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| Project Details |
| Funding Scheme : | General Research Fund | ||||||||||||||||||||||||
| Project Number : | 14610918 | ||||||||||||||||||||||||
| Project Title(English) : | Chinese Legal Thought and the World: Reversing the Global Flow of Knowledge | ||||||||||||||||||||||||
| Project Title(Chinese) : | 中國法律思想的输出：改寫全球知識流動方式 | ||||||||||||||||||||||||
| Principal Investigator(English) : | Prof Seppaenen, Aaro Samuli | ||||||||||||||||||||||||
| Principal Investigator(Chinese) : | |||||||||||||||||||||||||
| Department : | Faculty of Law | ||||||||||||||||||||||||
| Institution : | The Chinese University of Hong Kong | ||||||||||||||||||||||||
| E-mail Address : | sseppanen@cuhk.edu.hk | ||||||||||||||||||||||||
| Tel : | 39431066 | ||||||||||||||||||||||||
| Co - Investigator(s) : |
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| Panel : | Humanities, Social Sciences | ||||||||||||||||||||||||
| Subject Area : | Social and Behavioural Sciences | ||||||||||||||||||||||||
| Exercise Year : | 2018 / 19 | ||||||||||||||||||||||||
| Fund Approved : | 350,356 | ||||||||||||||||||||||||
| Project Status : | Completed | ||||||||||||||||||||||||
| Completion Date : | 30-6-2022 | ||||||||||||||||||||||||
| Project Objectives : |
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| Abstract as per original application (English/Chinese): |
China is commonly seen as an importer of legal thought rather than as its exporter. Scholarship on Chinese law examines the relationship between Chinese law and global legal thought almost exclusively in terms of the reception of foreign legal thought into China. This oversight masks an important recent trend in the globalization of legal thought. Each year, the Chinese government trains hundreds of lawyers from developing countries in aspects of Chinese law and sends missions to developing countries to provide assistance on law reform. While there exists some scholarship on the global relevance of specific Chinese legal institutions and development policies, no sustained attempts have been made to assess the global relevance of Chinese legal thought.
To address this oversight, this project constructs a Chinese mode of legal thought through a comparative legal theoretical inquiry, and examines Chinese efforts to disseminate information about it in developing countries. A mode of legal thought refers to the legal vocabulary, institutional arrangements and the style of legal reasoning in a given legal system. It is, hence, a more foundational category of legal theoretical analysis than the study of particular legal rules, legal institutions, political ideology, and the rule of law. The present project constructs a mode of contemporary Chinese legal thought through: (i) a survey of theoretical and comparative Chinese legal scholarship; (ii) analysis of a selection of people’s courts’ decisions and; (iii) study of policy statements on adjudicative techniques and other elements of Chinese legal thought. The project also examines how Chinese law is actually portrayed to foreign lawyers in Chinese legal development cooperation.
This project establishes a theoretical framework for examining the global policy relevance of Chinese legal thought. Chinese legal scholars and development organizations have identified the informal use of power and the informal “local knowledge” about such uses of power as distinct elements of the Chinese legal system. In contrast to advocates of liberal legal thought in the West and in developing countries, Chinese legal scholarship and policy documents embrace this form of knowledge as a valuable governance tool in its own right. Such anti-formal pragmatism stands in stark contrast to even the most pragmatic forms of legal thought promoted in Western legal development assistance and in Western legal scholarship. Finally, the very fact that legal knowledge now flows from China to other developing countries calls for a profound perspective change to our understanding of the globalization of law.
