the alternation of good and bad, the Daoist 3

Daoism or Taoism includes mainly the ideas compiled in the books commonly known as Laozi and Zhuangzi.

8 An Examination of the Multiple Ethical Approaches by Which …

147

would deny that there is ultimate fairness and goodness: things deemed to be fair would turn out to be unfair; state of affairs believed to be good would eventually become miserable. As stated in chapter 58 of Laozi: “Calamity is that upon which happiness depends; Happiness is that in which calamity is latent. Who knows when the limit will be reached? Is there no correctness (used to govern the world?) Then the correct again becomes the perverse. And the good will again become evil” (Chan, 1969, p. 167). The phenomenon of the alternation of good and bad is, according to Hans-Georg Moeller, best captured by “the story of an old man at the fort who lost his horse” in Huainanzi. The old man first suffered from the loss of horse, then benefited from having the extra horses coming home with the lost horse; later the son of the old man broke his leg in falling from one of the horses, but because of the broken leg his son had the good luck of not being drafted to fight in the battle (Moeller, 2006, p. 99). The lesson of this story is that bad luck breeds good luck and the vice versa. It is therefore hard to tell which is a better or a worse state of affair. Besides, the “course of Dao,” as manifested in the ever-changing situations encountered by the old man is “one of reversal, situations turn around and change into their opposites” (ibid., p. 102). It follows that there is no need to insist on getting what we believe to be good, right, or fair at a particular point of time. Given that things in the world are uncertain and eternally changing, the Daoist sage find it most sensible to react with “indifference” and “ignorance,” and to refrain from making moral judgment (ibid., pp. 100–101). To be indifferent and ignorant is not exactly to care and know nothing, it is just not “being one-sidedly attached to a singular element” (ibid., p. 102). It is because we know that one state of affair and its opposite are equally parts of nature; their concomitance and alternation are in fact constitutive of the Dao or the Way of the world. In the words of Lin Yu-tang, a writer who made great efforts in popularizing ancient Chinese philosophy for the American readers, “Growth alternates with decay, fullness with exhaustion, darkness with light. … Life comes from a source and death is but a return to it. Thus, beginning follows the end in a continuous endless cycle” (Lin, 1978, p. 13). If so, we have no reason to be overjoyed in seeing growth, fullness, and light; and neither do we need to feel depressed when we come across decay, exhaustion, and darkness. And the least sensible thing to do is to jump to the conclusion that growth and fullness are necessarily morally superior to decay and exhaustion. To see things in a detached way is what the Daoist sage would call impartiality. In taking a Daoist turn, we may still pay attention to trees in the neighborhood, but we do not need to take their flourishing or deterioration at a particular moment of time too seriously. It is because from a Daoist perspective, these two states of affair may just be two inseparable sides of the same coin. There is no way we can have one without the other; nor is there a point of preferring one to another. As witnessed in the trees removal incidents on Bonham Road mentioned above, though almost all the branches and the upper half of the tree trunks were cut, in just a few years’ time after removal, all four trees have completely resurrected and managed to grow again

148

F. K. T. Mok

in a healthy and robust manner.4 It clearly shows that we need not be preoccupied with what happens to an individual entity at a particular point of time. There is no need to jump to conclusion that it is desirable or undesirable. What appeared to be good or bad may turn out to be not as good or bad as it seemed. Perhaps all we need to do is to be patient, without trying to do or to judge, and let nature works its way. If eventually we could be free from the bounds of normal human dimensions of space and time, we would be able to appreciate the somewhat provocative Daoist saying that “Heaven and Earth are not humane (jen5 )” (Chan, 1969, p. 141). It is certainly not to say that things in the world are bound to be inhumane or we are contented with things being inhumane. According to Chan Wing-Tsit, the philosopher who provided the translation, it means that “Heaven and Earth are impartial, have no favorites, and are not humane in a deliberate or artificial way” (Chan, 1969, p. 142). In declaring that “Heaven and Earth are not humane,” the Daoist sage is suggesting that we should go beyond the usual moral distinction between humane and inhumane. Instead of trying to shape or to judge things according to our standards of good and bad, we had better be impartial to good or bad state of affairs which are more apparent than real and are bound to be ever-changing. So, why not keep calm, stop intervene and let nature do its job? As human agents, we are eager to judge and to respond promptly because we are accustomed to the notion that justice delayed is justice denied. However, if we could be liberated from the usual parameters in conceiving things so that stonewall tree, for example, is just one tiny element among the myriad things in nature, and their flourishing or decay at any one time is but a transitory moment in an almost infinite span of time, we would be able to see that their continued existence or temporary disappearance is of no significance. It is therefore unnecessary to judge what happened at a particular moment as just or unjust. In persuading us to stop imposing our moral standards on things in the world, and refrain from judging them as just or unjust by essentially human perspectives, Daoism may be seen as an archetype of non-anthropocentrism. It can claim to be free from human bias in two ways: first, it questions the validity of normative distinctions humans find important by appealing to the constant alternation between the good and the bad, and the observation that the good always turns out to be bad and the vice versa; second, it questions the fruitfulness of the human tendency to distinguish, to judge, and above all, to see that justice is done. Even if some of our beloved Chinese Banyan trees are all gone, and the grossly aggressive human activities advance further to take up the territories left by the trees, we should be confident of the alternation of good and bad and could reasonably expect that human aggression would sooner or later meet their demise as a result of excessive and unhealthy growth, and it is just a matter of time those exceptionally tough Chinese Banyan trees would return, take advantage 4

For details, see report (in Chinese) at https://hk.on.cc/hk/bkn/cnt/news/20200517/bkn-202005172 01431156-0517_00822_001.html. 5 The notion of jen (usually translated as being humane or compassionate) is a key concept in classical Confucianism (especially in The Analects and Mencius) according to which jen is the defining mark of human beings. Confucians are of the view that to be compassionate is something innate to human beings rather than an external moral requirement.

8 An Examination of the Multiple Ethical Approaches by Which …

149

of their intricate rooting system, and grow against all odds in the ruins left by human beings. If we have confidence in the Dao, we may really let go of almost everything in the world, and hence no longer find it urgent to judge and to shape the world according to our own moral order. Once we recognize that things in the world may be following their own rules and order which are beyond human comprehension and judgment, we may feel entirely legitimate to be indifferent and thereby attain a state of calm and serenity as a prize of being non-anthropocentric. While there is a prize to claim, there is also a price to pay. The price is perhaps the suppression, if not elimination, of our innate moral sense when we come across signs of life and death, good and bad, virtue and vices. As noted above, we may claim the prize of calm and serenity if we could see things from a perspective so detached from the (normal functioning in a) human community and through a timeframe which is far longer than the normal lifespan of most living entities. But in seeing things in an exceedingly long run, longer than decades and as long as centuries and even millennium, nothing matters, and nothing would seem to be a problem. Eventually, we would habitually shut down our moral senses and stop exercising our moral faculties. The state of calm and serenity would thus be attained, but at the price that moral agents have become insensitive and indifferent to entities within the bounds of their moral concern. However, the Daoist would surely say that it is not a price at all. Their reasoning is that we feel bad about moral insensitivity because we cannot get rid of our sense of superiority and are still preoccupied with the idea that it is a big deal for human beings to acquire the status of moral agents, to possess moral faculties, and ready to make moral judgments. In the final analysis, to take the Daoist turn is to be humble, to get rid of our usual human pride, and to fully embrace the essentially non-anthropocentric notion that nature, the earth, or the world (and the rights of its constituent entities) are not necessarily there for human agents to feel, care, and judge.

8.2.4.2

The Futility of Contention

With humility as its prime concern, Daoist would suggest us to exercise restraint and to refrain from judging and shaping things of the world. However, the teachings of Daoism are not entirely passive and indifferent. Just the opposite, it has something positive and concrete to offer. When the preservation of a living entity is at stake, Daoist would not be entirely indifferent to its continued existence and advise it to wait passively and count on its good luck (as good luck always alternate with bad luck). While agreeing that preservation is a legitimate concern, Daoist has a seemingly contradictory suggestion to make: if you care about your own preservation, you better not take it seriously. In accounting for the eternal existence of Heaven and Earth, Laozi explains that “Heaven is eternal and Earth everlasting. They can be eternal and everlasting because they do not exist for themselves. And for this reason can exist forever” (Chapter 7 of Laozi, in Chan, 1969, p. 142). “Not exist for themselves,” according to Wu Yi, is not to strive for their existence or not to live for their own interests (Wu, 1994, pp. 42–43). The importance of not consciously

150

F. K. T. Mok

caring and defending one’s rights and interests is that “Should they live for their own interests, they would struggle with other entities. As they do not live for their own interests, the other entities relate back to them” (Wang Bi’s commentary on the Laozi, trans. Wagner, 2003, pp. 140–141). The Daoist reasoning is that if you want to be everlasting like heaven and earth, you better not emphasize your own self and not defend your own interests explicitly, otherwise you would induce conflict or even antagonism; if you could act as if you had forgotten your “self” and had put aside “your own interests,” others would pay no attention to you and your continued existence would be guaranteed. This reasoning is further strengthened in chapter 22 of Laozi by advocating the spirit of yielding: “To yield is to be preserved whole. To be bent is to become straight. … It is precisely because he does not compete that the world cannot compete with him” (Chan, 1969, p. 151). To launch a bold defense of one’s interests is often futile, if not counter-productive, because it would invite counterclaims from competing parties. In contrast, if you yield to other stakeholders, instead of trying to show off, to stand out, or to defend yourself, they would not be alerted, would not treat you as rivals, and would not bother to compete with you; hence your existence would not be endangered. The following story from Zhuangzi can best illustrate the power of yielding: A carpenter named Shih was on his way to the Ch’i state. There he saw a big and prosperous chestnut-leaved oak. His disciple asked the master why he paid no attention to such a marvelous tree. The carpenter responded as follows: “It’s defective wood. A boat made from it would sink. A coffin made from it would rot right away. An implement made from it would break right away. A door made from it would exude resin. A pillar made from it would soon be grub-infested. This tree is worthless. There is nothing you can make from it. That’s why it could grow to be so old.” (Zhuangzi, chapter 4 ‘The Human World,’ section 4, trans. Mair, 1998, p. 37)

The lesson of this story is that by not appealing to one’s usefulness, not trying to justify one’s own interest, or simply being seen as useless, the prosperous oak is acting in line with the spirit of yielding or non-contention, which has proved to be critical to its continued existence. From this example, we can see that caring for one’s preservation but not taking one’s self (interests) seriously is not contradictory at all. Next, let me consider two possible queries about the spirit of yielding: (i) there is a tension in Daoism between the impartial attitude and the spirit of yielding: the former is reminding us the futility of normative distinction while the latter is stressing the preferability of one course of action (or inaction) to another; which of these two elements of Daoism should be considered more fundamental? (ii) how should we apply the principle of yielding? When there is a conflict of rights or interests between trees and human agents, who should be expected to yield? First, regarding the potential tension between impartiality and yielding, the text of Laozi does not really say which should be accorded higher priority. Instead of arguing which one may override the other, I try to suggest that the tension is more apparent than real. Without doubt, given that things in the world are very often going against nature and not in a state of equilibrium, it is inevitable that they will be in a state of flux, with constant changes and reversal, so that what appeared to be good (or

8 An Examination of the Multiple Ethical Approaches by Which …

151

bad) may turn out to be bad (or good). Because of the alternation between good and bad, the Daoist find it hard and meaningless to distinguish between the desirable and undesirable state of affairs. As in the case of removing vulnerable stonewall trees, the Daoist would probably say that it is too early to judge that it is bad because the excessive expansion of human activities made possible by the disappearance of trees would eventually lead to the ruin of human community, which would in turn make greater room for the rebirth of trees. Such kind of constant reversal and alternation may be inevitable in an imperfect world. However, it does not mean that the Daoist find it necessary for (human and non-human) entities in the world to go through or to suffer from the strenuous experiences of alternation of good and bad or the reversal from good to bad. It is entirely possible for the Daoist to contemplate and to advocate a better scenario in which an entity would realize the futility of contention and appreciate the importance of yielding from day one, so that it would not go into excess or go against nature, and the chance of it suffering from reversal is greatly reduced. If so understood, the two different elements of Daoism are not prescribing divergent solutions for the same scenario and are therefore not in tension. In fact, they are suggesting different response to divergent scenarios. In most of the time, when we are in an imperfect world, we are advised to be impartial and refrain from casting judgment on a certain state of affair, lest nature would restore the balance by having a great reversal. But Daoist are not forever pessimistic. They can envisage a better, if not exactly perfect, world where entities are less preoccupied with their self (interests) and more accommodating to the spirit of yielding so that alternation would not be too frequent, and reversal would not be too drastic. Second, what are the implications of the Daoist principle of yielding and noncontention for the preservation of trees? In general, the Daoist principle of yielding should apply to all parties. The best scenario is of course that all stakeholders, upon realizing the futility of contention, withdraw from fight and defense, and forgetting that they have stakes. However, in the case of urban trees, it is critical to ask whether the trees or the human agents should be expected to comply with the principle of yielding. In light of the example of the prosperous oak in Zhuangzi, shall we argue that the interests of urban trees would likewise be promoted if they do not strive for their existence and yield to the human stakeholders competing with them? Those who care for stonewall trees would certainly protest. They would argue that there is already no room for stonewall and the trees attached to them to yield further because they have long been suffering from human exploitations. Besides, if we look at other chapters of Laozi (see chapter 66 and 68 of Laozi in Chan, 1969, pp. 171–172) we will note that the principle of non-contention and the virtue of not-competing are recommended mainly for kings, sages, conquerors, and those leading troops, rather than ordinary people. When two parties are in conflict, Daoist would certainly expect the aggressive and dominating party, instead of the weak and vulnerable, to yield, to exercise restraint, or to withdraw. Human agents should yield to trees because, more often than not, the former have powers, and hence a greater propensity of going against nature and eventually meeting their demise. But there is a possibility that the power relationship between human agents and urban trees can be reversed so that the former is the weaker party and under the threat of the later. For instance, the

152

F. K. T. Mok

passers-by or vehicle drivers that would be harmed by the strong but fragile trees about to fall may think that they are the “vulnerable” ones and it is the “dangerous” trees but not themselves who should be expected to yield and retreat. However, as suggested in previous discussions over the right to self-defense, human agents could easily neutralize this unfavorable power relationship by retreating and keeping a safe distance from the “dangerous” trees. Besides, the trees can rebut that they may be fragile but not by nature dangerous; it is the persistent human interventions and aggressions against their living space that made them vulnerable and dangerous. If human agents could yield and exercise proper restraint in the first place, no such dangerous scenario would be created. In taking a Daoist turn, human agents would be able to see that their superiority over trees may just be an illusion and this superiority, if true, may pave the way for the eventual deterioration of the ever-expanding human community. Besides, they would know that it is pointless to contend or to defend themselves against trees in the neighborhood; instead, the rows of trees may be seen as setting a much-needed boundary for the healthy and sustainable development of human activities. More importantly, that human inhabitants giving way to trees is not to be seen as a smart strategy of accepting a little setback in exchange for a bigger return in future. Not to exhaust every space we can find, and to leave enough space for others, may turn out to be most conducive to the sustainability of human societies. To the Daoist, what matters most is to be able to understand the futility of maximization, to conceive non-competition as a virtue (see chapter 68 of Laozi, in Chan, 1969, p. 172), to cultivate a respect for the natural limits, and to curb the constant urge to chase for unlimited growth. If the language of rights has the tendency to drive us to be ever more assertive and competitive in defending our interests, the wisdom of Daoism is to remind us of the merit of humility, non-contention, and yielding which turn out to be an even better guarantee of our long-term rights and interests.

