The Chinese Legal System

Globalization and Local Legal Culture

Pitman B. Potter

• Publisher: Taylor & Francis
• Year: 2005
• Print ISBN: 9780415236744
• eBook ISBN: 9781134561292
• Edition: 1
• Topic: Sciences sociales
• Subtopic: Études ethniques

The legal system of the People's Republic of China has seen significant changes since legal reforms began in 1978. At the end of the second decade of legal reform, law-making and institution-building have reached impressive levels. Understanding the operation and possible futures of law in the People's Republic of China requires an appreciation of the normative influences on the system, as well as an examination of how these norms have worked in practice.

1 Influences on the legal system

Norms and context

The legal reforms undertaken by the Chinese government since 1978 reflect the interplay of foreign legal norms with a local context. At the very outset of the legal reform process, legal reformers were admonished to learn from China’s past and from the experience of foreign countries.¹ In light of the limitations on the development of law and legal institutions during the early period of the PRC, the past was of limited assistance. As a result, the post-Mao law reforms placed heavy reliance on imported legal norms. Even where China’s legal reformers looked to prior PRC experience, this was strongly colored by foreign (mostly Soviet) ideals. Thus, the drafting of the 1978 Criminal Law and Criminal Procedure Law and the organizational laws for the People’s Courts and the People’s Procuracies relied primarily on prior drafts and enactments from the 1950s, which had been based largely on Soviet models.² The 1981 Economic Contract Law was influenced significantly by prior contract regulations, which were derived largely from the Soviet and Eastern European experience.³ The General Principles of Civil Law (1986) were based on relatively well-developed drafts begun during the 1950s and continued during the post-Mao period, which themselves were derived from the European and Soviet experience.⁴ Civil Procedure Law too was drawn largely from European models.⁵

As the economic reforms accelerated, China’s legal specialists looked increasingly to Europe and North America for inspiration. During the 1980s, legislation on such matters as environmental protection, regulation of foreign and domestic business, intellectual property, and civil procedure and arbitration, and a host of other areas drew increasingly on European and North American models.⁶ International agencies such as the UN Development Program and the Ford Foundation, as well as bilateral development programs with the USA, Canada, Japan and the EU, played a significant role in facilitating access to law models from abroad by Chinese legal specialists.⁷ The process of borrowing from abroad accelerated during the second decade of legal reform as a wider array of legal scholars and officials recognized that China’s economic reforms required the Chinese legal system to conform more fully with the international system.⁸ Securities regulation, tax reform, company law, and a range of other measures aimed particularly at regulating the domestic economy and China’s foreign economic reflected norms and terminology drawn from Europe and North America. As well, foreign influences in areas such as human rights, criminal law and procedure, and administrative law set the context and many of the parameters within which Chinese laws on these subjects were enacted and enforced. Increased attention to individual rights permitted development of tort law inspired by foreign models.⁹ Taiwan civil law also served as an important reference point for legal reform in China, as the writings of Taiwanese jurists and the publication of Taiwanese law books in China increased.¹⁰

The content of international norms: globalization and the spread of Liberalism

China’s efforts to borrow from foreign law models have coincided with the spread of liberal norms of private law and the rising discourse of unification of private international law and globalization.¹¹ The term “globalization” has been used to describe the contemporary spread of liberal ideals of free markets and private law relations around the world.¹² While globalization of private law is often juxtaposed against public law regimes aimed at a collectivist approach to social welfare,¹³ it is also proposed as an antidote to “crony capitalism” and other perceived ills in the economies of East and Southeast Asia.¹⁴ While the capacity of the liberal industrial economies to promote visions of globalization derives as much from political and economic power as from the inherent wisdom of the ideas themselves,¹⁵ there is little doubt that the influence of liberal ideals of private property have spread dramatically in the past decade. The circumstances of the CISG convention and the WTO agreements on intellectual property rights (TRIPs Agreement), trade-related investment measures (TRIMs Agreement), trade in services (GATS Agreement) and dispute resolution (the “Dispute Resolution Understanding”) are particularly noteworthy examples of the globalization of private law and private property regimes.¹⁶ The CISG convention establishes uniform default rules for international sales contracts that impose norms drawn from the liberal market systems. The WTO reflects inter alia the export of liberal notions of private property rights, particularly in the areas of intellectual property rights enforcement and protection of investment rights. The WTO’s Dispute Resolution Understanding, particularly its provisions for binding decisions by dispute resolution panels, reflects liberal norms of legal institutionalism.

The liberal legal norms associated with globalization constitute a belief system driven by changing historical conditions of socio-economic and political relations in Europe and North America. The essentially one-way direction by which these norms are disseminated around the world reflects the imbalances in political and economic power between developed and developing economies that characterize the current dynamic of globalization. In the case of China, however, the effects of globalized legal norms are confronted by powerful forces of local culture.