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| Realisation of objectives: | 1. The first research objective yields a (relatively) new method for studying the globalization of Chinese and other forms of law and legal knowledge: rhetorical theory. This method is discussed in an article entitled “Chinese Legal Thought on the Global and the Domestic Stage: A Rhetorical Study” (15,000 words), which is forthcoming with the Asian Journal of Comparative Law in 2023. As this article argues, the study of the global relevance of Chinese legal thought calls for a close examination of various genres of Chinese ideological and legal speech. This is because different statements in Chinese ideological and legal speech aim to achieve different things. Whereas statements about the global relevance of Chinese legal thought are extremely ambitious in some genres of Chinese ideological speech, other genres of speech in China neither seek to establish clear distinctions between Chinese and foreign legal thought nor argue that Chinese legal thought constitutes a paradigm-changing improvement to global law. The forthcoming article explains these differences through the perspectives of rhetorical theory. The globalization of Chinese legal thought also calls for the study of communication and persuasion between authors and their audiences, which is another topic in rhetorical theory. In contrast to Western colonial powers, China is not willing to (or capable to) forcibly spread its legal thought in foreign countries. While some specific Chinese legal institutions may be influential abroad (such as the concept of internet sovereignty), Chinese legal thought needs to be perceived as persuasive in order to have a global footprint. This methodological point is discussed in an article entitled “Production and Global Dissemination of Chinese Legal Ideology: Implications for the Study of Illiberalism” (21,000 words), which is forthcoming with The Cardozo Journal of International and Comparative Law in 2023. 2. The PI and RA conducted a survey of contemporary Chinese legal scholarship on the idiosyncratic nature of Chinese legal thought as well as on a close reading of selected Chinese judicial decisions, which illustrate adjudicative techniques deployed by judges. To this end, the PI and the RA (who started his 12-months appointment on 10 July 2019) examined textual sources for the analysis and identified the most relevant sources for achieving the project objectives. After studying Chinese scholarship and policy texts, the PI and RA moved on to examine Chinese adjudicative techniques. The PI and RA chose to conduct this study by examining a selection of the Guiding Cases issued by the Chinese Supreme People’s Court (SPC). Guiding Cases are selected by the SPC to address particularly important issues in Chinese legislation and, consequently, they can be expected to display officially sanctioned Chinese adjudicative techniques. Fifty Guiding Cases were selected for analysis at this stage, starting from the most recently issued decisions. The findings from the above survey are discussed in the above-mentioned article entitled “Chinese Legal Thought on the Global and the Domestic Stage: A Rhetorical Study” and in an article tentatively entitled “A Global Turn in Chinese Legal Ideology?”, which is forthcoming with World Comparative Law. The former article describes how the idiosyncratic nature of Chinese legal thought is discussed in different genres of Chinese law. The so-called ceremonial genre of Chinese law – e.g., many ideologically oriented texts and political speeches – has insisted on the unique advantages of Chinese legal thought, without deliberating about these advantages. Some texts in the so-called deliberative genre of Chinese legal thought – which typically comprises legal scholarship – characterizing Chinese legal thought through its commitment to substantive justice and pragmatism. In these texts, the Chinese approach also fits contextual social realities better than the Western approach, serves the people’s needs better than the Western approach, and facilitates pragmatist and informal solutions better than the Western approach. The latter article focuses on the Xi Jinping era, pointing out that Chinese ideological ambitions have increased significantly in the ceremonial genre of speech compared to texts in the previous Hu Jintao era. 3. The third research objective concerned Chinese efforts to disseminate information about Chinese law in developing countries. This research objective was severly affected by the COVID-19 pandemic, which made it impossible to use much of the budget reserved for conducting interviews. Fortunately the PI was able to conduct a research trip to Nairobi, Kenya, from 3-17 November 2019, just before international travel became impossible and many Chinese legal development programs came to a halt. Nairobi was chosen as a destination because of Kenya’s close ties with China and because Kenyan (private sector) lawyers are relatively open to being interviewed on this topic. The PI conducted 13 interviews in Kenya, meeting Kenyan lawyers, academics and members of the international community. The interviews were semi-structured, generally addressing information about Kenya’s legal cooperation with China, the portrayal of Chinese law in legal development cooperation, Kenyan perceptions on Chinese law, and perceptions on the Chinese legal development model generally. Kenya was meant to be only a starting point for these interview studies, which are crucial for studying a relatively sensitive topic, such as Chinese legal development cooperation. Unfortunately, it was not possible to conduct more research trips due to the COVID-19 situation even with the maximum number of project extensions. The pandemic worsened suddenly in early 2022 due to the emergence of the omicron variant, which again closed international borders. Instead of conducting more field research, the PI completed a literary review on jurisprudence in China’s development partners, focusing on post-colonial legal theoretical scholarship in Kenya, Tanzania and Ethiopia. These findings are presented in the above-mentioned article entitled “Production and Global Dissemination of Chinese Legal Ideology: Implications for the Study of Illiberalism.” This article describes the image of Chinese law in Chinese government whitepapers and in the deliberative genre of Chinese law (mostly legal scholarship), which can provide potential arguments for Chinese legal development cooperation. 