8.3 Conclusion Now, we can take stock of the following: (i) the biocentric approach, by invoking the notion of equal inherent worth, can justify a right to self-defense for all parties; however it may trigger an adversarial mentality which tend to see others as rivals or sources of threat; (ii) the holistic approach is ambitious in that it tries to reconcile the conflicting interests among individual entities by shifting our attention to the good of a bigger collective or community; however, human agents, in setting the baseline and in defining the proper scope of the community, are still subject to the charge of being human-centered; (iii) in taking a Daoist turn, human inhabitants are somewhat relieved from the burden of judging between the good and the bad (or the right and wrong); in seeing things with a broader timeframe, without preoccupied with things happen at a particular moment, we may come to think that not many things matter and thereby feel a sense of serenity; however, Daoist is not entirely passive; it is not at all indifferent to the suffering of the weak and the vulnerable; on the contrary, it

8 An Examination of the Multiple Ethical Approaches by Which …

153

warns the powerful not to go too far and remind them the importance of yielding if they care for their long-term preservation. Among the three approaches examined, the Daoist approach is most able to claim to be non-anthropocentric: it not only advises against assertive exercise of human rights and well-being, it also questions the merits of casting normative judgment on (temporary) state of affairs by using norms inevitably constructed by human agents. Basically, it is a caution against the (human) tendency to judge and the eagerness to contend and to fight. This Daoist tendency against judging and contending may sometimes appear to be too general and too negative to provide concrete suggestions. However, in the case of stonewall trees, especially in the incident of cutting down stonewall trees on Bonham Road (as discussed above), the Daoist approach may provide novel ideas and solutions to parties defending the trees as well as those competing with the trees. If all stakeholders can appreciate the importance of “not exist for themselves” and can therefore be “eternal and everlasting” (Chapter 7 of Laozi, in Chan, 1969, p. 142), no party would insist that a particular state of affair (either cutting down the trees or preserving the trees) is the solely correct one. To the human inhabitants in the neighborhood who are concerned with the risk of trees falling down, the Daoist approach would persuade them not to view the vulnerable trees as competitors or sources of threats. Instead, they would be invited to consider alternatively that living with the trees rather than taking advantage of their vulnerability may be most conducive to the long-term preservation and well-being of human community. To the individuals and organizations fighting for the interests of stonewall trees, a little dose of Daoist wisdom may also be useful. If they could appreciate the idea that “Calamity is that upon which happiness depends” (Laozi, ch. 58), they would not be too fixated to the right or wrong of the preservation or removal of a particular tree at a particular moment. When the stonewall trees on Bonham Road (in 2018) were extremely fragile and ready to fall, it might not be a bad thing if the branches were cut so that the balance of the trees would not deteriorate. As long as the roots and the trunks remain intact, we can see that in two years’ time, the stonewall trees whose branches were cut have returned almost to their original shape. From the Daoist perspective, the original cuts do not represent a sacrifice or a loss in competition with humans, it may be seen as a resurrection after partial death. Defenders of trees may therefore see that preservation of trees is not a one-off battle or not exactly a battle at all. Sometimes, letting it go, letting it die a bit, may be necessary for its long-term existence.

References Cahen, H. (1988/2017). Against the moral considerability of ecosystems. In L. P. Pojman, P. Pojman, & K. McShane (Eds.), Environmental Ethics: Readings in theory and application (7th ed.). Cengage Learning. Callicott, J. B. (1989). In Defense of the land ethic. State University of New York Press.

154

F. K. T. Mok

Callicott, J. B. (1987/2017). The conceptual foundation of the land ethic. In L. P. Pojman, P. Pojman, & K. McShane (Eds.), Environmental ethics: Readings in theory and application (7th ed.). Cengage Learning. Csikszentmihalyi, M., & Ivanhoe, P. J. (Eds.). (1999). Religious and philosophical aspects of the Laozi. State University of New York Press. Chan, Wing-Tsit (1969). A source book in Chinese philosophy. Princeton University Press. DesJardins, J. R. (2006). Environmental ethics: An Introduction to environmental philosophy. Wadsworth. Development Bureau. (2013). Management guidelines for stonewall trees. Hong Kong Government. Development Bureau. (2019). Replies to initial written questions raised by finance committee members in examining the estimates of expenditure 2019–20. Hong Kong Government. https:// www.legco.gov.hk/yr18-19/english/fc/fc/w_q/devb-w-e.pdf Emerson, R. W. (1992). The selected writings of Ralph Waldo Emerson (B. Atkinson, Ed.). The Modern Library. Flader, S., & Callicott, J. B. (Eds.). (1991). The river of the mother of god and other essays by Aldo Leopold. University of Wisconsin Press. Highway Department (2015, August 12). Press release: Report on emergency felling of four stonewall trees at Bonham Road. Hursthouse, R. (1997). Virtue theory and abortion. In R. Crisp & M. Slote (Eds.), Virtue ethics. Oxford University Press. Jim, C. Y. (1998). Old stone walls as an ecological habitat for urban trees in Hong Kong. Landscape and Urban Planning, 42, 29–43. Jim, C. Y. (2006). Chinese banyan: From wishing tree to wishes for trees. Cosmos Books Limited. Jim, C. Y. (2008). Urban biogeographical analysis of spontaneous tree growth on stone retaining walls. Physical Geography, 29(4), 351–373. Jim, C. Y. (2010). Old masonry walls as ruderal habitats for biodiversity conservation and enhancement in urban Hong Kong. In N. Muller, P. Werner, & J. G. Kelcey (Eds.), Urban biodiversity and design. Blackwell. Jim, C. Y., & Frommer, G. (2014). Conservation of stonewall trees. Hong Kong MTR Corporation. Kawall, J. (2003/2017). Reverence for life as a viable environmental virtue. In L. P. Pojman, P. Pojman, & K. McShane (Eds.), Environmental Ethics: Readings in theory and application (7th ed.). Cengage Learning. Koller, J. M., & Koller, P. J. (1998). Asian philosophies (3rd ed.). Prentice Hall. Leopold, A. (1970). A sand County Almanac. Ballantine. Leopold, A. (1989). The land ethic. In L. P. Pojman, P. Pojman, & K. McShane (Eds.), Environmental ethics: Readings in theory and application (7th ed.). Cengage Learning. Liu, X. (1999). An inquiry into the core value of Laozi’s philosophy. In M. Csikszentmihalyi & P. J. Ivanhoe (Eds.), Religious and philosophical aspects of the Laozi. State University of New York Press. Lin, Y. (1978). The wisdom of Laotse. The Modern Library. Mair, V. H. (1998). Wandering on the way: Early Taoist tales and parables of Chuang Tzu. University of Hawai’i Press. Mcleod, A. (2014). Understanding Asian philosophy. Bloomsbury. Moeller, H.-G. (2006). The philosophy of the Daodejing. Columbia University Press. Ng, P. Y. L. (1983). New peace county: A Chinese gazetteer of the Hong Kong region. Hong Kong University Press. Office of the Ombudsman. (2016, June). Direct investigation into government’s handling of four stonewall trees along Bonham Road. Hong Kong Government. Office of the Ombudsman. (2019). Direct Investigation on government’s handling of two trees in front of Tang Chi Ngong Building of University of Hong Kong (p. 2019). Hong Kong Government, Feb. Pojman, L. P., Pojman, P., & McShane, K. (Eds.). (2017). Environmental ethics: Readings in theory and application (7th ed.). Cengage Learning.

8 An Examination of the Multiple Ethical Approaches by Which …

155

Regan, T. (1983). The case for animal rights. University of California Press. Sterba, J. (2001). Three challenges to ethics. Oxford University Press. Stone, C. D. (2010). Should trees have standing? Law, morality, and the environment (3rd ed.). Oxford University Press. Taylor, P. (2011). Respect for nature: A theory of environmental ethics (25th Anniversary Ed.). Princeton University Press. Wagner, R. G. (2003). A Chinese reading of the Daodejing: Wang Bi’s commentary on the Laozi with critical text and translation. State University of New York Press. Wu, Y. (吳怡). (1994). Xin yi lao zi jie yi (新譯老子解義). San min (三民).

Chapter 9

Development Theories and the Rights of Nature: Natural Spaces and Human Development Chi Kwok

Abstract Traditional understanding of development as economic performance such as Gross Domestic Product (GDP) is too narrow that it is liable to the charge of abstraction from human interests. Recent approaches of development emphasize the centrality of human beings. Human development index is a representative example: centering on life expectancy, education, and gross national income per capita, the index urges governments to re-direct the goals of development on the quality of life of individuals, such that development could empower individuals to fully develop essential capabilities that are necessary for living a good life. Nonetheless, even this seemingly inclusive capability approach fails to render sufficient conceptual room for thinking about the role of nature in human development. This chapter attempts to address such conceptual insufficiencies. The chapter argues that a more inclusive conception of development which highlights the significance of the right of nature to be included in considerations of development, thereby opening up conceptual space for the nature to represent itself as an independent agent in theories of development, is urgently needed. This chapter takes the urban natural park as an example to argue that nature is constitutive of human well-being, patterns of social interactions, as well as social ethos. Through examining Eastern and Western perspectives on the relationships between nature and human development, this chapter aims at shedding light on how nature could be theorized as constitutive of human development and could potentially contribute to a more egalitarian distribution of well-being, and how the language of nature’s rights can help to conceptualize such contributions.

9.1 Introduction Development has become a political concept which dictates the policy planning and design of most governments and international organizations. In modern times, it would not be an exaggeration to suggest that there is a development imperative in that most political entities seek to rationalize and they try to justify their functions and C. Kwok (B) Department of Government and International Affairs, Lingnan University, Tuen Mun, Hong Kong e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 B. Yung et al. (eds.), Rights and Urban Controversies in Hong Kong, Governance and Citizenship in Asia, https://doi.org/10.1007/978-981-99-1272-8_9

157

158

C. Kwok

existence through narratives of development. There are two dominant approaches of development. One is the “aggregate approach”, which suggests that the notion of development ought to be understood in aggregate terms, and the most prominent terms are GDP and GDP per capita. Such an approach seeks to compare different political entities’ relative degree of success through the specific aggregate terms deemed desirable. Another approach is generally referred as the “human development approach”. In contrast to the aggregate approach, the human development approach is an individual-centric approach in the sense that it refuses to accept the subsuming of individuals into aggregate terms because the approach emphasizes that each individual has certain fundamental aspects of well-being that need to be taken care of. This approach shifts the focus of development from abstract indexes to human well-being. One of the representative theories under this approach is the “capability approach”. As Sen (1999, p, 14) explains, “[t]he usefulness of wealth lies in the things that it allows us to do—the substantive freedoms it helps us to achieve … An adequate conception of development must go much beyond the accumulation of wealth and the growth of gross national product and other income-related variables”. As such, a development plan which attempts to develop human capabilities might not necessarily maximize GDP, vice versa. Sen’s critique of the aggregate approach provides us with at least two important insights. First, it suggests that the concept of development itself is a contested concept because different conceptions of development represent different orders of values and therefore privilege different kinds of interests. Second, different conceptions of development are different answers to the question of what is to be developed. Thus, a conception of development could be inclusive or restrictive in its scope depending on its answer to the question of what is to be developed. The goal of this chapter is to problematize the two general approaches of development by emphasizing that the role of nature in development has not been given sufficient conceptual room. The chapter will illustrate this claim through the case of urban natural parks in Hong Kong. This chapter is structured as follows. Firstly, the chapter will examine the aggregate approach to development. It argues that the approach’s conceptualization of development fails to explain why development matters to human. Secondly, the chapter discusses the human development approach, which is a theoretical response to the problems of the aggregate approach. Although the human development approach recenters human to the core of development, it still suffers from the problem of anthropocentrism, and therefore it does not render sufficient conceptual space to include the role of nature to human development, let alone a theoretical articulation of the relationships between the two. However, the United Nations’ Millennium Development Goals (MDGs) and Sustainable Development Goals (SDGs) represent a process of the expanding role of nature in human development. Thirdly, under this context the chapter takes the urban natural park as an example to demonstrate how public green space can help to resolve some of the challenges in the urban city development context, including facilitating a more egalitarian distribution of well-being as well as fostering the formation of social ties that would otherwise be more difficult or unavailable. The key point of this part is that once we take seriously the empirical

9 Development Theories and the Rights of Nature: Natural Spaces …

159

evidence of the utilities and functions of spaces of nature, we would recognize that human and nature are mutually shaping, and we need to abandon the idea that human beings have unilateral control over nature in the process of development. In other words, although both the aggregate approach and the human development approach establish the right to development for human purposes, these two approaches have not sufficiently captured the relationship between nature and development, and thus fail to recognize the role of nature in development. The language of the rights of nature can help us to capture this point. In conceptualizing development, the dichotomy between nature vs. development might be overcome once we recognize how nature could be constitutive of development. Then, I further discuss how intellectual resources from Eastern and Western perspectives can both be useful to the conceptualization of the rights of nature in different ways. Finally, I draw on the case of Hong Kong to provide a more concrete illustration of the theoretical arguments.

9.2 Discussion 9.2.1 The Aggregate Approach The most prominent theory under the aggregate approach is the “modernization theory”. Although there are different variants of the theory, its core feature lies in the dichotomy between traditional and modern societies, which simultaneously means the dichotomy between advanced and backward societies (Huntington, 1971, pp. 285–290). In other words, for modernization theorists, development is a process of how traditional social structure overcome obstacles in its transformation to modern society. In Daniel Lerner’s (1958, p. 71) classical theory of modernization, modernization is the gradual development of empathy, higher education, industrial economy, and mass media, which will all eventually lead to the emergence of participatory political institutions. Thus, Lerner’s theory depicts development as a process of socio-psychological and political development, and chief among which is how the development of industrial economy, or the aggregate level of economic development, will lead to changes in other social realms. Similarly, another influential modernization theory is Rostow’s “growth-stages” theory. He conceptualizes traditional society as “one whose structure is developed within the limited production functions” (Rostow, 1960, p. 4). Therefore, modernization is the rising productivity through wide-spread industrialization, particularly the adoption of modern productive technologies, and the end point of this process is a “high mass-consumption” society in which there is a high level of consumption due to the rising real income level, as well as a welfare state resulting from the necessity of protecting the basis of the consumption mass (Rostow, 1960, p. 7). As Lerner (1958, p. 60) described: Urbanization comes first, for cities alone have developed the complex of skills and resources which characterize the modern industrial economy. Within this urban matrix develop both

160

C. Kwok

of the attributes which distinguish the next two phases—literacy and media growth ... Not until the third phase, when the elaborate technology of industrial development is fairly well advanced, does a society begin to produce newspapers, radio networks, and motion pictures on a massive scale. This, in turn, accelerates the spread of literacy. … Out of this interaction develop those institutions of participation (e.g., voting) which we find in all advanced modern societies.