Local norms and conditions: the role of legal culture

The influence of local norms and conditions is expressed in part through local legal culture. The efforts of numerous scholars to apply definitional precision to the concept of legal culture have succeeded mainly in underscoring its elusiveness. Drawing on the interplay of sociology and political science, Friedman defined legal culture in terms of customs and opinions, and ways of thinking and doing about the law.¹⁷ Ehrmann’s review of Friedman’s initial explorations views legal culture as essentially a variant on political culture but in the realm of law.¹⁸ Lubman has applied the Friedman approach more specifically to the study of law and legal culture in the PRC and juxtaposed it with functional approaches,¹⁹ while Glendon takes Ehrmann and Friedman a step farther still in an effort to identify specific bases for comparison between different legal systems.²⁰ More recently, Varga has explored the term by reference to a challenge/response paradigm in the context of comparative perspectives ranging from the legal anthropology of Gluckman and Diamond to the civil/common law dichotomy and ultimately the Marxist revolutionary rejection of legal culture.²¹ Each of these approaches underscores the importance of local values and norms in the development of the belief system that informs local systems of law.

The application of international liberal models of law and legal institutions to China’s circumstances is affected by local contexts, particularly political imperatives and the reception of legal norms by individual specialists and by groups in society.²² Mao Zedong’s suggestions to the contrary notwithstanding, China is not a blank slate upon which can be written the normative preferences of the regime, imported or otherwise. Rather, the effect of imported law norms on local behavior and attitudes in China depends in part on the extent to which the norms of the legal regime resonate with existing values. The survival of customary norms despite new institutional arrangements is a salient factor in political culture of modernizing societies, and it no less evident in the area of Chinese legal culture.²³ Whereas indigenous legal norms may emerge gradually through a process of formalization of customary norms,²⁴ where law norms are imported, compliance requires that these imported norms accommodate local norms and practices.

The reception of imported law norms may also depend on the extent to which these respond to social and economic needs. Where traditional relational norms are ineffective to manage changing social and economic conditions, new norms may emerge as an alternative.²⁵ Thus, local acceptance of imported law norms may depend on a process by which traditional norms that are unresponsive to new realities are discarded (“delegitimiza-tion”) and replaced by new norms as part of an evolving belief system (“transvaluation”).²⁶ As increased complexity in social and economic relations permits creation of increasingly diverse and broad relationships beyond those of kinship and community, informal and subjective relational norms may give way to norms of formality and objectivity.²⁷ Thus, in China, compliance with imported law norms may depend not only on their accommodation of traditional norms and practices but also, paradoxically, on their displacing traditional relational norms with norms of formality and objectivity in response to new socio-economic conditions and the perceived needs of members of society that result.

The reception in China of largely imported legal norms entails necessarily an interaction of international and local values. In this regard, it is useful to recall first that the liberal notion of restraining state power conflicts strongly with the views of many in the post-Mao period (and earlier) that a strong state is essential to China’s development.²⁸ Chinese legal scholars and officials today remain apprehensive about the applicability of Western legal norms to China.²⁹ Official statements about the proper role of law in contemporary China suggest that Chinese legal culture draws on a reservoir of Chinese tradition derived from Confucianism and its assumptions about authority and hierarchy in social organization.³⁰ While Confucianism and the collectivist norms that it has engendered have been severely criticized by many contemporary Chinese thinkers as overly authoritarian and repressive,³¹ these remain powerful restraints on the penetration of foreign legal norms associated with liberalism. The traditional supremacy of familial and personal ties over institutional obligations remains strong, and the general absence of social ideals of individualism affects the selection and application of foreign legal norms.

Local norms in China derive from traditional values on social, economic, and political relations, and also from local conditions. Accepting that Chinese society is intersected by divisions of political and economic status as well as gender, age, education, etc., we may expect differences of world view and legal culture among disparate groups in society.³² While legal reform was seen early on in the reform process as inseparable from the political system,³³ local social and economic conditions have gradually come to take on greater importance. Legal reform is presented as a political consequence of changing socio-economic conditions.³⁴ While it is the Party/state that determines China’s progress in the march toward socialism,³⁵ recognition of this progress nonetheless requires that the discretionary political power exercised by the state under conditions of class struggle must yield to more formal processes associated with law. By the mid-1990s, the discourse of legal reform recognized changing socio-economic conditions and posited a civil legal culture that suggested limits to intrusion by the state.³⁶ While the specific effects on local value systems stemming from the transformation from the planned economy to a market economy remain uncertain, Chinese scholars have noted the importance of building social values grounded in morality and civility and expressed in part through law.³⁷ While official views that China’s conditions justify distortions and denials of human rights often reflect hackneyed arguments aimed at protecting the regime from criticism for denying to Chinese people basic human rights widely considered to be universal, local conditions are still seen as the foundation for rights and other legal norms.³⁸ Indeed, it is perceived that changes in local conditions, namely the transition to a market economy, justify enforcement and equality of rights.³⁹ Recognizing the limits imposed by China’s public law tradition on the use of law to support economic growth, Chinese scholars have called for a new approach that might reconcile private and public law paradigms.⁴⁰

Components of legal culture in contemporary China: tradition, governance and society

Legal culture in contemporary China reflects intersecting influences of tradition, governance, and society. Traditional norms provide a context against which operate the norms of contemporary legal culture. Governance provides the context for official legal culture, while society provides the context for popular legal culture. As I have suggested elsewhere, significant tensions exist between official and popular legal culture in China,⁴¹ althou...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Preface
• Acknowledgements
• Introduction
• 1: Influences on the legal system
• 2: Legal institutions
• 3: Contract law
• 4: Property
• 5: Human rights
• 6: Foreign economic relations
• Conclusion
• Appendix A: Table of laws, regulations, and treaties
• Notes
• Bibliography