China Law: Change Is The Only Constant

Interesting article in the most recent Harvard Law Bulletin, entitled, Why China? [link no longer exists.  Article is an interview with Harvard Law Professor William Alford on the development of China’s legal system.  Professor Alford knows whereof he speaks.

Professor Alford talks about how “China is engaged in the most extraordinary effort at legal development in world history — raising fundamental questions not only about a singular rising power that is home to roughly 23 percent of the human race, but also about the very nature of law itself:”

To understand this, one needs to step back and appreciate the magnitude of change under way there. Transformations — including massive industrialization, urbanization and engagement in the world economy — that took place over more than a century in Britain and a half century in the U.S. have occurred in China within a far shorter span. It’s essentially the lifetime of our students, as I like to tell them. And unlike the English or American cases, this change in China started from a baseline of a planned economy and is occurring against the backdrop of global institutions like the World Trade Organization.

The scope of such change is hard for us to fathom. In a single generation, some 150 to 200 million people — more than the population of Japan — have moved from the countryside to cities, making this history’s largest internal migration. Individuals are increasingly able to make key life decisions about employment, education, housing and even marriage, that a generation ago were largely out of their hands. In 1980, China was a highly egalitarian, if very poor, society, but today it has some of the world’s greatest disparities economically, juxtaposing an upper stratum that is wealthy even by First World standards with a bottom stratum that remains impoverished even by Third World standards. And throughout, the Communist Party has been trying to retain its hold on political power, in the process exerting influence over the institutions of civil society — such as the media, the academy, religious institutions and civic associations — that might ease such major transformations.

Alford then talks about how law has become “crucial to facilitating China’s development and engagement in the international economy:”

As the economy and society have become vastly more complex, with more and more strangers dealing with one another, there is a growing need for rules. Some also look to law as a surrogate for freer political and civic institutions — that is, they hope to be able to express through law interests that are still difficult to advance directly via politics.

Lurking behind all this is the question of whether the government will cede sufficient independence to legal and political institutions so that they can provide outlets through which the inevitable discontent that comes from such rapid transformation can meaningfully and constructively be channeled.

The nature of Chinese lawyers has also undergone major changes.  Less than 25 years ago, China had 3,000 lawyers, most of whom “had a Soviet-style education and had not been allowed to practice during the decade of the Cultural Revolution.”   Today, China has around 150,000 lawyers.  “There is similar growth under way in the court system, the legislative process, legal education and many other aspects of the legal system.”

Alford praises the changes but notes they have not come without problems:

On the one hand, these are developments without precedent in world history, and we would do well to credit China with what it has accomplished. On the other, they have engendered the kinds of problems one might envision such sudden, large-scale, top-down change might bring. For instance, there is a dearth of wise gray heads to mentor the thousands of new lawyers — there are scarcely any lawyers over the age of 50 — and serious questions remain about the bar’s independence from the state, to mention some of the most critical challenges.

Professor Alford is of the view that Chinese legal history is important to understanding its present and that history is widely misunderstood.  He sees China as having “a long, rich and under-appreciated legal history:”

China had a sophisticated legal tradition that encompassed business, administrative, family and other concerns, not just penal matters, that there was an acute concern with justice, and that ordinary citizens did avail themselves of legal remedies.

This dispels suggestions that there is an antipathy in Chinese civilization toward law. And it’s useful to keep in mind when delving into specific questions. For instance, Chinese attitudes toward intellectual property — the protection of which is a major source of tension in the PRC’s relationship with the U.S. — bear the imprint of historic approaches, as I wrote a few years ago in my book on the subject.

Professor Alford believes the U.S. has much to offer China in helping it develop its legal systems, but he wisely counsels that any such assistance come “with an appropriate air of humility.” The U.S. must avoid presenting U.S. law as China’s only option:

Our lack of a broader comparative framework leads us to present the Chinese with only the American alternative to what they now do. Our advice would be much-enriched if it set forth a variety of alternatives, underscoring both core principles that are widely shared by democratic, law-abiding states and the range of different institutional forms through which such principles might be promoted. This would be far more empowering — it would suggest that the Chinese might design institutions suitable to their own circumstances to embody these core principles rather than endeavor to emulate institutions that may, in some respects, be peculiar to our own circumstances.

Good advise for we international lawyers who deal with China and with China lawyers every day.

Professor Alford is right to highlight the massive changes in China’s legal system in the last 25 years. Without exception, every lawyer with whom we work in China is under 45 years old and China’s laws are so new that even its judges complain to us about the lack of any real precedent. The massive changes China’s legal system is undergoing make this an exciting time, yet also call for patience.

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