In other words, in modernization theory, development is an effort to transform nature into production and consumption. Researchers have long discovered that urbanization comes with depressed biodiversity (McIntyre, 2000; Marzluff, 2001; Turner et al., 2004). When “humanity becomes increasingly urban …[b]illions of people may lose the opportunity to benefit from or develop an appreciation of nature” (Turner et al., 2004, p. 585). The appreciation of nature is not only an individual aesthetic capacity, but also an ability to interact with nature and to broaden one’s understanding of the role of nature in quality living. But modernization theorists’ rather narrow conception of development places no distinctive role for human welfare and the quality of life, let alone the relationships between nature and the quality of human life. The unstated assumption of modernization theorists is that whenever a society moves into an “advanced stage”, such overall improvement will necessarily improve people’s quality of life. Only when production and consumption move into a “fairly advanced” stage, then the full enlightenment of citizens and relevant political institutions become possible. However, Max Weber has eloquently noted the paradoxical relationship between modernization and the quality of life, which is worth quoting at some length here: Now at some time this leisureliness was suddenly destroyed, and often entirely without any essential change in the form of organization, such as the transition to a unified factory, to mechanical weaving, etc. What happened was, on the contrary, often no more than this: some young man from one of the putting-out families went out into the country, carefully chose weavers for his employ, greatly increased the rigour of his supervision of their work, and thus turned them from peasants into labourers. On the other hand, he would begin to change his marketing methods by so far as possible going directly to the final consumer, would take the details into his own hands, would personally solicit customers, visiting them every year, and above all would adapt the quality of the product directly to their needs and wishes. At the same time he began to introduce the principle of low prices and large turnover. There was repeated what everywhere and always is the result of such a process of rationalization: those who would not follow suit had to go out of business. The idyllic state collapsed under the pressure of a bitter competitive struggle, respectable fortunes were made, and not lent out at interest, but always reinvested in the business. The old leisurely and comfortable attitude toward life gave way to a hard frugality in which some participated and came to the top, because they did not wish to consume but to earn, while others who wished to keep on with the old ways were forced to curtail their consumption. (Weber, 2001, p. 30, emphasis added)

Thus, the direct connection of aggregate wealth and the well-being of people must be grounded on a particular understanding of what matters to human beings. The particular conception of development under modernization theory does not recognize the plurality and diversity of different ways of life, and such a narrow conception also neglects the constitutive role of non-monetary goods of life. Put differently, when development is purely construed as economic development, it leaves out important social, political, cultural and environmental dimensions of development

9 Development Theories and the Rights of Nature: Natural Spaces …

161

which usually have crucial roles on discourses of the right of nature. More than that, as Weber has rightly pointed out, a narrowly defined conception of development under the imperative of aggregate growth, once being practiced by some parts of the society, will result in the exclusion of other ways of living that are incompatible with the imperative of aggregate growth. These other ways of living, for instance, include low-growth, de-growth, or zero-growth ways of living that prioritize natural preservation over sheer economic growth. Thus, it is not difficult to understand why, especially in the past few decades, economic growth has generally been made in ways that are contradictory to the preservation of nature. A caveat is that critique of the narrowness of conceptions of development in the aggregate approach should not be confused with the critique of the unequal distribution of wealth that the aggregate approach tends to cause. The inequality critique is a critique of the approach’s distributional effects, not of the approach’s conceptualization. Put differently, the inequality critique does not challenge the very idea that aggregate growth is the primary goal to be pursued, it simply argues that the growth must be distributed in a relatively egalitarian way. Nonetheless, the problem of the narrow conception of development is that it does not provide an account to connect different components of life with essential capabilities of human as well as elements of environment and nature.

9.2.2 The Human Development Approach As a representative example of human development approaches, the capability approach aims to address the key problem of aggregate approaches through a focus on what makes wealth meaningful to human lives. Sen (1993, p. 30) summarizes that “[t]he capability approach to a person’s advantage is concerned with evaluating it in terms of his or her actual ability to achieve various valuable functioning as a part of living”. Briefly put, if it is generally acceptable that one of the central goals of development is to enable people to live a good and decent life, then in order to have a good and decent life, one minimal condition is that people must have sufficient capacities to enable them to choose from a wide-range of options to determine how s/he wants to live her/his life. For example, a sufficient degree of education is crucial to developing to capacity for meaningful choices. This evaluation criterion departs substantially from that of the aggregate approach, because the capability approach only values wealth that can improve the basic functioning of a person, while wealth might not necessarily have such an effect. Adam Smith’s classical example of the pin factory illustrates that although the division of labour has drastically increased the productive capacity of the factory to create a much larger total stock of goods, workers who are required to perform those mundane work tends to have fewer opportunities to develop their intellectual capacities despite the higher monetary return they receive. The capability approach also recognizes that the process of wealth creation, if unduly designed, can hamper the basic functioning of human beings. For example,

162

C. Kwok

in cases where a rapid economic growth which leads to a highly unequal distribution of outcomes that only benefit a small minority of population while substantially undermine the livelihood of a majority of exploited workers, the aggregate approach remains silent to the unequal distribution while the human development approach would consider such economic development as creating additional obstacles for the cultivation of essential capacities of these exploited workers. Thus, as Sen suggests, “the corresponding approach to social advantage for aggregative appraisal as well as for the choice of institutions and policy takes the sets of individual capabilities as constituting an indispensable and central part of the relevant informational base of such evaluation” (1993, p. 30). The importance of drawing our attention to the basic functioning of human beings is that the argument for development must be based on certain normative grounds. Wealth accumulation itself is not a stand-alone normative ground which is sufficient to justify the moral value of such goal. Generally, the moral justification of the goals of development has to appeal to some fundamental human interests. In understanding fundamental human interests, the capability approach suggests that we need to return to the idea of what humans are capable of doing to achieve or realize what one wishes to be (Sen, 1993, 2009). As Nussbaum (2000, p. 12) puts it, “instead of asking about people’s satisfactions, or how much the way of resources they are able to command … [the approach asks], instead, what they are actually able to do or to be”. This can be further illustrated at two levels. First, a society’s general level of wealth does not imply any pattern of distribution. Theoretically, a wealthy society whose inequality is high means that the level of wealth that the society possesses does not reflect the quality of life of some significant parts of the society. Second, on an individual level, a higher level of individual wealth does not necessarily imply a higher quality of living, because economic development can often accompany undesirable social and environmental destruction. A clear example would be a village whose residents gain a much higher income because of the building of a factory; yet the drinking water of the village is heavily polluted, and as a result the residents eventually suffer from serious health problems which significantly hamper their physical capacities for exercising their agency. Thus, the capability approach suggests that the normative value of wealth depends on whether wealth can contribute to certain essential capabilities of human beings. Although Sen “has explicitly refrained from committing himself to one particular list of capabilities” (Robeyns, 2005, p. 195; Nussbaum, 2000),1 this framework provides a much more extensive theoretical space for the inclusion of a wide range of factors into the conceptualization of development. Sen’s capability approach laid the foundation for the development of the “Human Development Index” (HDI) developed by the United Nations (UN) Development Program in the 1990s. As Stanton (2007, p. 3) suggests, “[k]ey capabilities are instrumentalized in HDI by the inclusion of proxies for three important ends of development: access to health, education and goods. Empowered by these, and other, capabilities, individual can achieve their desired 1

There are certainly variations in the rich literature in debates surrounding the capability approach. It is beyond the scope of this chapter to engage in discussions concerning concrete lists of capabilities.

9 Development Theories and the Rights of Nature: Natural Spaces …

163

state of being”. Thus, the HDI represents a human-centric index which “expanded both the availability of measurement and comparison tools used by governments, NGOs, and researchers, and our common understanding of development itself”. The strength of the human development index is that it shows that the capability approach is not purely a philosophical theory, but a practical one which can be operationalized for cross-national comparison to guide policy design and assess relative degrees of development. The HDI’s influence can also be seen from the concrete development goals set by the UN. The Millennium Development Goals (MDGs) and subsequently the Sustainable Development Goals (SDGs) both demonstrate a broad range of goals beyond wealth accumulation. The eight MDGs were established after the UN Millennium Summit in September 2000. They include: (1) the eradication of extreme poverty and hunger; (2) achieving universal primary education; (3) promoting gender equality and empowering women; (4) reducing child mortality; (5) improving maternal health; (6) combating HIV/AIDS, malaria and other diseases; (7) ensuring environmental sustainability; (8) developing a global partnership for development (United Nations, n.d.-a.). The MDGs were set in 2000 with the target of achieving all these goals in 2015. As we can see, these goals aimed primarily at eliminating conditions that prevent individual human beings from developing their agency, as well as empowering social groups (particularly women) to overcome socio-political conditions that are unfavorable to their exercise of agency. A noteworthy feature of the MDGs is that environmental sustainability is one of the eight goals, meaning that the natural environment is conceptualized as an independent factor which is relevant to human development. Specifically, environmental sustainability in MDGs means four things: (1) “Integrate the principles of sustainable development into country policies and programmes and reverse the loss of environmental resources”; (2) “Reduce biodiversity loss, achieving, by 2010, a significant reduction in the rate of loss”; (3) “Halve, by 2015, the proportion of the population without sustainable access to safe drinking water and basic sanitation”; (4) “Achieve, by 2020, a significant improvement in the lives of at least 100 million slum dwellers” (United Nations, 2013). Although many of the goals still conceive nature as resources to be used for the improvement of human living rather than perceiving nature as an independent factor that is of its own value, the reduction of biodiversity loss was already a first step towards emphasizing nature’s independent value. For example, when explaining the importance of biodiversity, the UN said: “species are moving towards extinction at an ever-faster pace, and reduced biodiversity will have serious consequences for the ecosystem services upon which all people depend” (United Nations, 2013). Thus, the ecosystem is conceptualized as a necessity not simply because it could be used to further the well-being of human beings, but because it is a necessity that all must depend upon. In other words, human lives are only possible conditional on the presence of an ecosystem, and a good and decent human life is conditional on the preservation of a good ecosystem. In this sense, the MDGs at least implicitly recognize the fact that not only human beings shape nature, but nature can also shape human lives and condition human development.

164

C. Kwok

Subsequently, the MDGs have been expanded into seventeen “Sustainable Development Goals” (SDGs) in 2015, following the universal adoption of the “2030 Agenda for Sustainable Development” by all member states. The seventeen goals are: (1) no poverty; (2) zero hunger; (3) good health and well-being; (4) quality education; (5) gender equality; (6) clean water and sanitation; (7) affordable and clean energy; (8) decent work and economic growth; (9) industry, innovation and infrastructure; (10) reduced inequalities; (11) sustainable cities and communities; (12) responsible consumption and production; (13) climate action; (14) life below water; (15) life on land; (16) peace, justice and strong institutions; (17) partnerships for the goals (United Nations, n.d.-b). Among the seventeen goals, at least five of them are relevant to the preservation of nature (i.e., 7, 11, 12, 13, 14, and 15). Compared to the MDGs, where only one of the eight goals was about the natural environment, it is not an over-exaggeration to say that the SDGs have shown that the global community has become increasingly aware of the significant role of nature to human development. Through comparing the aggregate approach with the human development approach, we can see that early approaches of development fail to explain why development matters to human beings. Also, because of this failure, actual development policies sometimes can result in a paradox in which the creation of wealth becomes contradictory to human interests. This is often seen in destructive developmental policies that exacerbate socio-economic inequalities. The human development approach addresses this missing link between development and human well-being. The capability approach suggests that what have to be developed are fundamental human capabilities that can empower people’s agency to achieve what they desire to be, and wealth accumulation is only valuable as long as it could contribute to this goal. The human development index is a global comparative theoretical instrument that quantifies and operationalizes this philosophical idea in the capability approach. Such index helps to provide practical, observable, and comparable guidelines for developmental practices. Both the MDGs and SDGs develop substantive goals for the global community. The MDGs were one of the first steps to implicitly recognize the influence of nature over human development, and the SDGs extend and expand the linkage between nature and human development.

9.2.3 Nature and Human Development Even though human development approaches represent a significant progress towards a more sophisticated theoretical account of the relationship between nature and human development, the concrete relationships between the two factors remain unarticulated or implicitly “resource-centric”. The “resource-centric” view means that nature is still resources that human beings employ for development purposes, and the crux of this view is that the preservation of nature is to ensure that the total stock of resources will not decay in the future, so that these resources are “sustainable”. There is nothing inherently wrong with this view, but the resource-centric view is insufficient to capture a deeper level of what makes nature distinctive to human development.

9 Development Theories and the Rights of Nature: Natural Spaces …

165

One of the recent examples that take the independent value of nature seriously is Bolivia where the very first law “granting all nature equal rights to humans” was passed in the world (Vidal, 2011). These rights include “the right to life and to exist; the right to continue vital cycles and processes free from human alteration; the right to pure water and clean air; the right to balance; the right not to be polluted; and the right to not have cellular structure modified or genetically altered” (Vidal, 2011). More importantly, it also recognizes the right of nature “to not be affected by megainfrastructure and development projects that affect the balance of ecosystems and the local inhabitant communities” (Vidal, 2011). Thus, Bolivia’s experiment with granting equal and independent rights to nature shows that the idea of the rights of nature is not only a philosophical one but also a practical right which can be legalized. The importance of granting both moral rights and legalizing these moral rights to nature is that the moral rights recognize nature as an independent agent that is capable of carrying rights. A moral right specifies not only the agent that is carrying the right, but also the obligations that other agents must respect (Donnelly, 2013). A legal right specifies the institutional channel where an agent could represent itself when conflicts of rights or mutually exclusive claim-makings occur. Even though nature cannot speak for itself, the establishment of the legal rights to nature imply that other agents, such as environmental activists or indigenous communities, can raise legal claims for nature which require courts to adjudicate, and this process further denotes a space of justification where agents who intend to disrupt nature must offer reasons to explain how their actions have taken into account the reasonable interests of nature. The rights of nature subvert the hierarchy of anthropocentrism. However, the reasons that justify the importance of the rights of nature require further explanation and elaboration. On the one hand, as stipulated in the Bolivian law, nature itself could have value irrespective of whether it contributes to human well-being. Bio-diversity, sustainable environment, and a healthy eco-system, for example, have values in and of themselves. Apart from this, animals’ and plants’ right to life is also one of the normative groundings that support the respect for the right of nature. After all, many plants and animals exist much earlier than human lives, and in that sense one might argue that human beings are “colonizers” of the earth whose presence imposes threats to other forms of life and neglects their rightful interests. Instead of focusing on these lines of arguments which would establish a strong version of the right of nature,2 this chapter adopts a different strategy. I argue that even people who have minimal interests in rethinking anthropocentrism do have reasons to value the right of nature for anthropocentric reasons, such as the enhancement of well-being through the access to nature. I will particularly focus on the example of urban natural parks in that they can show us, in the context of urban life, how individual well-being, patterns of social interactions, and even social ethos are influenced and to a certain extent shaped by the availability of natural space.

2

The strong claim might even demand the withdrawal of human and human activities from nature, such as a reversal of urbanization and demolition of dams.

166

C. Kwok

This strategy is adopted for two reasons. First, instead of concentrating on the metaphysical debates concerning whether nature could have value independent of human lives,3 my goal is to forge a minimal philosophical ground that could be the basis for people who have completely different or even opposite views concerning anthropocentrism for discussing the minimal acceptable scope of the right of nature. That being said, a caveat is that such a minimalist approach would only be able to establish a relatively narrow scope for the rights of nature. This narrow claim does not question the right of human beings to utilize nature for developmental purposes, so that it does not demand a large retreat of human from nature, but the narrow claim does demand, in the process of development, that the interests of nature ought to be taken into account to a much greater degree, and the normative and motivational reasons offered by the chapter is that granting the right to nature is compatible with better human development. Thus, it is an attempt to reconceptualize the relationships between the right to development and the right to nature. This claim might be regarded conservative by some readers. It should be noted that I do not think that more radical claims cannot be established, but that for motivational concerns, the inclusion of some degree of considerations for nature in development, for example, green space, is a first step to provide opportunities for city dwellers to experience the goods of nature, which arguably might contribute to a better understanding of why nature is in and of itself valuable.

9.2.3.1

Urban Natural Parks and Egalitarian Distribution of Well-being

Urban natural parks have usually been considered as primarily providing “convenient recreation opportunities for city dwellers who may otherwise have limited or no access to nature-based recreation” (Baur & Tynon, 2010, p. 195). Development often requires urbanization, and urbanization is the movement of population from rural areas to urban areas. Thus, urbanization implies the separation of a large amount of population from nature (Turner et al., 2004). Urban development for a relatively high density of population demands the transformation of nature into necessary material infrastructures for the functioning of city, such as roads, shopping centers, and residential buildings (Bertram & Rehdanz, 2015). Urban natural parks are attempts to balance the developmental needs of the city and human needs to be in contact with nature. As Baur and Tynon (2010, p. 196) rightly put it: “[n]atural parks exist with the specific intention of promoting more contact with, and appreciation for, nature”. A particularly salient aspect of urban natural parks is that they ameliorate the influences of socio-economic inequalities on the access to the benefits associated with exposure to nature. Researchers have found that “even some fairly simple natural systems, including individual trees, can provide benefits to human well-being” (Turner et al., 2004, p. 588). In a systematic review of the empirical evidence of the benefits of nature to human well-being, 3

This is not to say that they are unimportant debates, but there could be different strategies for advancing the rights of nature at a theoretical level.

