[Copyright 2016 Helen Jiang. Please indicate the source when reposting.]
Recently I have finished reading an incredibly illuminating book titled Legal Orientalism. It is an ambitious legal and historic inquiry from the author Teemu Ruskola, who investigates the formation of Orientalism from a postcolonial legal perspective, i.e. how the lawlessness become default understanding of “Chineseness,” how a European tradition of philosophical prejudices about Chinese law developed into a distinctively American ideology of empire, and how such discourse is circulated globally, yet the Euro-American rule-of-law has become a “civilized” legal model for every state to emulate. Readers who are familiar with Fukuyama’s The End of History and The Last Man, or The Origin of Political Order may find Ruskola’s account unexpected but intellectually riveting. I would recommend it to anyone who finds himself stuck in a stereotypical view of China and Chinese law.
Defining Rule-of-Law, and Does it Matter
Despite of the fact that rule of law is almost universally recognized as the aim of legal reform, legal community has not yet reached an agreement as to what it actually entails. Legal theorists have developed several definitions of rule-of-law, varying from “thin”-“thick” to “substantive”-“instrumentalist” versions.
But there are at least two things we can say certain about rule-of-law.
For one, the discourse of rule-of-law is always connected with legal Orientalism. The Orient, studied as the “Other” of the West, are conceptualized as despotic with a rule-of-man system, where people are incapable of appreciating the ideas of democracy, individual rights or rule of law. Conforming to the international standards, or in other words, adopting a Euro-American rule-of-law system is fundamental on their path to modernity, whose “signal marker” is the emergence of the real law (Ruskola, 6).
Secondly, ambiguous definitions render this terminology neutral, hence politically appealing—rule-of-law is desired and propagated by all governments, however drastically they diverge on the ideological spectrum. A case in point is that both China and the US use rule-of-law rhetoric yet their agenda are utterly different: rule-of-law is desirable for China because it hopes to attract more foreign investment by creating an efficient, fair and transparent legal environment. Whereas U.S. law and development program in China presupposes a spillover effect: establishment of rule-of-law leading to the creation of a more democratic political institution (Ruskola, 13). US State Department has always treated Rule of Law Initiative in China as part of their human rights policy and incorporated substantive legal rights.
Nonetheless, Ruskola points to a popularly held definition, i.e., “…a rule of rules: a system of neutrally administered legal sanctions and incentives that provide the basis for an orderly modern society” (14). It is widely accepted because it lays out minimum requirements for any system of rule-of-law: a reasonably ascertainable body of laws, and the institution capable of applying those laws in a reasonably consistent manner (Ruskola, 162). In other literature it is also termed the “thin” version of rule-of-law.
The assessment of the value and efficacy of rule-of-law varies in different times and under different administrations.
Since the Opium War, China has been making great efforts learning from the West, including establishing and reforming its legal system up till today. Particularly, Republics of China (“RoC”) under Guomindang (“GMD”) designed a scientific legal system modeled on European civil law tradition, and invited American legal scholars such as Roscoe Pound as advisors of this reform. RoC had other agenda behind the reform, such as to get continuous financial and military support from the U.S. government, and “to defeat long-lived Orientalist prejudices and to show that China was in fact fully capable of establishing a system of rule-of-law” (Ruskola, 201). In this sense, the RoC views Western rule-of-law as exemplary, a model to copy and emulate. Despite of the political rivalry and drastically different ruling ideologies the Chinese Communist Party (“CCP”) has compared to those of GMD’s, the contemporary China under CCP seems to have adopted a similar perception towards the rule-of-law. As Ruskola put it, China has “juridified” itself, meaning China has been absorbed into the modern international legal system (28), partly, and probably mainly, due to China’s efforts of “self-Orientalization,” typically by joining the WTO. Rule-of-law as a desirable system becomes more apparent when the CCP added the principle of rule-of-law into the 1999 Constitution, making it an official governing policy. The PRC White Paper on Rule of Law issued by the State Council does not shun away from its endorsement of the rule-of-law as a symbol of development of a political civilization and the crystallization of “human wisdom… desired and pursued by people of all countries” (Ruskola, 198).
