Legal reform makes China better

Law and Reform in China

"The proposal was not accepted by the assembly," says the editorial comment on Li Buyun's article "Several Issues on Judicial Independence", published for the first time in 2002, in which the Chinese constitutional lawyer advocates institutional judicial reform to ensure judicial independence. The rejection of the party officials could apparently not take the wind out of the sails for Li Buyun, now director of the research institute for public law at the Chinese Academy of Social Sciences, which is closely linked to the State Council. The short commentary on his text closes with quiet emphasis: "The author believes that the establishment of an independent judicial system is mapped out as a trend of historical development."

There are reasons to doubt this hopeful assessment. Reading a selection of Li Buyun's articles published since 1979 helps to better understand where today's rule of law dialogues can tie in. The 31 essays deal, among other things, with the conceptions and theoretical foundations of human rights, the constitution and party, citizenship and the separation of powers. Brief remarks allow the classification in the political context and complete the volume to a multifaceted panorama of Chinese legal policy.

A central topic is the debate about the rule of law and the rule of man, in which Li Buyun took a firm stance on the rule of law when this term was still completely suspect among the leaders of the party headquarters. The convinced Marxist repeatedly emphasizes that the atrocities of the Cultural Revolution would have permanently discredited the rule of the “best minds” in the sense of Plato.

For the constitutional lawyer, the key moment in the constitutionalization of China is the third plenary session of the 11th Central Committee of the Communist Party of China, which in December 1978 initiated not only comprehensive economic reforms, but also legal reforms on the initiative of Deng Xiaoping. "We need a comprehensive and complete set of laws of the highest authority, which is applied strictly, reliably and without exception," says the plenary communiqué. Contrary to what Li Buyun sometimes sounds like, the reorganization of the law as a target was not on an equal footing with economic reforms, but was intended to serve them. Binding laws were intended to curb the fragmentation of central government and, following the arbitrary excesses of the Cultural Revolution, to strengthen confidence in the stability of the situation.

Minxin Pei, director of the China program of the Carnegie Endowment for International Peace, is believed to be more fragile today than ever. Pei paints a gloomy picture of the gigantic empire in transition. Behind the facade of unchecked growth, he reveals corruption, unrestrained deadweight mentality and a rapid crumbling of central power. Without political reforms, Hu Jintao's neo-authoritarian regime will soon have exhausted its economic vitality. Stuck in unfinished reform processes, China threatens to become an “incapable state”, whose weakness spills over into the world. Instead of becoming a new superpower, China could turn out to be a giant "that has failed to seize the historic opportunity to break with its authoritarian past and who pays a high price for it". This outlook is far too pessimistic, criticizes Andrew Nathan, political scientist at Columbia University, in Foreign Affairs.1 In his profound and provocative analysis of Chinese change, the lawyer Randall Peerenboom, who teaches at the University of California, also urges a differentiating view. The avowed communitarian, who himself practiced as a business lawyer in Beijing for several years, criticizes Western attempts to "transplant" an understanding of democracy and human rights to the East that is only particular and does not take into account the cultural peculiarities and traditions of China. For Peerenboom it is not a scandal to prioritize prosperity and internal security over the rule of law and democracy. This thesis should and must be argued, ideally in a West-East dialogue. Peerenboom's astute and highly topical book is strongly recommended. He urges his western readers to question their own certainties by vividly showing them the complexity of the Chinese transformation processes.

The book on Chinese “high-speed urbanization” published by Gregor Jansen, which arose from a scholarship project of the German Federal Cultural Foundation in cooperation with the Goethe-Institut Beijing and the ZKM Karlsruhe, tempts you to think further. The fascinating volume is both an exhibition catalog and a manual. The rapid changes of the past few years become tangible in images from everyday life in Chinese capitals. The texts deepen and explain, but are also evidence of a ruthless change that enables breathtakingly new things by destroying what is traditional - as with the radical demolition of entire old town quarters in the run-up to the 2008 Olympics.

In his dissertation in Zurich, Guido Mühlemann attempts to reconcile Chinese tradition with Western state thinking. As the legal historian himself admits, his access to the details remains necessarily limited, but opens up new approaches to wide-ranging questions of state and constitutional theoretical reception, which legal and political scientists will hopefully take up and continue with with enthusiasm.