9 Development Theories and the Rights of Nature: Natural Spaces …

167

Bowler and colleagues (2010) found that a natural environment can promote both physical and mental health. For physical health, a natural park “may provide an environmental setting for an activity or exercise programme”, which might have the effect of promoting “participation in social activities and engagement with others” (Bowler et al., 2010, p. 1). More than that, Kaplan and Kaplan’s (1989) frequently cited “attention restoration theory” suggests that the exposure to nature “provides the particular environmental stimuli to allow restoration from attention fatigue, which occurs during the performance of cognitive tasks that require prolonged maintenance of directed attention” (Bowler et al., 2010, p. 2). In addition to this, researchers have also found that “nature may allow psycho-physiological stress recovery through innate, adaptive responses to attributes of natural environments such as spatial openness, the presence of pattern or structure, and water features” (Bowler et al., 2010, p. 2; Chiesura, 2004). Access to nature is not only available through urban natural parks. City dwellers could organize campaign trips to remote rural areas to experience the benefits of nature, or they can travel to other regions or countries for this purpose. However, travelling requires both material and temporal resources. As Baur and Tynon (2010, p. 196) rightly point out: Considering the time, expense, and planning involved for a camping or day trip to remote wilderness, expecting that many urban residents will choose a convenient day trip to an easily accessible local nature area is reasonable. A locally available nature park may be the only option for busy urban working professionals to enjoy the relative peace and quiet of a natural setting. Moreover, not everyone is willing or interested in camping, backpacking, or roughing it in the wilderness.

Although they stress the benefits of natural parks for “working professionals”, we might reasonably say that resources constraints are more acute to the economic disadvantaged. For instance, working class people not only have to work long hours, but they also have less amount of money available for recreational purposes. Without a readily available natural park, they face more burdens and constraints over the access to the benefits of natural environments. Thus, both the empirical evidence of the benefits of nature to people’s physical and mental health and the fact that the access to nature for city dwellers requires resources demonstrate to us that the availability of easily accessible and free urban natural parks tends to produce a more egalitarian distribution of well-being in the city because urban natural parks provide economic disadvantaged groups a more substantive opportunity for the access to the benefits of nature. In other words, if we accept that human beings should be given the right to access nature given its important benefits to our well-being, then the equal rights to access nature could only be ensured by having widely and easily accessible green urban spaces to especially lower-class people.

9.2.3.2

Urban Natural Parks, Social Capital, and Solidarity

The pre-condition for urban natural parks’ egalitarian distributive function is that they are public space. Not all natural parks are public. This is partly because the

168

C. Kwok

“gate-keeping” costs of natural parks are relatively small, and hence if parks are provided by the market, parks often lose their public nature. This is increasingly the case in the US and Europe: A striking illustration of the relative ease of excluding noncontributors is Gramercy Park. This is a small, fenced park in an affluent neighborhood of Manhattan. Eligible residents pay an annual fee and receive a key. This model builds on a long history of large, gated private parks in Europe. The proliferation of private health clubs and amusement parks demonstrates that there is no classic market failure in the commercial provision of recreational space. New technology has already eliminated the job of toll-taker, and it is possible to imagine a world in which GPS and automated payments commodify public space. (Kohn, 2020, p. 1106)

Thus, natural parks that aim to at least partially provide an egalitarian opportunity to access to nature will have to be public natural parks that do not charge an entrance fee. Nonetheless, the importance of the public nature of natural parks goes beyond the affordability of using the parks. One of the social functions of public natural parks is that their existence increases the social space where the building of bridging social capitals and exposure to differences become easier. As Kohn (2020, p. 1106) suggests, “the inability to provide green space [is] also the inability to provide a collective, inclusive, and diverse place of encounter”. The reason why a natural park is also a “collective, inclusive, and diverse” space of encounter is that, compared to private parks which usually exclude the socially marginalized, public natural parks have a higher chance of social encountering that one might not be able to experience in a highly divisive society: The enjoyment of a private park may also be different from the experience of a public park. In both cases, the individual has access to green space, but the social experience of the two types of parks is not the same. In Gramercy Park users will likely encounter neighbors who occupy a similar class position. A public park provides the opportunity to encounter a broader cross-section of society, and a network of public parks affords a variety of different experiences. (Kohn, 2020, p. 1106)

The socially valuable function of a public natural park, besides its capacity to provide a relatively egalitarian opportunity to access to the benefits of nature, is that the opportunity to expose to the social and living conditions of other parts of the society. This epistemic gain is independently valuable as citizens’ capacity for empathy and an ethos of solidarity are important assets for a well-functioning society (Kohn, 2020), and the existence of natural public parks helps to facilitate them. Additionally, urban natural parks also help to facilitate the growth of social capital. Robert Putnam (2000) suggests that “bridging social capital”, meaning a network of intermediate associations which are composed of people with different backgrounds and value preferences, is vital for a healthy civil society. Researchers have also found that natural parks “encourage the use of outdoor spaces, increases social integration and interaction among neighbors” (Chiesura, 2004, p. 130; Coley et al., 1997). The existence of urban natural parks therefore provides a more favorable infrastructure for the accumulation of social capital. The important insight offered by this empirical evidence is that natural spaces shape the ways how human beings interact with one

9 Development Theories and the Rights of Nature: Natural Spaces …

169

another in the urban context. This further reflects the fact that human beings do not just exercise unilateral control over nature. Instead, nature also influences individual well-being, patterns of social interactions, the formation of social capital, and even the social ethos (Barua, 2021). Granting rights to nature is an important first step towards recognizing the capacity of nature to influence individual well-being and patterns of social interactions. When nature has rights, it means that human beings have obligations towards respecting nature’s rights. The rights of nature create a justificatory space for different agents to make claims on behalf of nature to contest developmental claims that do not give a proper concern over the appropriate role of nature in development.

9.2.4 Eastern and Western Perspectives on the Rights of Nature From an Eastern perspective,4 the constitutive role of nature in human development is being given much more emphasis than major theories of development developed from within the liberal traditions as outlined in previous sections. An example would be a form of Confucian humanism as first articulated in the Doctrine of the Mean, Mencius and Analects. According to Tu Wei-ming (1985), Confucian humanism is “fundamentally different from anthropocentrism because it professes the unity of man and Heaven rather than the imposition of the human will on nature”, and the human transformation of nature means “an integrative effort to learn to live harmoniously in one’s natural environment as a modest attempt to use the environment to sustain basic livelihood” (p. 75). As a result, the “idea of exploiting nature is rejected because it is incompatible with the Confucian concern for moral self-development” (Tu, 1985, p. 75). The Confucian perspective thus rejects placing human development above nature. Learning to live with nature in a way that respects nature and learning to appreciate the constitutive role of nature in human development are essential components of self-development, which according to the Confucian doctrine, is an indispensable component of a good life (Tucker, 1991). From a Confucian perspective, incorporating considerations for nature is an integral part of human development. Thus, in contrast to major theories of development which perceive nature as external or instrumental to human development purposes, the Confucian perspective provides a much more thoroughly elaborated theoretical grounding for integrating nature into human development than those as articulated 4

By using the term “Eastern perspective”, I do not mean to essentialize “the East”. Indeed, as in the Western traditions, there are many different scholarly strands and theories, such as socialism, republicanism, liberalism, and so on. The so-called “East” also contains many theoretical traditions including Daoism, Buddhism, and so on. When this chapter discusses the “Eastern perspective”, it is primarily referred to intellectual and moral resources as found in the broadly defined Confucian tradition. This selection is based on the reason that Confucianism has been the major theoretical doctrine that shapes the socio-political landscapes in many countries in the East. See, for examples: Chan (2014) & Kim (2016).

170

C. Kwok

in earlier reflections of urban public parks. In practice, scholars of management studies have begun to discover the usefulness of the concept Tian-ren-he-yi (literally means “nature human harmony” or “nature human combined as one”) in resolving the business-environment dilemma, a dilemma which asserts the incompatibility between economic development and environmental concerns (Peng et al., 2015). While the Confucian tradition provides us with a possible theoretical grounding to rethink the human-nature relationships which depart significantly from that of the classical developmental perspectives as developed in the West, only the recent turn in Bolivia’s legalization of the rights of nature provides us with an important distinction between taking into account the reasonable interests of the nature as a consideration versus taking into account the reasonable interests of the nature as an obligation. The rights of nature imply that a structure of rights has to be established. A structure of rights consists of at least three main elements: (a) there is a bearer of rights, (b) there are agents that are demanded to respect the rights bearer, and (c) there are formal institutional channels the bearer of rights can raise reparative claims once the interests of the bearer of rights have been unduly harmed (Donnelly, 2013). In the absence of any of these three components, a right does not exist. The distinction between consideration and obligation is that the latter denotes a much stronger demand and is also non-optional. Thus, even though the aforementioned benefits of urban green spaces will provide different agents with reasons to take into consideration the interests of nature in human development, the role of nature will only be strengthened and become a necessary social demand only with the establishment of the rights of nature under which different agents would notice that once nature’s interests have not been sufficiently considered, they will confront reparative claims made by other agents on behalf of nature. Therefore, the rights of nature, in its essence, represent a social imperative which demands the internalization of the thinking about the interests of nature in any human developmental processes. While the Eastern perspective demands the inclusion of nature into human development as a moral concern, the Western perspective further extends such moral concern to become a legal and institutional concern. Put differently, the Eastern perspective provides important resources for thinking about the constitutive role of nature and human development that has long been a blind spot in Western theories of development, and the Western perspective, especially empirical research and theories of urban parks and rights, can complement the Eastern perspective in that the Western perspective helps to provide concrete evidence to demonstrate nature’s social and relational functions to human development and also the importance of the language of rights in the internalization of nature into human development.

9.2.5 The Case of Hong Kong Hong Kong is an interesting case for the discussion of the rights of nature. On the one hand, the city has long been regarded as a classical example of neoliberalism. As Peck et al., (2020, p. 1) put it:

9 Development Theories and the Rights of Nature: Natural Spaces …

171

When free-market think tanks, Chicago School economists and libertarian polemicists have looked at Hong Kong, what they have seen is a small-state paradise. The rate of taxation is low and the rate of growth is high, just how it should be. Hong Kong has duly served as a truth (or faith) spot for the neoliberal worldview.

It has a free market, a non-interfering government, and a favorable ethos of consumerism and market-led business development. Thus, despite the relatively high GDP per capita of the city, it is one of the regions that tops the list of Gini coefficient— an economic distributive pattern that fits the typical understanding of a neoliberal society. In June 2017, Hong Kong’s Gini coefficient was 0.539 (with zero indicating absolute equality and one indicating absolute inequality), much higher than that of the US (0.411) and Singapore (0.4579) (Wong, 2018), while the US and Singapore have already been criticized as neoliberal economies where economic inequalities have shown increasingly worrisome trends. On the other hand, Hong Kong is more or less an extreme case of challenges of urbanization. Challenges of urbanization include high population density and the ability of the city to deliver affordable infrastructural facilities, such as housing, recreation, and transportation. Hong Kong is one of the most densely populated cities in the world. In mid-2019, its population density is 6,930 people per square kilometer (HKSAR, 2021). Meanwhile, there is only limited available land resources (Tian et al., 2012). As Xue et al. (2017) point out, “66.6% of the total territory of Hong Kong are constituted of non-constructive land, i.e. 738 km of woodland, shrubland, grassland and wetland, while only around 23.92% of the land resources are built-up area for residential, commercial, industrial, institutional, transportation, etc”. The challenges posted by a neoliberal economy and a high population density are that the government faces both constraints of the market economy and the need to massively restructure natural environment for the sake of accommodating the needs of population for industrial and commercial development. As Xue and colleagues (2017) suggest, Hong Kong is “an ultra-dense ‘concrete forest’ integrated with an acutely overcrowded urban area and surrounded by an open, natural green landscape and wildlife habitat” (p. 289). Despite the scarcity of land resources for urban development purposes, the city’s planning authority is aware of the importance of green open space. According to the “Hong Kong Planning Standards and Guidelines” published by the Planning Department of the Government of the Hong Kong Special Administrative Region of the People’s Republic of China (HKSARG) in 2015, “[g]reen landscape, natural or man-made, contributes to the quality of environment and enhances quality living” (Hong Kong. Planning Department, 2015, p. 35). The report details thirteen ways how urban green public space could contribute to higher quality of life: (1) “offer visual and psychological comfort and relief”; (2) “adds aesthetic quality to the urban design for creation of a more pleasant cityscape”; (3) “adds human dimension to a city where high-rise developments dominate in scale and proportion”; (4) “increases the permeability of space to maintain a balance of void and mass for visual contrast in the concrete cityscape”; (5) “defines space among buildings and can be used to delineate vistas to form interesting view corridors”; (6) “screen unsightly views and soften harsh and degraded surroundings”; (7) “provide sense of seasonal change that enhances the visual interest

172

C. Kwok

of the city scene and vibrancy of the city life”; (8) “improvise microclimate”; (9) “helps contain flying dust and counters the effects of environmental pollutants”; (10) mitigating traffic noise; (11) “acts as hydrological balancing reservoir”; (12) “provide food and shelter for wildlife (e.g. insects and birds) and hance enhance biodiversity in the area and conserve wildlife”; (12) “reduce visual monotony, enhance the quality of the road environment and promote traffic safety” (Hong Kong. Planning Department, 2015, p. 36). The rather comprehensive list of the functions of spaces of nature in the urban context, although neglecting how green open space might influence patterns of social interactions, does acknowledge the fact that green open space is important for the well-being of city dwellers mentally, physically, and aesthetically. In other words, the right to the nature was formally conceptualized as constitutive of the right of a quality life for city dwellers. In this sense, the list represents an official statement which suggests that the rights of nature and the rights of human development are not necessarily in conflict with one another. The HKSARG has also emphasized that the balance between nature and development should be pursued in ways that make green open space a constitutive part of development plans: “greening principles should be actively pursued as a development and environmental management goal in the planning process rather than applied retrospectively as a remedial or cosmetic measure” (Hong Kong. Planning Department, 2015, p. 37). And the government also emphasizes that, because of the time needed for “plant growth and maturity”, “implementation of greening works should be programmed in advance of the completion of development project as far as possible” (Hong Kong. Planning Department, 2015, p. 37). At the same time, the report also recognizes the land constraints of Hong Kong: Although limited land availability and high land cost may be the constraints in the provision for greening, the opportunities to reserve new space for greening should be maximized with a view to ensuring more flexible choices and designs of greenery for greater variety of functions to suit particular conditions rather than adopting standardization. (Hong Kong. Planning Department, 2015, p. 37)

The guiding development principles require urban planners to find ways to incorporate these open natural spaces into the development process, and they also require planners and developers to see the functions of green space as flexible and separable, meaning that even land constraints might exclude some forms of natural space and therefore some kinds of functions, there must still be ways to include other forms of natural space that could include other forms of functions. The significance of this “maximizing green space under constraint” principle is that the principle rejects land constraints to be a reason to exclude green space. Thus, despite the constraints, green space must be present in development plans. In this sense, the report is an attempt to include the access to nature into the bundle of rights that urban citizens ought to enjoy. While the HKSARG recognizes the functions of urban green space in development, its development plans could benefit by acknowledging the egalitarian distribution of well-being and patterns of social interaction shaping function of natural