On the flip side, there are abundant criticisms on rule-of-law, along with its Orientalist assumptions and implications. Rule-of-law, though maybe politically neutral, as a principle it was criticized as too broad and all-encompassing, thus was too obscure to apply in societies outside the western democratic context. The dichotomy between rule-of-law and rule-of-man obscures the existence of various legal traditions and reduced the global legal labyrinth to a simple civilized and non-civilized forkroad. The aspiration and reform towards rule-of-law is at heart the extension of western imperialism based on an Orientalist perception—conquering countries ruled by men and replacing them with rule-of-law, which is no less a particular institution as rule-of-man. Furthermore, the virtue of rule-of-law has never been fully examined and justified, in Ruskola’s words, it is “a universal good-in-itself that requires no justification beyond itself” (58). Therefore some legal scholars shift their focus of Chinese law studies from asking “is there rule of law in China” to “should there be rule of law in China?” (Ruskola, 58) The change of inquiry is a recognition that rule-of-law system is not universal and that there are things that rule-of-law is unable to achieve.
Matthew Stephenson’s paper A Trojan Horse Behind Chinese Walls discusses, inter alia, the drawbacks of establishing the rule-of-law in a society like China. This initiative involves building an independent judiciary, providing better legal education, better trainings of judges and lawyers, and generating widespread support for further reform from the public. Rosy as it may sound, even assuming a rule-of-law system is finally established, the instrumentalism created by the rule-of-law is inherently anti-reform, as the conservative elites would make use of the better trained lawyers to block changes that threaten their interests. Rule-of-law’s emphasis on the formal aspects of contract law and property protection as well as legal channels of dispute resolution may disrupt the pre-existing informal mechanisms which are more accessible to the poorer population. The efficacy of a rule-of-law system in China is doubtful too, as China already appears to fend off any possible liberal spillover into political sphere through creating institutional “firewalls”, in other words, by separating the rules applicable to foreign matters.
My take on this debate is that we shouldn’t indulge ourselves in hairsplitting the virtue and vice of rule-of-law in a pure metaphysical or ideological level, neither is it wise to reject rule-of-law as a neo-imperial institution. Rule-of-law entails many universally endorsed features such as predictability of rules, consistency of legal application, equal treatment, etc. It should certainly be understood in more substantive terms, such as the requirement of human dignity, fairness, protection of individual and property, etc. The real issue in face of the leading reformists in a country is how to translate the value of rule-of-law into its own, meanwhile understanding fully its limitations in a different cultural and historical context.
Provincializing Rule-of-Law: No More “Universal” Cliché
The Anglo-American perception of the international legal regime is binary, distinguishing a modern and mostly Christian West from a despotic and non-Christian Orient. The former boasts a rule of law whereas the latter is characterized by rule of men. The values and rules of the former are universal, while the latter represents, juxtaposed to such universality, certain type of particularity. Consequently, whatever is termed “law” in the Orient is anything but rule of law in the modern sense, and should eventually be civilized and included into the universal system.
Against this backdrop, to provincialize the US law in general is to “decenter” Western analytical categories, to stop fitting facts of one system into the confines of the other through comparison and contrast. To provincialize is to re-position the two legal orders in a particular history of the universal. Under this paradigm, Anglo-American law is no longer the standard, but merely one part of amid the entire global legal system.
It might be helpful to do a case study here. If we apply a provincialization approach to US corporate law, it means we must “listen to both Confucian and [western corporation] contractarian stories carefully to learn what they tell and what they omit and what kinds of legal subjects they summon into being.” (Ruskola, p.102) It also means to recognize US corporate law as one way of conceptualizing corporations, among many other configurations. At the end of the day, the two legal orders based on divergent ideologies have “a notable functional convergence.” (Ruskola, p.104)
US corporate law believes corporations are an aggregation of individual units formulated by a nexus of contracts. Traditional Chinese clan corporations are normally perceived as collective entities operating under Confucianist ideology in pursuit of collective good. As Ruskola eloquently put, “the Orientalist story of Chinese law is one where kinship overwhlems the entire system, seemingly crowding out even the conceptual possibility of the corporation as a legal form.” (p. 85) Inevitably, comparison like this leads to a scenario where Chinese family law governing clan corporations is positioned vis-à-vis US corporate law, with a conclusion that the particular Chinese family law is to be analyzed in the light of “universal” discourse of corporate law. Consequently, Chinese family law is understood yet simultaneously misundertood through the lens of legal Orientalism.
Instead, by provincializating US corporate law, we would see the typical altruistic, paternalistic elements featured Chinese law are in fact no more than what what commonly associated with family obligations, and those features may be found in any type of corporate law in any legal system.