When looking at the post-national model of the EU, for Chinese observers it is less the “legal community” in the sense of Hallstein that is of interest. The constitutional debate and the endless dispute over the “democratic deficit” also attract significantly less attention than the role of Europe in the world, as the political scientist Jing Men from the Free University of Brussels explains in a magazine review.2 EU “free of geopolitical conflicts”, one does not see oneself as “strategic competitor or enemy”. That is why the EU, China's largest trading partner, is becoming more attractive as a partner in a multipolar world order. The triangular relationship between the EU, the USA and China appears to be a promising alternative to American hegemony. Here, too, the polyphonic Europeans still have to find their way into their new role as global players

As Men learns, European studies have enjoyed a rapid upswing in the People's Republic since the early 1990s. More than 20 institutes and centers deal with politics, law and economics in the EU, in addition to numerous research institutions related to individual European countries. The new "EU-China Law School" initiated by the European Commission, the structure and concept of which is still being negotiated, is also intended to facilitate getting to know each other. Will you study European law there or discuss legal reforms? Are human rights issues negotiated alongside competition law? Or do fundamentals remain hidden in the practice-related business law curriculum?

In any case, the new law academy will “contribute to the integration of China and its young elites in the global concert,” said Foreign Commissioner Benita Ferrero-Waldner recently in Berlin. The “EU-China Law School” is an example of the “export of the rule of law” .4 The Commissioner's speakers could have read from the political scientist Nicole Schulte-Kulkmann that this phrase could echo in self-confident Chinese ears as a shrill misstep. In her actor-centered study of cross-border legal cooperation between China, Germany and the United States, she sheds light on a field shaped by foreign policy and economic interests. German legal advice in and for the People's Republic of China is, so their conclusion, largely provided by the state, by the Society for Technical Cooperation (GTZ). It is strongly formalized, closely linked to the China policy of the respective federal government and takes place as legislative advice mainly at a higher level, in dialogue with high-ranking representatives of the ministerial bureaucracy.

In the United States, on the other hand, legal cooperation with China is primarily carried out by non-state actors and therefore allows a more flexible response to the needs and inquiries of the respective cooperation partners, unaffected by the general political climate. Compared to the large and constantly growing number of up-and-coming Chinese lawyers versed in American law, the number of “German lawyers” trained within the framework of German-Chinese academic cooperation seems negligibly small, even if they are closely networked in the university and administrative landscape of China. The requirement of German language skills is a barrier that only a few overcome if the option of legal training in the English lingua franca is offered as an alternative. In view of the ever easier access to American jurisprudence and literature, it cannot be assumed that the DAAD's initiative to translate around 30 “standard works” of German legal literature will have a major impact on the training of Chinese lawyers and thus on future legal practice.

Meanwhile, the “state-sponsored” German initiatives and university collaborations are increasingly being supplemented by private actors. For the fourth time, Hamburg's Bucerius Law School is organizing a two-week course for young lawyers to introduce them to international and European business law together with the Chinese Academy of Social Sciences in Beijing this summer. As in the previous year, supposedly narrow economic perspectives could again expand into fundamental discussions about the rule of law and human rights. Successful legal cooperation is characterized above all by the development of networks of German and Chinese, American and Chinese lawyers, in which they themselves can become interfaces for contacts between institutions. In such networks, according to Nicole Schulte-Kulkmann, due to the same professional background, it is possible to discuss sensitive topics openly and constructively. You can also do the same with Li Buyun, who has researched several times as a guest at Columbia Law School in New York since 1988. In his essays, however, the EU does not appear any more than the post-national constellation. That surprises the western reader, because after all, it is not least the current transformations of classical statehood that bring us closer to China and make its uncertain future a cosmopolitan concern.

Li Buyun: Constitutionalism and China. Beijing: Law Press China 2006. 521 pages, 98.00

Yuan Minxin Pei: China’s Trapped Transition. The Limits of Developmental Autocracy. Cambridge, Mass .: Harvard University Press 2006, 306 pages, $ 45.00

Randall Peerenboom: China Modernizes. Threat to the West or Model for the Rest? Oxford / New York: Oxford University Press 2007, XV and 406 pages, $ 35.00

Gregor Jansen (Ed.): Total city. Beijing Case. High-speed urbanization in China. Cologne: Verlag der Buchhandlung Walther König 2006, 416 pages, € 38.00

Guido Mühlemann: China's experiments with western state ideas. A legal and contemporary study of the Chinese reception of European state ideas. Zurich / Basel / Geneva: Schulthess 2006, 419 pages, 85.00 Sfr

Nicole Schulte-Kulkmann: Legal cooperation with the People's Republic of China. German and American initiatives in comparison. Göttingen: V & R unipress 2005, 344 pages, € 56.00

Alexandra Kemmerer, born in 1972, is a research assistant at the Law Faculty of the University of Würzburg.