9 Development Theories and the Rights of Nature: Natural Spaces …

173

spaces. Most of the green spaces in Hong Kong are located in the countryside (Tian et al., 2012). Given that the transportation system is relatively well-designed and the countryside in Hong Kong is generally accessible to most people in Hong Kong, some might argue that the relatively egalitarian distribution of the right to access to the benefits of nature is therefore guaranteed. However, a peculiar feature of the distribution of green spaces in Hong Kong is that: In some low-density, low-rise, and high-income residential neighborhoods, open spaces are large enough to provide locations for green spaces on the pavement and private gardens. In the medium-density residential and commercial areas and areas of new development on reclaimed land, a small proportion of green open spaces exists along the road. In highdensity areas, especially in the old towns, the green spaces are totally fragmented, and the site coverage is close to 100%. (Tian et al., 2012, p. 103)

In other words, the distribution of green spaces in Hong Kong is more favorable to residential areas that are primarily for high-income people, while marginalized groups who often reside in high-density areas generally lack accessible green spaces. They might lack immediate access to green spaces. It should be stressed that the Planning Department’s explicit recognition of the functions of green public spaces is already a progressive step, and the wide and open availability of country parks in Hong Kong already serves many of the well-being enhancing functions. But if the city desires to make the benefits of green public spaces more evenly distributed to different groups of the society, then a reflection on the distributive patterns of green public spaces appears to be necessary. It is also worth mentioning that the grounds for the preservation of green spaces in urban development plan are not solely human-centric. For instance, concerns about biodiversity, the value of old trees, and the protection of endangered species are some of the reasons that the HKSARG employs to justify their natural conservation policies. When explicating its nature conservation policy adopted in 2004, the HKSARG explicitly mentioned that two of the reasons for identifying and designating suitable areas as green spaces are to conserve “important fauna and flora” and to promote “public awareness and participation in nature conservation” (Hong Kong. Hong Kong Special Administrative Region Government, 2021). Thus, these normative grounds for the creation and designation of green spaces might require the compromise of human developmental interests out of a respect for the right to life of nature. The substantive policy measures in dealing with cases which involve the conflicts of interests between human development and the nature require contextual knowledge that is beyond the chapter’s scope. What I attempt to demonstrate here is that the justificatory grounds offered by the HKSARG in its green space policies entail a room for compromising human developmental interests for concerns of vital interests of nature. The case of Hong Kong is an important example which illustrates that even in contexts where incorporating nature into the developmental process could be challenging due to population density and resource constraints, workable proposals could still be made to reconcile the potential conflicts between nature and human development, and a formal right of the nature could still be granted by making explicit official commitment which acted as the guiding principles for development.

174

C. Kwok

9.3 Conclusion This chapter argues that development theories have not given sufficient theoretical space for including nature to be a constitutive element of development. A central point made in the chapter is that nature should not be simply understood as resources that we use for development purposes. Through the case of urban natural parks, I have demonstrated that the existence of public green space can influence not only the egalitarian distribution of well-being, but also the patterns and structure of social interactions. In other words, nature and human mutually shape each other in the process of development. It is against this background that the chapter argues that the rights of nature could be a useful language to capture the mutually shaping relationship, because the rights of nature grant nature the ability to represent itself and contest human development plans morally and legally.

References Barua, M. (2021). Infrastructure and non-human life: A wider ontology. Progress in Human Geography, 0309132521991220,. https://doi.org/10.1177/0309132521991220 Baur, J. W. R., & Tynon, J. F. (2010). Small-Scale urban nature parks: Why should we care? Leisure Sciences, 32(2), 195–200. https://doi.org/10.1080/01490400903547245 Bertram, C., & Rehdanz, K. (2015). The role of urban green space for human well-being. Ecological Economics, 120, 139–152. https://doi.org/10.1016/j.ecolecon.2015.10.013 Bowler, D. E., Buyung-Ali, L. M., Knight, T. M., & Pullin, A. S. (2010). A systematic review of evidence for the added benefits to health of exposure to natural environments. BMC Public Health, 10(456), 1–10. https://doi.org/10.1186/1471-2458-10-456 Chan, J. (2013). Confucian perfectionism: A political philosophy for modern times. Princeton University Press. Chiesura, A. (2004). The role of urban parks for the sustainable city. Landscape and Urban Planning, 68(1), 129–138. https://doi.org/10.1016/j.landurbplan.2003.08.003 Donnelly, J. (2013). Universal human rights in theory and practice (Third edition.). Cornell University Press. Hong Kong. Planning Department. (2015). Hong Kong planning standards and guidelines: Chapter 4—Recreation, open space and greening. https://www.pland.gov.hk/pland_en/ tech_doc/hkpsg/full/pdf/ch4.pdf Huntington, S. P. (1971). The change to change: Modernization, development, and politics. Comparative Politics, 3(3), 285–290. Kaplan, R., & Kaplan, S. (1989). The experience of nature: A psychological perspective. Cambridge University Press. Kim, S. (2016). Public reason Confucianism: Democratic perfectionism and constitutionalism in East Asia. Cambridge University Press. Kohn, M. (2020). Public goods and social justice. Perspectives on Politics, 18(4), 1104–1117. Cambridge Core. https://doi.org/10.1017/S1537592719004614 Hong Kong. Hong Kong Special Administrative Region Government. (2021). The natural resources & nature conservation policy in Hong Kong. https://www.gov.hk/en/residents/env ironment/conservation/naturalresourceconservation.htm Lerner, D. (1958). The passing of traditional society. The Free Press. Marzluff, J. (2001). Worldwide urbanization and its effects on birds. In J. Marzluff, R. Bowman, & R. Donnelly (Eds.), Avian ecology and conservation in an urbanizing world (pp. 19–47). Kluwer.

9 Development Theories and the Rights of Nature: Natural Spaces …

175

McIntyre, N. E. (2000). Ecology of urban arthropods: A review and a call to action. Annals of the Entomological Society of America, 93(4), 825–835. https://doi.org/10.1603/0013-8746(200 0)093[0825:EOUAAR]2.0.CO;2 Nussbaum, M. C. (2000). Women and human development: The capabilities approach. Cambridge University Press. Peck, J., Bok, R., & Zhang, J. (2020). Hong Kong—a model on the rocks? Territory, Politics, Governance, 1–20. https://doi.org/10.1080/21622671.2020.1837221 Peng, M. W., Li, Y., & Tian, L. (2015). Tian-ren-he-yi strategy: An Eastern perspective. Asian Pacific Journal of Management, 33(3), 695–722. Putnam, R. (2000). Bowling alone: The collapse and revival of American community. Simon & Schuster. Robeyns, I. (2005). The capability approach: A theoretical survey. Journal of Human Development, 6(1), 93–117. https://doi.org/10.1080/146498805200034266 Rostow, W. W. (1960). The stages of economic growth: A non-communist manifesto. Cambridge University Press. Sen, A. (1993). Capability and well being. In M. Nussbaum & A. Sen (Eds.), The quality of life (pp. 30–53). Oxford University Press. Sen, A. (1999). Development as freedom. Knopf. Sen, A. (2009). The idea of justice. Belknap Press of Harvard University Press. Stanton, E. A. (2007). The human development index: A history. https://scholarworks.umass.edu/ cgi/viewcontent.cgi?article=1101&context=peri_workingpapers Tian, Y., Jim, C. Y., & Tao, Y. (2012). Challenges and strategies for greening the compact city of Hong Kong. Journal of Urban Planning and Development, 138(2), 101–109. https://doi.org/10. 1061/(ASCE)UP.1943-5444.0000076 Tu, W.-m. (1985). Confucian thought: Selfhood as creative transformation. SUNY Press. Tucker, M. E. (1991). The relevance of Chinese neo-Confucianism for the reverence of nature. Environmental History Review, 15(2), 55–69. Turner, W. R., Nakamura, T., & Dinetti, M. (2004). Global urbanization and the separation of humans from nature. BioScience, 54(6), 585–590. https://doi.org/10.1641/0006-3568(2004)054 [0585:GUATSO]2.0.CO;2 United Nations. (2013). Goal 7: Ensure environmental sustainability. https://www.un.org/millenniu mgoals/pdf/Goal_7_fs.pdf United Nations. (n.d.-a). Background. https://www.un.org/millenniumgoals/bkgd.shtml United Nations. (n.d.-b). The 17 goals. https://sdgs.un.org/goals Vidal, J. (2011, April 10). Bolivia enshrines natural world’s rights with equal status for Mother Earth. The Guardian. https://www.theguardian.com/environment/2011/apr/10/bolivia-enshri nes-natural-worlds-rights Weber, M. (2001). The protestant ethic and the spirit of capitalism (T. Parsons, Trans.). Routledge. Wong, M. (2018, September 27). Why the wealth gap? Hong Kong’s disparity between rich and poor is greatest in 45 years, so what can be done?. South China Morning Post. https://www.scmp.com/news/hong-kong/society/article/2165872/why-wealth-gap-hongkongs-disparity-between-rich-and-poor

Chapter 10

Pursuing Unity or Creating Disunity? An East–West Complementary Approach to Urban Controversies Related to the Right to Environment Baldwin Wong Abstract In East Asia, the right to development has long occupied a central role in the making of laws and policies. However, the right to environment receives increasing public attention in recent years. What theories should be used to justify environmental protection when these two rights conflict with each other and cause urban controversies? This chapter discusses two theories, political liberalism and Confucianism, and argues that there should be a division of justificatory labor between these two theories in environmental policy-making and green citizenship education. I agree with some contemporary Confucians, such as Tu Wei Ming, that the Confucian idea of Tian-ren-he-yi (TRHY, the unity between the Heaven and the Humanity 天人合一) provides a non-anthropocentric vision of the world. Thus it can make a distinctive contribution to the environmental policy-making. Nevertheless, given the pluralistic environment in East Asia, progressive environmental policies that could only be justified by TRHY may invoke political opposition. I, therefore, suggest a paradox that Confucians have to face when they appeal to TRHY in the public sphere—the pursuit of the unity between Heaven and Humanity will eventually result in disunity among citizens. To avoid this paradox, I argue that the better site for Confucians to introduce TRHY should be the private sphere, such as family, private school, and social discussion. Hence, in the environmental movements, Confucianism and political liberalism can be complementary to each other. Political liberalism justifies green laws and policies on grounds that could be publicly acceptable to all citizens in the public sphere, whereas Confucianism uses its cultural resources to educate and persuade people to become green citizens in the private sphere. I also use the controversy about building a new student hostel in the Chinese University of Hong Kong in 2013 as an example to show how TRHY can mobilize people to reflect on the priority of the right to development.

B. Wong (B) Department of Religion and Philosophy, Hong Kong Baptist University, Kowloon Tong, Hong Kong e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 B. Yung et al. (eds.), Rights and Urban Controversies in Hong Kong, Governance and Citizenship in Asia, https://doi.org/10.1007/978-981-99-1272-8_10

177

178

B. Wong

10.1 Introduction Traditionally, human rights are distinguished into three generations (Addink, 2019, p. 80). The first generation is the “negative” human rights, or civil liberties, which enjoin states to abstain from arbitrarily interfering with personal security and political participation. The second generation is the “positive” human rights; this concerns economic or social rights, such as the right to work and the right to social security, which entitle individuals or collectives to the provision of certain goods or social services. The third generation is highly complex composited rights, like the right to development and the right to environment. The former right is defined as a right that aims at “economic growth” (Posner, 2014, p. 37) and “the constant improvement of the well-being of the entire population and of all individuals” (Hurley, 2019, p. 249), such as the eradication of poverty, resolving housing shortage, and building public infrastructures.1 The latter right is defined as a right “to enjoy a healthy and ecologically balanced environment…[which] may be exercised before public bodies and private entities, whatever their legal status under national and international law” (Giorgetta, 2002, p. 176). Its implications in policy include environmental citizenship education and the provision of “green space”, such as national country parks. Despite both belonging to the third generation of human rights, two rights are treated very differently in East Asian politics. The right to development occupies an extraordinarily fundamental role in East Asian politics. Many governments of East Asian countries, such as China, Japan, South Korea, and Hong Kong, invoke this right to rationalize their policies of urban development. The right to environment, on the contrary, is largely ignored in the making of laws and policies. The dominance of the development-oriented discourse can be seen in the “Big Land Debate” that happened in Hong Kong. Being a city that has a population of around seven million people, Hong Kong has long been bothered by a problem of housing shortage. In 2018, the Hong Kong government decided to find land on which to build affordable housing and launched a public consultation on the location of new urban development. The consultation, though called “Big Land Debate” by the former Chief Executive Carrie Lam, was not truly a consultation. For the government had its own agenda and persuaded the public that some country parks should be razed to develop new towns. Carrie Lam publicly said that, for the sake of resolving the problem of the housing shortage, the public should support the government to develop residential estates on the fringes of county parks (The Standard, 2018). To the Hong Kong government, the right to development obviously played a central role in its decision-making, whereas the right to environment did not occupy too much weight. This way of political decision-making, however, generates lots of urban controversies. Citizens came out 1

Some political theorists, such as Amartya Sen, propose that development should be understood as “the expansion of the real freedom that people enjoy” (Sen, 1999, p. 7). In this approach, development is linked with freedoms like political freedom and freedom of opportunity. From this, Sen argues that development cannot be reduced to a drive to simply increase people’s basic incomes and living standards. However, this interpretation of the right to development is rarely used by East Asian politicians, who usually link development with economic growth. Hence, in this chapter, I shall mainly use economic growth to interpret the idea of development.

10 Pursuing Unity or Creating Disunity? An East–West Complementary …

179

to protest and argued that “[d]evelopment on country park peripheries will be like a virus. It won’t stop there. It will creep deeper and deeper into the parks. Eventually, …[w]e will forever lose our breathing space” (South China Morning Post, 2018). This showed an increasing public attention to the right to environment and that the old development-oriented discourse was no longer taken for granted by the public. A new theory is needed for governance and addressing this kind of conflict between the right to development and the right to environment. Which theory can perform this role in East Asia, political liberalism, currently one of the representative liberal theories in the Western tradition, or Confucianism, a traditional political theory that has a long history in numerous East Asian societies? In this chapter, I shall compare these two theories and argue that their roles can be complementary to each other in the East Asian environmental movement. I shall particularly explore the role of the Confucian idea of Tian-ren-he-yi (the unity between the Heaven and the Humanity 天人合一, hereafter called TRHY). I oppose to the common Confucian view that Confucianism is more superior to liberalism in the justification of green laws and policies. I argue that, if some green laws and policies are made merely on a Confucian ground, then political opposition will be invoked. This way of governance will harm social stability. Pursuing the unity between Heaven and Humanity will, paradoxically, cause the disunity of the people. Hence, a green movement does not require that Confucianism replaces liberalism. Confucianism and liberalism are complementary to each other in the sense that, while liberalism offers public reasons for politicians to justify green laws and policies in the political domain, Confucianism offers ethical values, such as TRHY, for people to educate green citizens in family and private education. In brief, I clarify that the proper site for Confucian ideas to be applied is the private sphere, not the procedures of making laws and policies. This complementary approach also sheds light on the current East–West political philosophical comparisons, which often conceive the relationship between Eastern and Western theories as a kind of competition. Finally, I shall introduce a controversy about building a new student hostel in the New Asia College of the Chinese University of Hong Kong. In this example, TRHY serves as an effective tool to mobilize students and alumni of a college which has a strong Confucian tradition to be concerned with the environment and reflect on the priority of the right to development. This chapter is divided into three sections. First, I shall introduce the Confucian idea of TRHY and explain why contemporary Confucians believe that it provides a more robust justification for green laws and policies than liberalism does. Secondly, I argue that social disunity will happen if TRHY is used as a ground for making laws and policies. Thirdly, I discuss how TRHY can contribute to the environmental education in the private sphere. I finally conclude that this analysis can serve as a case study of what role Confucianism could play in modern governance.