These two legal orders, however distinctive they each appear, function in a way to adapt to particular needs and problems in a certain society within certain period of time. Several functional similarities are identified as follows.
First of all, both laws have to deal with issues regarding family. It is apparent that operation of Chinese clan organizations revolves around families and kinship groups, yet family law plays an important role in US corporate law as well. Disputes in family businesses and close-held enterprises are adjudicated among family members, resulting in re-adjustment of domestic relations.
Second, both legal orders are structured based on an altruistic assumption. As Confucianism treats family as one single body, family heads in China are believed to be naturally capable of subordinating their selfish desires to the good of the family and community, hence are infallible. In a similar vein, directors and officers are entrusted to manage corporation affairs for the best interests of the shareholders. Typically, the “business judgment rule” is formulated with an underlying assumption, namely, individuals can act in a selfless fashion to further the greater good in society.
Third, both laws aim to safeguard the common welfare of corporations. Function of US corporate law is to provide default terms to fill the blanks had the parties fail to negotiate complete contracts, or to provide what they would have bargained for had they anticipated the problems beforehand. The same holds true for Chinese family law regulating clan organizations.
Fourth, to maximize common welfare and utility, both systems impose fiduciary duties on managers. Such rules are inherently paternalistic, as they appear to have “some special ‘insight into the characteristics of people’s utility functions.’” (Ruskola, 102). Another case in point is mandatory disclosure requirement of public companies, the purpose of which is to create a more stable and transparent securities market, and a less volatile investment environment.
In addition, other functional equivalents of US corporate law detected in Chinese family law include centralized management separate from ownership, certain level of free association under the seemingly strict genealogy, feature of legal personality where clan corporations can sue in court, the constant attempt of aggrandizing the size of clan property and trust by clan members, the fact that proceeds can be distributed and transferred, etc.
To sum up, provincialization of the US corporate law is an acknowledgment that it is essentially particular. To make sense of its formulation requires context, the same way Chinese family law should be understood and construed. US corporate law is no more than one solution to the common social and legal conundrums that are faced by peoples across cultures and regions, and one constituent of the global legal history and its development.
Legal Orientalism: A Historical Inquiry
Ruskola derives the term “legal Orientalism” from postcolonial literature on “Orientalism”, a derogative perception of the East from the West, and focuses on the legal aspects of this discourse. To use his own words, “by the term legal Orientalism, then, I refer on the most general level to a set of interlocking narratives about what is and is not law, and who are and are not its proper subjects” (Ruskola, 5). Through tracing the history of American extraterritorial jurisdiction and indirect imperialism in China, Ruskola analyzes how the West started out treating Chinese “law” as an object of their comparative study, how such comparative knowledge was then circulated in a global level, and was over time transformed into a conviction and a regime of legal institution generating various effects under different historical contexts. (10)
One source of legal Orientalism comes from comparative legal studies, where Chinese law is normally defined and examined as the “Other” of the Western law. Chinese law is viewed as exclusively penal and despotic, such as the codes in the past dynasties. Also, since Chinese dynasties were ruled by emperors, Chinese law was essentially a rule-of-men system, anything but the “real law”—where the state should be constrained and people protected from arbitrariness.
Legal orientalism is also a concept reflecting the cultural distance between the East and West. In post-Cold war era, law became predominant and was deemed an institution to be universally applied; western political order’s close association with rule of law in turn makes the liberal democratic order universal. Culture is inherently particular, as they are dispersed and lack of a common feature. How particular the Chinese system is hence relies on how distant it positions itself vis-à-vis the liberal culture.
Ruskola then moves beyond the epistemological level and looks at the material practice of legal orientalism. The United States did not establish any colonies in China as what the European imperialists did during the Opium War. Yet the signing of the Treaty of Wanghia between China and the United States, one of the many unequal treaties China was forced to sign at that time, kicked off American indirect imperialism in China—the Treaty allows extraterritorial jurisdiction of American law to be applied to US citizens in China. Caleb Cushing, the mastermind of this Treaty, successfully justified it using the rhetoric of legal Orientalism, contending it would be ignominious and humiliating for US to submit itself to Chinese jurisdiction, which was characterized as despotic and arbitrary by the Europeans. From then on U.S. turned from a victim of European imperialism to a global champion of institutionalizing Anglo-American legal order in the Orient.