4. The above-mentioned article, “Production and Global Dissemination of Chinese Legal Ideology: Implications for the Study of Illiberalism,” examines the contrast between Chinese and Western legal thought, expanding this analysis to the production of legal ideology and persuasion. In order to gain more relevance for the article’s findings, the article also expands its scope from China to illiberal regimes (without classifying China as “an illiberal regime,” however). In addition to describing the above-mentioned statements about the unique advantages of Chinese legal thought (see part 5.3.3 above), this article explains how the production of ideological statements about Chinese law is influenced by China’s circumstances, which may differ from the “Western” circumstances and influence Chinese development experts’ ability to engage in persuasion in front of foreign audiences. 5. The above-mentioned article “Production and Global Dissemination of Chinese Legal Ideology: Implications for the Study of Illiberalism” discusses the potential policy-relevance of Chinese legal thought in developing countries, focusing on East Africa. Due to the tentative nature of Chinese legal development cooperation in this region – which was mostly halted during the COVID pandemic – this discussion relies on existing arguments in Chinese and East African legal discourses, assessing how East African audiences may respond to arguments about the relevance of Chinese law and legal ideology in East Africa. The theoretical framework for discussing this relevance is derived from rhetorical theory. The article describes how specific argumentative moves about the relevance of Chinese law (see above Part 5.3.3) relate to the rhetorical landscape in East Africa. | ||||||||||||||||||||||||
| Summary of objectives addressed: |
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| Research Outcome | |||||||||||||||||||||||||
| Major findings and research outcome: | This project has studied the as globalization of Chinese legal thought through the interaction between the domestic and global stages of Chinese ideological advocacy, using the tools of rhetorical theory. It has found that arguments about the nature and global significance of Chinese law are made for different purposes and for different audiences. The most ambitious statements about the global significance of Chinese legal thought are produced within a “ceremonial” genre of speech. Domestic Chinese ceremonial speech is meaningful in the Chinese context, but it translates poorly to globally influential ideological speech. Foreign audiences will find more persuasive arguments about the significance of Chinese legal thought in Chinese deliberative speech, such as parts of Chinese legal scholarship. While arguments made in the deliberative genre are more persuasive than ceremonial speech, specific argumentative moves within this genre are not always helpful for the international advocacy of Chinese legal thought. Moreover, arguments in the deliberative genre are not consistently reflected in Chinese judicial decisions. This analysis highlights the role of language and persuasion in the globalization of law. This project also highlights the differences between the production of ideology in different regimes, including China, “the West” and various illiberal regimes. First, the domestic priorities of illiberal ideological speech may not support ideological advocacy efforts in foreign contexts. Second, characteristically illiberal argumentative strategies may be less effective in front of foreign audiences than they are domestically. Third, illiberal ideological sensitivities may impair, or make unavailable, certain advocacy strategies, which could be effective in front of foreign audiences. As regards the advocacy of Chinese legal ideology, these challenges should be partly understood as consequences of domestic Chinese politics. While globally ambitious speech in CCP ideology and pro-establishment legal scholarship reflects China’s international aspirations, it does not aim to persuade foreign audiences about the advantages of Chinese legal thought. Despite such challenges, this project has concluded that Chinese ideological speech has been effective in foreign contexts. Among other things, Chinese ideological advocacy has made it easier for foreign politicians and legal scholars to criticize Western promotion of the rule of law and human rights. This project illustrates the possibilities and challenges of Chinese ideological advocacy efforts by situating various arguments about the advantages of Chinese legal thought within the East African context. | ||||||||||||||||||||||||
| Potential for further development of the research and the proposed course of action: |
As China is starting to open up to the world, Chinese legal development cooperation programs are likely to resume. When this happens, field research will again become possible and fruitful both in China and in China’s development partners. The methodological tools and theoretical frameworks established in this project will help researchers to assess the global relevance of Chinese legal thought in specific contexts. | ||||||||||||||||||||||||
| Layman's Summary of Completion Report: | China is commonly seen as an importer of legal thought rather than as its exporter. This oversight masks an important recent trend in the globalization of law. Today Chinese legal scholars and development experts believe that Chinese law is globally influential. China was active in disseminating information about its law to foreign lawyers before the COVID-19 pandemic. This research project has studied the globalization of Chinese law both as a matter of domestic Chinese politics and as a question of the foreign reception of Chinese law. The articles produced in this research project explain how Chinese legal scholars and experts see the unique features and advantages of Chinese law. For instance, some Chinese legal scholars argue that Chinese law is more just than “bookish” western law. Some Chinese legal scholars and government experts also argue that Chinese law presents profoundly new innovations for the world. The articles produced in this research project consider how such arguments about the unique nature of Chinese law and its advantages may be received in foreign regions and in East Africa, in particular. | ||||||||||||||||||||||||
| Research Output | |||||||||||||||||||||||||
| Peer-reviewed journal publication(s) arising directly from this research project : (* denotes the corresponding author) |
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| Recognized international conference(s) in which paper(s) related to this research project was/were delivered : |
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| Other impact (e.g. award of patents or prizes, collaboration with other research institutions, technology transfer, etc.): |
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| SCREEN ID: SCRRM00542 |