180

B. Wong

10.2 Discussion 10.2.1 The Limitation of Political Liberalism and the Confucian Idea of TRHY In the western contemporary political theory, the leading version of liberalism is John Rawls’s political liberalism. In this theory, Rawls makes three assumptions. First, citizens in a democratic society inevitably disagree on political issues because they have different comprehensive doctrines that are formed by epistemological, metaphysical, and ethical beliefs. Secondly, a state is a coercive regime that restricts everyone’s freedom and deeply influences everyone’s life. Thirdly, a state should show respect for each citizen, thus every action of state should be based on reasons that are comprehensible to each citizen.2 Given these three assumptions, the laws and policies of a state are legitimate if and only if they are justified by public reasons that do not involve controversial epistemological, metaphysical, and ethical beliefs, and are thus acceptable to all reasonable citizens.3 In presenting his theory of legitimacy, Rawls offers two public reasons that are available for justifying environmental policies. The first public reason is “to further the good of ourselves and future generations by preserving the natural order and its life-sustaining properties” (Rawls, 2005, p. 245). The second public reason is “to foster species of animals and plants for the sake of biological and medical knowledge with its potential applications to human health” (Rawls, 2005, p. 245). These two public reasons justify environmental protections by appealing to the health of citizens. Serious pollution will lead to illness, which prevents citizens from being fully participating members of society.4 If the government has a duty to maintain a scheme of social cooperation in which everyone is able to contribute and participate, the government must also have a duty to maintain the health of citizens at a level that enables them to be full members of society. Accordingly, urban development should be restricted to the extent that it does not threaten the health of citizens, especially those citizens in the lower class. However, political liberalism is anthropocentric in a way that many environmentalists find unsatisfactory. For anthropocentrism, it means that all environmental 2

More precisely, these reasons should be accessible to each citizens, which implies that these reasons should be drawn from a political conception of justice that all citizens can recognize the normative fore of these reasons. See Wong (2022) and Wong and Li (forthcoming). 3 However, it should be noted that the approach of defending the requirement of public justification by coercion has recently become controversial. Some political liberals (cf. Bird, 2014; Lister, 2011; Quong, 2014) have argued that the requirement of public justification may arise even if no coercion occurs. These philosophers rather suggest other grounds for the requirement of public justification, such as civic friendship and justice. For a defense of the coercion-based account, see Wong (2020). 4 Precisely speaking, Rawls offers the third public reason, “to protect the beauties of nature for purposes of public recreation and the pleasures of a deeper understanding of the world” (Rawls, 2005, p. 245). However, as some political theorists argue, this public reason is “controversial” and “does seem to go beyond the political” (Bell, 2002, p. 706). Thus I shall not include it in discussion here.

10 Pursuing Unity or Creating Disunity? An East–West Complementary …

181

problems are fully understood and are possibly solved only in light of humanity’s own interests and for human own benefits. To political liberals, the fundamental “loci of value” are citizens, but not animals, plants, or nature. Environmental pollution is a problem that a government should be concerned with only when it harms the basic interests of some free and equal citizens. Otherwise, citizens are justified to look after their interests in any circumstance, frequently at the expense of the natural environment. It seems that “[at] its foundation, liberalism is concerned with the lives of individual humans, not with plants and animal species” (Coglianese, 1998, p. 56) This kind of anthropocentric view has been severely criticized by environmentalist as being too narrow (Latour, 2014; Tu, 2001; White, 1967). According to these environmentalists, every being in the eco-system has intrinsic rights and value, and therefore commands moral respect. Human beings should be removed from the center of law—and policy-making. Instead, the interests of animals, plants, and even the whole nature should be equally taken into account by the government. Justice should be extended beyond relations among humans so that we can talk about “justice to nature” (Low & Gleeson, 1998, p. 134). Given this limitation of political liberalism concerning environmental protection, some contemporary Confucians, such as Tu Wei-ming, argue that Confucianism can serve as a better ground for making green laws and policies, especially in the area of East Asia (Tu, 2001; cf. Tucker, 1991; Bai, 2012, p. 53; Chen & Bu, 2019). Confucianism is a perfectionist theory that originated in ancient China. Before the impact of the modern West, Confucianism is influential to the political ideology, social ethics, and family values of East Asian countries, such as China, Vietnam, Korea, and Japan. A distinctive feature of Confucianism is its holistic view of a good life. Confucians take junzi (君子) as a personal ideal that everyone should pursue, and this ideal is achieved by a step-by-step, gradual pursuit of personal self-cultivation, harmonized family life, and well-ordered society. This is famously stated by the Confucian classics Great Learning (): “only when personal lives are cultivated are families regulated; only when families are regulated are states governed; only when states are governed is there peace all under Heaven. Therefore, from the Son of Heaven to the common people, all, without exception, must take self-cultivation as the root” (Chan, 1963, p. 659). Hence, to Confucianism, there should not be a conflict between personal well-being and social harmony. Rather, a junzi’s well-being can be fulfilled as long as social harmony is achieved. Furthermore, the concern of junzi expands in concentric circles that begin with oneself and spread from there to include successively one’s family, one’s face-to-face community, one’s nation, all humanity, and finally the natural world and the larger cosmos. The ultimate goal of a junzi is the unity between Heaven and Humanity (Tian-ren-he-yi, TRHY), which means that human beings coexist with non-human things and they together form an organic, mutually reciprocal entity. According to Confucians, Tian (Heaven) does not only mean the visible sky. Rather, it includes the almighty ruling power, which manifests itself as changes in nature. Tian drives and regulates the unfolding of human life (Huff, 2017). Meanwhile, the behaviors of human beings constitute the dynamics of nature. Human beings should be considered as co-existing in the same great chain of being, which is an integral part of the cosmos.

182

B. Wong

In this respect, the ultimate goal of junzi is to assist the spontaneous transformation of the cosmos, and thus form a moral, affective relationship with all creatures (Zhuang, 2015, p.143). TRHY is the final state of affairs in this transformative process. Thus, in Confucianism, junzi should not view nature as having been created for their own use. Instead, junzi is an active participant in the cosmic process with the responsibility of enabling animals, plants, and nature to live freely and healthily (Tu, 2001: 249). This non-anthropocentric view of the environment can be seen in another Confucian classic Doctrine of the Mean (): Only those who are the most sincere [authentic, true, and real] can fully realize their own nature. If they can fully realize their own nature, they can fully realize human nature. If they can fully realize human nature, they can fully realize the nature of things. If they can fully realize the nature of things, they can take part in the transforming and nourishing process of Heaven and Earth. If they can take part in the transforming and nourishing process of Heaven and Earth, they can form a trinity with Heaven and Earth. (quoted from Tu, 1989, p. 77)

Given the ideal of TRHY, Confucianism is claimed to be more effective than liberalism concerning environmental protection. For example, environmental protection needs support from “green citizens”, who are citizens deeply concerned with the lives and health of animals and plants. A government has to promote environmental education to cultivate children to become green citizens. However, according to liberalism, since the use of public funding must be legitimate, the content of environmental education funded by the government must be restricted within a scope that could be justified by public reason. In turn, liberal environmental education can only appeal to public reasons, such as the health of citizens, when it teaches students to protect the environment. Under this anthropocentric education, students will have the motive to be concerned with the environment only when the pollution is serious to the extent that threatens the health of citizens. In other words, these students are not “green” enough. Confucianism, on the contrary, can justify environmental education that can teach students to become green citizens with a robust commitment to environmental protection. By teaching students the valuableness of TRHY, students will gradually learn to be concerned with the lives and freedom of plants and animals. These concerns are independent of self-interested concerns, such as the concern of whether preserving these plants and animals can benefit themselves. Hence, if a government introduces Confucianism, especially the Confucian idea of TRHY, into public education, the environmental concern of citizens will be more non-anthropocentric and will support a wider range of green laws and policies.

10.2.2 The Disunity Caused by the Unity of Heaven and Humanity Despite its progressive potential, I shall argue in this section that TRHY is not a proper ground for making environmental laws and policies. From the Confucian perspective, liberalism is over-restrictive in the sense that it restricts the scope of

10 Pursuing Unity or Creating Disunity? An East–West Complementary …

183

public justification within public reasons shared among citizens. But the political liberal restriction has its rationale that should not be overlooked by Confucianism. In a pluralistic society, citizens endorse different comprehensive doctrines, which consist of comprehensive beliefs, i.e., epistemological, metaphysical, and ethical beliefs. The validity of these beliefs depends on one’s comprehensive doctrine. Some citizens affirm the truth of certain comprehensive beliefs, but other citizens who endorse alternative comprehensive doctrines would think oppositely. Hence, citizens are expected to reasonably disagree on comprehensive beliefs. This can be contrasted with public reasons, which are widely accepted by citizens because these reasons are formed by values independent of any comprehensive doctrines. The persistent disagreements on comprehensive beliefs cannot be resolved by rational arguments, but only by oppressions. In the words of Rawls, “burdens of judgment” happen when citizens discuss matters of a comprehensive doctrine. Given these burdens of judgment, when a law or policy is made on a ground that could only be justified by a comprehensive belief, this law or policy could be reasonably rejected by some citizens in a pluralistic society. These citizens, meanwhile, must obey that law or policy. Otherwise, they will be punished by the government. In this respect, these citizens are coerced to accept this law or policy. They will feel that they are unfairly treated by the government because the political power, which is supposed to be collectively owned by all citizens, is exercised for the sake of partisan advantage of other citizens. To fight for fair treatment, they will then try to make, or elect politicians who promise to make, laws and policies that could be justified only by the comprehensive beliefs shared among these citizens. This enhances the opposition between citizens and undermines political stability. The problem, caused by making laws or policies on the ground of a comprehensive belief, can be called the problem of disunity. In light of this problem of disunity, liberalism believes that comprehensive beliefs should be excluded from public justification and that laws and policies should be made on the ground of public reason.5 An example is South Korea. In the 1970s and 80s, due to the limited number of public schools, some private religious schools were funded by the government. In these schools, apart from modern secular education, such as mathematics, science, and foreign language, these schools usually required students to attend at regular services of worship and more than one hour of religious curriculum weekly. Although every major religion, apparently, had an equal chance to be funded, this policy in fact favored the Christian sect because there were relatively more Christian-established middle and high schools. In other words, a significant amount of taxation was used to support Christian education. This partiality to Christianity was complained by many non-Christian groups. They tried to fight for more resources for the sake of

5

Precisely speaking, in the Rawlsian political liberalism, comprehensive beliefs are permitted to be introduced by citizens into public justification, as long as public reason can be introduced in due course to support the laws and policies that are justified by citizens’ comprehensive beliefs (Rawls, 2005, p. 453).

184

B. Wong

balancing the social influence of Christianity. This even created hostility among religious groups. For example, in 1984, Korean Buddhists questioned whether Christianity should be taught as part of the moral education like traditional eastern religions (Kim, 2007, p. 34). In brief, while the Korean educational policy failed to be publicly justified to non-Christians, it intensified the religious conflicts, and partly led to an outcome that Korea became a dormant volcano due to its internal religious oppositions. Considering the problem of disunity, non-anthropocentric environmental laws and policies may lead to political opposition if it could merely be justified by the Confucian idea of TRHY. For TRHY is only shared among citizens who are committed to Confucianism.6 To non-Confucians, the supernatural meaning of TRHY is unintelligible, and thus TRHY is an insufficient reason to justify laws and policies that are imposed on them. This problem of disunity should be taken seriously, even in the context of East Asia. Although Confucianism was a dominant culture in the history of East Asia, East Asian societies has recently become increasingly pluralistic, and, nowadays, Confucianism is merely shared among a sect of citizens in East Asian societies. I shall take South Korea as an example again. According to some contemporary Confucians, South Korea is the most Confucian country in East Asia (Kim, 2017, pp. 146–148). They, therefore, argue that Confucian ideas can serve as a public ground for making laws and policies in South Korea. I, however, believe that these Confucians underestimate the plurality of modern society. As the survey of the Association of Religious Data Archives shows, citizens who practice Confucianism are at best a minority cultural group in recent years in South Korea. The following graph shows the demographic distribution of religious populations in South Korea in 20207 :

6

For an example of environmental policy that could only be justified by TRHY, please see the end of the last section. 7 The Association of Religion Data Archives is a well-known source of online information related to international religions, founded in 2006. The data in the pie-chart is found in http://www.the arda.com/internationalData/countries/Country_124_2.asp. A similar observation is also suggested by He Baogang, who suggests that “more than 40% of the population in South Korea are Christian who might or might not practice Confucian traditions.” (He, 2010, p. 24) The diagram is drawn by the author himself.

10 Pursuing Unity or Creating Disunity? An East–West Complementary …

185

Religious demography in South Korea, 2020 Agnostic (1.9%)

Neoreligionist 14.2%

Others (0.1%)

Buddhist 24.6%

Ethnoreligionist 15.1% Confucianism 10.9%

Buddhist

Christian

Confucian

Christian 33.2%

Ethnoreligionist

Neoreligionist

Agnostic

Others

As shown above, only 10.9% of South Koreans say that they practice Confucianism, while 33.2% practice Christianity (including Roman Catholics and Protestants), and 24.6% practice Buddhism, let alone other ethnoreligious and neoreligionist groups.8 Given the significant size of other cultural and religious groups, these cultural groups would likely make reasonable dissents if the laws and policies could only be justified by Confucian values (Wong, 2019a; Wong 2021a). For example, suppose that, for the sake of cultivating more children to become virtuous junzi, a Confucian government makes an educational policy that all secondary schools must teach Four Books, the four Confucian classics. Very likely, this would invoke the rejections of other religious and cultural parties, which might argue that it was unfair to exclude their classics from the compulsory national curriculum. If the Confucian laws and policies may cause the problem of disunity even in the “most Confucian society”, South Korea, then they may cause worse outcomes in other East Asian societies. Some Confucians might argue that introducing Confucian ideas into public justification may not invoke political opposition because some Confucian values, such as “respect, reverence, trustworthiness, sincerity, and beneficence”, are “individual judgments about human goods” that are widely regarded as being valuable among people from different religions and cultures (Chan, 2014, p. 100). However, TRHY is not this kind of “freestanding” moral value. On the contrary, TRHY has distinctive metaphysical and ethical meanings that are unintelligible to non-Confucians. With respect to the metaphysical meaning, TRHY assumes that each living creature, including animals and plants, has an irreducibly non-physical 8

A similar critique is made by Tan Sor-hoon (2017, p. 526), who challenges Kim’s judgment that the whole East Asia is as cultural homogeneous as Kim describes. However, Tan agrees with Kim that South Korea is a culturally homogeneous Confucian country, but I argue that Kim’s judgment is too optimistic, even in South Korea.