Yet in reality, the consular courts in China were inefficient and the judges incompetent. The U.S. Court for China established in 1906 by the Congress operated with “the plain weirdness” under the laws of Alaska, codes in the District of Columbia, general congressional acts, even common law in colonies prior to the Declaration of Independence (Ruskola, 7). While the U.S. Court for China applied American laws all the time, the fact that judges had to ascertain the applicable law before an excess of laws and that the highest law of the land—the U.S. Constitution—was not applicable to the “District of China” appear erratic, contradictory and hardly lawful.
The International Mixed Court in the Settlement in Shanghai, which was supposed to be a Chinese court applying Chinese law in disputes involving Chinese defendants, ended up fashioning its own law by foreign laypersons as assessors of the Court, and enforcing such law directly on the Chinese population. All of these practices were justified by the conviction that China itself is a lawless place. As Ruskola accurately put, this is “a spectacular instance of legal Orientalism’s capacity to produce the conditions that validate it in the first place” (191). As such, the rhetoric of legal orientalism and its illocutionary effects were finally built into the institution of international law.
Ruskola sees this moment as the vanishing point of the distinction between representation of the Chinese law through the lens of legal Orientalism and the Chinese law itself, as “the former became the latter” (27). The discourse thus turned concrete and China as a lawless place became a legal fact, which in turn was used to justify China’s particularity and its exclusion from the rest of the world. (Ruskola, 11)
The Chinese Exclusion Case and the anti-Chinese immigration laws passed by the Congress at the end of the 19th century are typical examples of how legal Orientalism as a legal fact helps justify the exclusion of Chinese immigrants. It was believed that Chinese immigrants are incapable of self-governance and appreciate individual rights and rule-of-law required by U.S.’s republican form of government.
At this point, U.S. successfully established itself as a political system with universal and exemplary values, a paradigmatic model to be readily imitated by other polities. Meanwhile China became its antithesis. Deeply rooted in the long tradition of European prejudices on oriental despotism, U.S. developed a better form of legal imperialism in China, and entered into a crucial stage for the export of U.S. law and globalization of modern legal system.
As of today, even though we find ourselves in an open global society where diversities are embraced, legal Orientalism is far from downplayed. In fact, its impact becomes stronger and broader.
Now, my previous blog posts mentioned some personal encounters with the American students, lawyers, or politicians I met during the past years, as well as my responses and frustrations towards some of their comments. Please bear with me if you find my repeating myself here. And also note that what I said here is definitely not the single accurate answer to all the confusions, as everything about China is rather complex and highly nuanced.
So basically three issues regarding China most frequently come up: Xi’s heavy-handed anti-corruption campaign, persecution on criminal defense lawyers or dire human rights situation in general, and aggressive foreign policy under Xi Administration. Commentators often compare those measures to the despotic rules of Chinese dynasties, or the extreme deprivation of freedom of speech during the Cultural Revolution—a classic interpretation based on legal Orientalism. Yet Xi’s measures should not be explained as simple as enriching his personal power. Organic change in China is extremely incremental, given that the population of the poor, the rural residents and the less educated is extremely huge. Democracy’s magic in America cannot easily be transplanted on Chinese soil. Xi Administration may simply have chosen the way they deem most efficient—as all other leaders in a country do—only that the way they chose is not the American style democracy which the U.S. deems universal.
Human rights situation in China is characterized as abysmal—criminal defense lawyers were detained and charged, corrupted officials are arrested and convicted without due process. Admittedly, China’s way to deal with criminal suspects is draconian, and the system is rather opaque. Yet the media and critics are so readily jumping to the conclusion, almost by default and before getting to know the facts cold, that the defendants were persecuted unreasonably by the government.
Finally, the establishment of Asian Infrastructure Investment Bank (AIIB) was perceived as a challenge of American universality and its hegemonic status, thus Washington decided not to engage with it through portraying China as a bully in the Asia-Pacific region that does not abide by the “universal” market rules and monetary policies.
The intensifying effect of legal Orientalism may be attributed to the polarization of Sino-U.S. ideological divergence, or Chinese government and people’s engagement with “self-Orientalization.” But whatever the reasons, legal orientalism will keep playing a big role in formulating the bilateral relationship, and American perceptions and misperceptions of China.
[Copyright 2016 Helen Jiang. Please indicate the source when reposting.]