186

B. Wong

property that enables living creatures to be animated by each other. Given this nonphysical property, human beings are not independent of nature, but an integral part that is embedded in nature and is in tune with the cosmic order. There is consanguinity between humans, Heaven, Earth, and the myriad things of nature (Tu, 2001, p. 250). In metaphysical terms, TRHY implies a kind of “naturalistic vitalism”, which maintains that physics and chemistry alone cannot provide complete explanations of the distinctive behavior of and the interactions among living things (Kim et al., 2009, p. 621). This view of naturalistic vitalism, however, is incompatible with reductionism, which believes that the natural world, including human beings, can be fully explained and predicted by the principles of physics and chemistry. While reductionism is widely accepted in natural science and natural science shapes the worldview of many citizens nowadays, TRHY expectably contradicts with the system of belief of many citizens. A policy that cannot be justified by any values except TRHY will thus be unacceptable to these citizens. For example, suppose that a government decides to preserve a large area of national parks for the sake of preserving some endangered species. From a scientific perspective, the preservation of these species has little benefit for citizens, but the government decides to do this because of its belief in a supernatural consanguinity between human beings and these species (Tu, 2001, p. 249). This policy of preservation would likely be rejected by many citizens who do not share this Confucian non-anthropocentric vision and rather prefer using the area of these parks to build new houses or shopping malls. Furthermore, TRHY is also a sectarian ethical ideal in a pluralistic society. According to TRHY, each living creature, including human beings, contains an “entelechy” that induces it to grow toward its ultimate form. Thus, the good life of a junzi does not depend on his wealth, reputation, and worldly achievement. Rather, a junzi lives well when he lives harmoniously with plants and animals in nature and tries his best to preserve their lives. He should strive for an ideal state of affairs that each living creature grows and lives freely. To Confucians, “it is natural to the human nature of his mind that he [strives for this ideal]” (Tu, 2001, p. 246). In other words, human nature is purposive in the sense that a human being has a natural end to transform the world to be a harmonious entity. This Confucian conception of the good life, however, is unlikely to be widely acceptable in East Asian societies. For example, citizens who are committed to a materialistic doctrine will not see the ethically interconnected relationship between themselves and nature. They, therefore, do not think their well-being ethically depends on the well-being of plants and animals. Similarly, Christian citizens will think that the God-human relationship is more important than the human-nature relationship in the pursuit of their well-being. These Christians may even believe that, according to the Bible, God permits them to be “indifferent to the feelings of natural objects” (White, 1967, p. 1205). Hence the ethical appeal of TRHY is controversial in a modern pluralistic society. Given the metaphysical and ethical meanings of TRHY, using TRHY as the only ground of public justification in the making of laws and policies will lead to the

10 Pursuing Unity or Creating Disunity? An East–West Complementary …

187

problem of disunity.9 I shall use the inclusion of TRHY into public education as an example again. This inclusion would undermine the legitimacy of the curriculum. Citizens may uphold a non-Confucian belief in the human-nature relationship or a non-Confucian conception of the good life. They may find the Confucian idea of TRHY unintelligible and thus do not think that serious education should include this kind of mysterious idea. However, if the government, for the sake of cultivating children to be green citizens, introduces TRHY into the curriculum of public education, then these non-Confucians are forced to support an educational regime that teaches children mysterious ideas. Even if the non-Confucians suffer no coercion to change their beliefs, they are nevertheless coerced to pay tax to support a curriculum that they reasonably disagree with. It does not mean that they think that TRHY is seriously mistaken. But they may think that, instead of TRHY, some values in their comprehensive doctrines are worth more to be taught. They will, thereby, likely feel that they are disrespected in the process of policy-making in the sense of “not being taken seriously, of not counting, of being unable to make…[their] presence felt or…[their] voice heard” (Frankfurt, 1999, p. 153). In short, their money is “robbed” to support a kind of education that they disagree with. Non-Confucians may, thereby, try to vote for politicians that promise to introduce other comprehensive values into public education, so that the public education can be more balanced, instead of being partial to Confucianism. This enables public education to become a battlefield among different religious and cultural groups. In fact, numerous scholars have argued that including controversial ideas in public education will undermine the unity of citizens in a democratic society (Galston, 1991: 246–248; Galston, 1995: 523–525; Burtt, 1994: 62–67; Burtt, 1996: 429–433; Tomasi, 2002: 202–212; Vallier, 2014: 225–254; Ebels-Duggan, 2013: 43–47). Ironically, before achieving the harmony between Heaven and Humanity, TRHY harms the harmony among human beings. Here Confucians may deny the importance of public justification. The problem of disunity assumes that the action of a state is legitimate if and only if it is not reasonably objectionable to all citizens. However, this conception of legitimacy is controversial. Some political theorists reject that public justification is necessary for justifying political coercion, and rather argue for a correctness-based conception of legitimacy (Wall, 2002, p. 386; Wall, 2013, pp. 488, 498n13; Enoch, 2013, pp. 175– 176; Enoch, 2015, pp. 130–134). It means that a law or policy is legitimate when it is justified by a correct reason, irrespective of whether all citizens can reasonably accept it. Every law, inevitably, has some objectors. The political authority of a law 9

However, not all Confucian ideas are as controversial as TRHY does. Joseph Chan suggested that Confucianism includes some virtues, such as respect, trustworthiness and beneficence, which are not necessarily committed to a comprehensive metaphysical and ethical worldview (Chan, 2014, p. 100). These virtues are widely regard as good behaviours by people from different religions and cultures. Chan, therefore, argues that it is legitimate for a state to promote these virtues. I agree with Chan that some Confucian virtues are compatible with public reason and are thus legitimate grounds for exercising political power. Nevertheless, these virtues are not closely related to environmental laws and policies. In environmental protection, TRHY, which is a comprehensive belief, is more likely to be questioned. Thus the focus of this article is whether TRHY, and other similar comprehensive Confucian beliefs, is a sufficient ground for environmental laws and policies.

188

B. Wong

or policy should not depend on the public acceptance of citizens. Rather, it should depend on the epistemic value of the reason that justifies it. Confucians may, therefore, endorse a correctness-based conception of legitimacy and use it to defend the legitimacy of including TRHY in environmental education. If environmental education invokes rejections from non-Confucians, then the government should not compromise because those non-Confucians get the truth wrong. Confucians may even argue that scientific theories, such as the theory of gravity, are taught in public justification, regardless of whether these theories are accepted by all citizens. What matters is that the content of education is justified by epistemically true reasons. This reply, however, overestimates the epistemic value of TRHY. Scientific theories are taught in public education because their epistemic truthfulness is guaranteed by “the consensus of the scientific community” (Barry, 1995, p. 161). TRHY, however, is unclear in terms of its epistemic truthfulness and does not have this kind of academic support. Also, this reply merely ignores the problem of disunity that will happen if TRHY is included in public education. As mentioned previously, the inclusion of TRHY will invoke the opposition of many religious and cultural groups, and thus result in severe disunity. Although state power may be sufficient in oppressing political resistance, ignoring the disunity and coercing the dissenters to support the government contradict the core value of Confucianism. Confucians have long rejected the use of coercive measures in governing a society. Although Confucians believe that a junzi’s way of living is objectively valuable to all human beings (Ivanhoe, 2013, pp. 52–56; Yao, 2000, p. 46), they also believe that people who practice this way of living should be willing to endorse it, be motivated to live by it, and enjoy this way of life. A junzi should “feel at home in [a virtuous way of life]”, but not being forced to live with it (Confucius, 2003, p. 29). In brief, voluntary endorsement is a central notion in Confucian ethics. Legal punishment is effective in coercing people to support a government, but it cannot change the individual’s heart or soul.10 Thus, even if a government believes that TRHY is an objectively valuable way of living, it should not “keep people in line with punishment” and coerce people to support the environmental education of TRHY. Rather, the government should “guide people with virtue” and wait for a day that people endorse TRHY voluntarily (Confucius, 2003, p. 8).

10.2.3 Two Possible Roles of TRHY In the last section, I argued that making laws and policies that are justified only by TRHY will result in the problem of disunity. However, I do not mean to deny that TRHY could make significant contributions to the green movement in East Asia. My point is that contemporary Confucians are unclear about the way of employing this 10

On this point, the Confucian view is similar to Locke’s classical argument in A Letter Concerning Toleration.

10 Pursuing Unity or Creating Disunity? An East–West Complementary …

189

idea. Instead of arguing that TRHY should be used to justify environmental laws and policies, I believe that TRHY should be used in the education and discussions in families and associations of civil society. In this section, I shall suggest two roles that TRHY could play in promoting environmental protection, and further use these as examples to show a restrictive application of TRHY. The first role of TRHY is a concept taught in private associations and education in a family. Since public education is supported by tax money which is supposed to be publicly owned by all citizens, the content of public education should be publicly acceptable. Private associations, however, are not subjected to this kind of restraint because it is funded by donators or private organizations. Accordingly, private associations are permitted to teach the ideas and values of a comprehensive doctrine in their curriculum. A Western example is parochial schools. Since they are funded by Christian churches, they are free to require students to read the Bible and learn Christian beliefs. This implies a way of including TRHY into education. Private schools have been common in East Asia. Numerous primary and secondary schools are funded by Confucian organizations. Rich Confucian merchants are also keen on donating money to subsidize primary and secondary schools. These schools are then key sites to cultivate children to become green citizens. By teaching TRHY and its related Confucian classics in their curriculums, these schools can teach students to think beyond the anthropocentric perspective and to be concerned with the independent interests of plants and animals. In brief, TRHY can be good materials for environmental education efforts that are carried out in the private sphere.11 The second role that TRHY could play is a concept for East Asian environmentalists to employ in debates and discussions in civil society. East Asian environmentalists can use this to show that the green movements are compatible with local cultural traditions. As previously mentioned, East Asian politicians often emphasize the right to development and argue that, due to their special cultural situations, this right should have priority over other considerations, such as environmental protection (Posner, 2014, pp. 37–38). For example, in China, environmental protection has always been given way to policies that lead to economic growth. Throughout the decades, the Chinese government has pursued policies of rapid industrial growth, which cause serious deforestation with its attendant problems of erosion and flooding, greatly increased water and air pollution, major water shortages, and on through the whole list of environmental ails (Weller, 2006, p. 68).12 Some Chinese developers even use the agricultural traditions in the Chinese culture to justify the deforestation of the rural area (Weller, 2006, pp. 25–30).13 Given this background, TRHY can be used by the environmentalists to show that the Chinese culture was not traditionally exploitative of nature. Instead of perceiving environmental protection as a kind of “western”, 11

Fir a detailed explanation of how private schools can enhance civic education, see Wong˘2021b). It does not mean that the Chinese rulers were not concerned with environmental protections. Since 2000, it has made numerous environmental laws and policies, but the influences are limited due to its one-party political structure. In view that there are few independent supervisory institutions, the environmental laws and policies always become empty talk. See van Rooij and Wang, 2014. 13 For the problem of deforestation in the Chinese history, see Elvin (1973, p. 121). 12

190

B. Wong

foreign product, environmental protection should be as an idea that can be traced back to TRHY, a core ideal in the Confucian culture with which East Asians are familiar. In other words, TRHY enables environmentalists to use a culture-sensitive strategy to defend environmental protection when they engage with opponents in debates and discussions that happen in civil society.14 Using a culture-sensitive strategy has two advantages. First, it prevents the opponents from stigmatizing the demand for environmental protection as “agents of foreign devils” and defamers of indigenous traditions. TRHY enables environmentalists to mitigate the feeling of resistance to the green movement, which is originated from Western society and organizations (Weller, 2006, p. 7). Secondly, building the practices of environmental protection on traditional cultural resources is more likely to lead to a moral commitment to these practices. East Asians who are culturally affiliated with Confucianism will have a long-lasting concern for the environment. In brief, the culture-sensitive strategy has been used by numerous political theorists when they promote Western political ideas, such as human rights, to non-Western societies (Bell, 1996; Esposito, 1994). The same strategy can be used when environmentalists engage with others in debates and discussions. An example can be used to illustrate these two functions of TRHY. In 2013, there was a controversy about building a new student hostel in the New Asia College of the Chinese University of Hong Kong (CUHK). One of the landmark buildings of the New Asia College was the New Asia Water Tower. The T-shape tower was located at the top of the green mountain without any similarly tall buildings around. Looking up from the bottom of the mountain, the tower was like a person standing straight in the vast nature and staring at the sky. This became an indispensable symbol of the New Asia College. However, since 2006, the New Asia College had planned to build a new eight-floor-high student hostel close to the tower. After completion, the tower would be largely blocked by the new building. This would make the tower like a short chimney of the hostel if we look from far. Many alumni of the New Asia College came out to protest this new hostel, and this resulted in a debate between the college and the alumni. The justification of the college mainly relied on the right to development. The college staff appealed to the shortage of student residences. While other colleges of CUHK had sufficient hostels that enabled their students to have accommodation for all four years, the New Asia College could only afford their students to have accommodation in one of their four undergraduate years.15 Hence, to provide a convenient learning environment for students, the college had strong anthropocentric reasons to develop a new student hostel. 14

In the words of Rawls, this strategy is a kind of “conjecture”, which is a way of persuasion in a liberal society. During a conjecture, a citizen persuades another citizen by giving another citizen reasons that are convicing from within another citizen’s comprehensive doctrine. For a discussion of conjecture, see Wong (2019b) and Wong (forthcoming). 15 The Chinese University of Hong Kong has nine colleges: New Asia College, Chung Chi College, United College, Shaw College, Morningside College, S. H. Hl College, CW Chu College, Wu Yee Sun College and Lee Woo Shing College. Their main duties are to provide accommodation, mentorship as well as opportunities of overseas exchange.

10 Pursuing Unity or Creating Disunity? An East–West Complementary …

191

Against this discourse, the alumni provided several reasons, such as aesthetic reason (e.g., the scene that a water tower stands alone at the top of the mountain is a remarkably beautiful scene that we should preserve) and procedural reason (e.g., the decision was made too quick; the college should do more consultations and consider other possible places to build the new hostel) (Chow, 2017). Interestingly, some alumni appealed to a Confucian reason that the design of the water tower represents the Confucian idea of TRHY (Chan, 2013). The water tower was like a junzi who always stood straight and maintained his dignity. Facing coercions and temptations, the junzi was still unwilling to compromise and bend over others. Nevertheless, such a junzi was a little being in the vast nature. When we looked from far, the water tower, which represented the junzi, was small, embedded in the huge mountain and the boundless sky. This conveyed a message that, although a junzi was a morally great person, he should always have a sense of humbleness toward nature. Instead of conquering nature and shaping it in a way he likes, a junzi should conceive himself as an integral part of nature and live harmoniously with the animals and plants surrounding him. The designer of the water tower believed that, by looking at the tower day by day, students would gradually learn the idea of TRHY and follow the Confucian way of life. Building the new hostel, thus, harmed this representation because it damaged the image that the tower stood aloof and conveyed a contradictory message that human beings should shape nature in whatever way that satisfies their demands. By connecting the rejection of the new student hostel with TRHY, the protestors successfully mobilized a great number of students and alumni. Many alumni were moved by the idea that the new student hostel would harm the cultural meaning of the water tower. Accordingly, the petition of protesting against the new student hostel received around one thousand signatures in a very short period of time. Numerous famous alumni also voiced out and were against the new student hostel. This case serves as a good example of applying TRHY in the discussion of environmental protection.16 The protestors used a culture-sensitive strategy to present their opposition to the new student hostel. The New Asia College was founded in 1949 by Confucian scholars such as Ch’ien Mu and Tan Junyi. Its general education emphasized Confucian culture and values, and thus many students and alumni were usually familiar with Confucian ideas like TRHY. Hence, by describing the original scene of the water tower as a representation of TRHY, the rejection of the new student hostel became particularly convincing to the students and alumni who learned TRHY when they were in the New Asia College. This example shows the two roles that TRHY could play in environmental politics. It was used as a concept for the alumni to teach other members in the New Asia College to be concerned with environmental protection and reflect on whether the right to development is overriding. Also, it was an effective tool for the environmentalists to relate their movement with the local cultural tradition and mobilize 16

Precisely speaking, it was not purely a green movement because the object that called for protection, i.e., the image of the stand-alone water tower, involves artificial building. Nevertheless, it still involves environmental protection and was against the development-oriented discourse.

192

B. Wong

people to join the protest. In brief, my main argument is that TRHY should not be used in the public sphere, e.g., using it as a ground for making laws and policies that influence the whole public. It, nevertheless, should be used in the private sphere, e.g., using it to persuade people to become environmentalists in family, private school, and social discussion.17 By restricting the appeal to TRHY in the private sphere, no political coercion is justified by TRHY, and non-Confucians will not be provoked. The problem of disunity can be avoided. Thus, a restrictive application of TRHY is a more pragmatic approach for Confucians to use this idea in the green movement.

10.3 Conclusion The right to development has long been dominant in East Asian politics. The contemporary Confucians’ appeal to TRHY enables East Asians to remember that, traditionally, the protection and appreciation of nature play a crucial role in the thought of their antecedents. However, is TRHY sufficient to be a moral ground for making green laws and policies that protect the right to environment? If not, what role should TRHY play in East Asian environmental protection? This issue has not been clearly explained by contemporary Confucians. This article fills the theoretical lacuna by explaining the site that TRHY should be introduced. It first reveals the distinctiveness of TRHY by an East–West comparative analysis. Compared with public reason in political liberalism, TRHY can offer a non-anthropocentric vision that justifies more progressive environmental laws and policies, such as introducing TRHY into public education. These laws and policies provide a robust defence for the right to environment. Nevertheless, given the pluralistic environment in East Asia, this way of governance will also lead to a problem of disunity that undermines the harmonious state that TRHY is supposed to achieve. I, therefore, suggest a paradox that Confucians have to face when they appeal to TRHY to justify non-anthropocentric green laws and policies—the pursuit of the unity between Heaven and Humanity will eventually result in the disunity among citizens. The better site for Confucians to introduce TRHY should be the private sphere, such as family, private school, and social discussion. These are the places where Confucians can educate green citizens to look at nature from a non-anthropocentric perspective. TRHY also enables Confucians to interpret the underlying meaning of the environmental movement in traditional cultures. In brief, in the controversy between the right to environment and the right to development, Confucianism and political liberalism together can form a coherent philosophical discourse that explains why urban development should be restricted and the environment should be protected. Political liberalism justifies 17

Here the protestors in the New Asia College might argue that the decision about student hostel is not that “private”. It is more like a “public” decision about the distribution of resources and opportunities in their community. I should clarify that “public” in this article is defined in a narrow sense. A decision is “public” when it involves the making of laws or policies of a government. Thus, the policy in an academic institution is still a “private” decision. I thank Francis Mok for suggesting me to clarify this point.

10 Pursuing Unity or Creating Disunity? An East–West Complementary …

193

green laws and policies on grounds that could be publicly acceptable to all citizens in the public sphere, whereas Confucianism uses its cultural resources to educate and persuade people about green citizenship in the private sphere. The protest against the new student hostel of the New Asia College indicates the usefulness of Confucian ideas in mobilizing an environmental movement in a cultural community. Finally, I believe that an implication of my discussion about TRHY is that it can serve as a case study of how Confucianism and political liberalism can form an integrative project. Some contemporary Confucians, such as Jiang Qing (2012, pp. 27–43), conceive the relationship between Confucianism and political liberalism as a competitive relationship, in the sense of which theory can provide a legitimate ground for a government to make laws and policies.18 Unless Confucianism is proven to be a better theory of legitimacy, the contemporary significance of Confucianism will be undermined. These contemporary Confucians therefore, focus on the flaws of political liberalism and present what a “Confucian state” is like. I, however, believe that the relationship between Confucianism and political liberalism should be a kind of division of justificatory labor. While political liberalism explains what rights should be protected and how political power should be exercised according to laws and policies, Confucianism explains how individuals should behave according to traditional Confucian values in contemporary situations. Political liberalism guarantees the basic rights for Confucians to live their own way of life, whereas Confucianism conducts citizenship education that reconciles citizens’ cultural commitment with their civic duties to the political liberal institutions. The relationship between these two theories should be complementary, rather than being competitive. The “division of justificatory labor” model is, I believe, a more promising approach for Confucianism to regain its significance, particularly in the area of citizenship education.

References Addink, H. (2019). Good governance: Concept and context. Oxford University Press. Bai, T. (2012). China: The political philosophy of middle kingdom. Zedbooks. Barry, B. (1995). Justice as impartiality. Oxford University Press. Bell, D. (1996). The East Asian challenge to human rights: Reflections on an East-West Dialogue. Human Rights Quarterly, 18(3), 641–647. Bird, C. (2014). Coercion and public justification. Philosophy and Economics, 13(3), 189–214. Burtt, S. (1994). Religious parents, secular schools: A liberal defense of an illiberal education. Review of Politics, 56, 51–70. Burtt, S. (1996). In defense of Yoder: Parental authority and the public schools. Nomos, 38, 412–437. Chan, J. (2014). Confucian perfectionism. Princeton University Press. Chan, W. (Ed.). (1963). A source book in Chinese philosophy. Princeton Univerity Press. Chan, Y. T. (2013). ,《明報》 , 26th May

18

Precisely speaking, Jiang Qing does not compare Confucianism with only political liberalism, but all kinds of democratic theories.

194

B. Wong

Chen, H., & Bu, Y. (2019). Anthropocosmic vision, time, and nature: Reconnecting humanity and nature. Educational Philosophy and Theory, 51(11), 1130–1140. Chow, P. C. (2017). ,《在乎》(頁63–64) 。牛津大學出版社。 Coglianese, C. (1998). Implications of liberal neutrality for environmental policy. Environmental Ethics, 20, 41–59. Confucius (2003). Analects, trans. Edward Slingerland. Hackett. Ebels-Duggan, K. (2013). Moral education in the liberal state. Journal of Practical Ethics, 1, 34–63. Elvin, M. (1973). The pattern of the Chinese past Harvard University Press. Enoch, D. (2013). The disorder of public reason. Ethics, 124, 141–176. Enoch, D. (2015). Against public reason. In D. Sobel, P. Vallentyre, & S. Wall (Eds.), Oxford studies in political philosophy (Vol. 1, pp. 112–142). Oxford University Press. Esposito, J. (1994). Political Islam: Beyond the green menace. Current History, 93, 19–24. Frankfurt, H. (1999). Necessity. Cambridge University Press. Galston, W. (1991). Liberal purposes. Cambridge University Press. Galston, W. (1995). Two concepts of liberalism. Ethics, 105, 516–534. Giorgetta, S. (2002). The right to a healthy environment, Human rights and sustainable development. International Environmental Agreements, 2, 173–194. He, B. (2010). Four models of the relationship between confucianism and democracy. Journal of Chinese Philosophy, 37, 18–33. Huff, B. (2017). Servants of heaven: The place of virtue in the Confucian cosmos. International Communication of Chinese Culture, 4(2), 271–298. Hurley, G. (2019). Sovereign debt and the right to development. In I. Bantekas & C. Lumina (Eds.), Sovereign debt and human rights (pp. 248–266). Oxford University Press. Ivanhoe, P. (2013). Virtue ethics and the Chinese Confucian tradition. In D. Russell (Ed.), The cambridge companion to virtue ethics (pp. 49–69). Cambridge University Press. Jiang, Q. (2012). A confucian constitutional order. Princeton University Press. Kim, C. (2007). Contemporary religious conflicts and religious education in the Republic of Korea. British Journal of Religious Education, 29(1), 31–43. Kim, J., Sosa, E., & Rosenkrantz, G. S. (Ed.). (2009). A companion to metaphysics, 2nd ed. WileyBlackwell. Kim, S. (2017). Public reason confucianism. Cambridge University Press. Latour, B. (2014). Agency at the time of the Anthropocene. New Literary History: A Journal of Theory and Interpretaiton, 45(1), 1–18. Lister, A. (2011). Public reason and political community. Bloomsbury. Low, N., & Gleeson, B. (1998). Justice. Society and Nature. Posner, E. (2014). The twilight of human rights law. Oxford University Press. Quong, J. (2014). On the idea of public reason. In J. Mandle & D. A. Reidy (Eds.), A companion to Rawls (pp. 265–280). Wiley Blackwell. Rawls, J. (2005). Political liberalism, expanded version. Columbia University Press. Sen, A. (1999). Development as freedom. Anchor Books. South China Morning Post. (2018). Building on peripheries of Hong Kong’s country parks: Solution to housing crisis, or paradise lost? https://www.scmp.com/news/hong-kong/health-environment/ article/2162350/building-peripheries-hong-kongscountry-parks Tan, S. (2017). Book review of Sungmoon Kim, public reason confucianism. Review of Politics, 79(3), 524–527. The Standard (2018), Carrie Lam leans towards country parks housing. https://www.thestandard. com.hk/breaking-news/section/4/109868/Carrie-Lam-leans-towards-country-parks-housing Tomasi, J. (2002). Civic education and ethical subservience: From Mozert to Santa Fe and Beyond. Nomos, 43, 193–220. Tu, W. (1989). Centrality and commonality: An essay on confucian religiousness. State University of New York Press. Tu, W. (2001). The ecological turn in new confucian humanism: Implications for China and the World. Daedalus, 130(4), 243–264.

10 Pursuing Unity or Creating Disunity? An East–West Complementary …

195

Tucker, M. E. (1991). The relevance of Chinese Neo-Confucianism for the relevance of nature. Environmental History Review, 15(2), 55–69. Vallier, K. (2014). Liberal politics and public faith. Routledge. Van Rooij, B., and Wang, A. (2014). China’s pollution challenge, New York Times, May 19. https:// www.nytimes.com/2014/05/20/opinion/chinas-pollution-challenge.html Wall, S. (2002). Is public justification self-defeating? American Philosophical Quarterly, 39(4), 385–394. Wall, S. (2013). Political morality and constitutional settlements. Critical Review of International Social and Political Philosophy, 16(4), 481–499. Weller, R. (2006), Discovering nature: Globalization and environmental culture in China and Taiwan. Cambridge University Press. White, L. (1967). The historical roots of our ecologic crisis. Science, 155(3767), 1203–1207. Wong, B. (2019a). A Non-Sectarian Comprehensive Confucianism?—On Kim’s Public Reason Confucianism. Journal of Social Philosophy, 50(2), 145–162. Wong, B. (2019b). Conjecture and the division of justificatory labour: A comment on clayton and stevens. Res Publica, 25, 119–125. Wong, B. (2020). Public reason and structural coercion. Social Theory and Practice, 46(1), 231–255. Wong, B. (2021a). Junzi living in liberal democracy: What role could Confucianism play in political liberalism? Philosophical Forum, 52, 17–28. Wong, B. (2021b). Let God and Rawls be friends: On the cooperation between the political liberal government and religious schools in civic education. Journal of Applied Philosophy, 38(5), 774–789. Wong, B. (2022). Accessibility, pluralism, and honesty: A defense of the accessibility requirement in public justification. Critical Review of International Social and Political Philosophy, 25(2), 235–259. Wong, B. (2023). Is it Sectarian for a Rawlsian State to Coerce Nozick?—On political liberalism and the sectarian critique. Philosophia, 51, 367–387. Wong, B., & Li, M. (forthcoming). Talk may be cheap, but deeds seldom cheat: On political liberalism and the assurance problem. American Journal of Political Science. https://online library.wiley.com/doi/full/10.1111/ajps.12770 Yao, X. (2000). An introduction to confucianism. Cambridge University Press. Zhuang, Y. (2015). Confucian ecological vision and the Chinese eco-city. Cities, 45, 142–147.

Chapter 11

Conclusion Francis K. T. Mok

Abstract In this short conclusion, I try to identify and discuss one issue found in many chapters of the book, that is, the tendency to start with the language of rights but end up appealing to a non-rights concept in defending the interests at stake.

If you are turning to this page, I suppose you have already read several chapters of the book. And you would probably agree with me that it is not possible to literally conclude all the issues and theoretical positions discussed in the chapters. As a result, by way of conclusion, I am not trying to argue with any author or to respond to any of their arguments. Instead, I would like to make use of this little corner of the book to share with you my couple of reflections after reading the chapters. A theme that unites all chapters of the book is the examination of the merits and limitations of the perspective (or language) of rights in addressing urban controversies. The importance of the concept of basic rights and the attractions of invoking human rights have been explained clearly in the Introduction (Yung) and Chapter 2 (Yu). I do not think I need to repeat here. In discussing the broad range of issues covered in the book, from traditional rights of indigenous people (Dupre), private property rights (over heritage) (Ying), animal rights (Yim), freedom over the use of public space (Tsang), rights of nature (Kwok), rights to development (Wong), to rights of (stonewall) trees (Mok), I noticed that many authors started with the discourse of rights but often ended up with a critical stance towards the assertive exercise of rights by the individuals or groups concerned. There are two possibilities here. The more obvious one is the general dissatisfaction with the adequacy or desirability of the concept of rights in addressing conflicts in urban issues. No wonder they all try to put forward theoretical approaches originated from Eastern philosophical traditions such as Confucianism, Daoism, or Buddhism. Notions from these traditions such as Ahimsa (non-injury or non-violence), Tian-renhe-yi (unity between the Heaven and the Humanity), defending by not contending,

F. K. T. Mok (B) Department of Social Sciences, The Education University of Hong Kong, Hong Kong, Hong Kong e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 B. Yung et al. (eds.), Rights and Urban Controversies in Hong Kong, Governance and Citizenship in Asia, https://doi.org/10.1007/978-981-99-1272-8_11

197

198

F. K. T. Mok

kong qi etc., are brought up in respective chapters for the important purpose of supplementing or even replacing the essentially Western-oriented language of rights. In fact, critique of the language of rights in general or human rights in particular, from either the Western tradition (e.g. communitarianism) or the Chinese tradition (e.g. Confucianism), is nothing new in academic discourses. Another possible explanation of the general skepticism over the assertion of rights by human beings is not so much a reservation regarding the language of rights itself as a caution against human supremacy or human tendency to expand further their domain of influence. What authors in many chapters are questioning is not only the usefulness of the language of rights, but the appropriateness of human beings asserting their interests, with or without using their language of rights, against other human or non-human entities. In a way, the declining popularity of the notion of human rights is concomitant with the diminishing weight we would like to attach to human interests as against the interests of non-human entities such as animals, trees, or nature in general. Those who are familiar with the notion of human rights should know that the discourse of rights was once very popular and proliferation of rights was generally welcome in the second half of the twentieth century. The idea of inalienable human rights has long been regarded as an indispensable conceptual tool that may empower individuals in defending themselves against the most severe kinds of injustices and atrocities. For an extended period of time, we were preoccupied with the image of human beings as vulnerable individuals or groups under the threats of totalitarian regimes, tyrannical majorities, ruthless market systems, or prejudicial cultural majorities. That is why we started with the fight for civil and political rights (the first generation of human rights), followed by the demand for socioeconomic rights (the second generation), and then came up with the recognition of cultural or collective rights (the third generation). As long as those sources of threats are there, we will still need the legal, political, and moral support conferred by the language of human rights. However, in recent years, it has come to our attention that although many human beings are subject to threats and oppressions, many pursuits of human interests, notably those asserted in the name of rights, could pose a threat to the legitimate interests of other human or non-human entities. In other words, we have to pay attention not only to the vulnerability of human beings, as individuals or as collective, but also the vulnerability of other human or non-human entities whose interests are being threatened or marginalized by human beings in an advantageous position. If attention to the former would urge us to seek conceptual tools that could empower the vulnerable human beings, attention to the latter would instead steer us to search for conceptual devices that tend to check against the assertiveness and possessiveness of human agents. The cautious stance towards the rights of human beings as adopted by many contributors to this book may therefore be accounted for by their sensitivity to the vulnerability of non-human entities such as wild animals, stonewall trees, nature in general and heritage which are often at the mercy of human inhabitants in the neighborhood. Even in the chapter on the rights of indigenous people, we are reminded

11 Conclusion

199

by the author that the indigenous people claiming this right are far from vulnerable. Just the opposite, they are viewed by many as even more privileged than the average citizens who never have the entitlement to build a small house for their families. It is this sensitivity that prompts them to look for conceptual resources that would revitalize humility and self-restraint on the part of human beings, rather than a conceptual tool that would reinforce the mentality of trumping over the interests of the weaker parties. However, the language of rights is still important as a fallback for the vulnerable parties, human or non-human. As manifested in many urban controversies discussed in this book, what we need is not arguments justifying further expansion of the human domain but theories and concepts that could defend the non-human entities which are not as eloquent and assertive as human right holders. Hopefully, reflections on various philosophical traditions, as have been done in this book, would show us the way towards a proper retreat or self-restriction of human activities so that genuine co-existence between human and non-human entities could be attained.